Baher Azmy, the legal director of the Center for Constitutional Rights (CCR), has flagged a very interesting ATS case that is due to be re-argued in light of the Supreme Court’s recent — and much discussed here at Opinio Juris — decision in Kiobel. Here is CCR’s description of the case, Al Shimari v. CACI:

Al Shimari  v. CACI was originally brought against L-3 Services Incorporated (formerly Titan Corporation), CACI International Inc., and Timothy Dugan, a former employee of CACI.  CACI and L-3 Services were the U.S. government contractors responsible for interrogation and translation services, respectively, at Abu Ghraib prison and other facilities in Iraq. L-3 Services and Timothy Dugan have since been dismissed as Defendants in the case. The complaint alleges that CACI directed and participated in illegal conduct, including torture, at the Abu Ghraib prison in Iraq where it was hired by the U.S. to provide interrogation services.   The four Plaintiffs had all been held at the “hard site” in Abu Ghraib prison.

The suit, brought under the Alien Tort Statute (ATS) and federal question jurisdiction, brings claims arising from violations of U.S. and international law including torture; cruel, inhuman, or degrading treatment; war crimes; assault and battery; sexual assault and battery; intentional infliction of emotional distress; negligent hiring and supervision; and negligent infliction of emotional distress. There are also civil conspiracy and aiding and abetting counts attached to most of these charges.  Through this action, Plaintiffs seek compensatory and punitive damages.

Among the heinous acts to which the four Plaintiffs were subjected at the hands of the Defendant and certain government co-conspirators were: electric shocks; repeated brutal beatings; sleep deprivation; sensory deprivation; forced nudity; stress positions; sexual assault; mock executions; humiliation; hooding; isolated detention; and prolonged hanging from the limbs.

All of the Plaintiffs are innocent Iraqis who were ultimately released without ever being charged with a crime. They all continue to suffer from physical and mental injuries caused by the torture and other abuse.

CCR makes a strong argument in the relevant brief that Al Shimari is precisely the rare ATS lawsuit that can survive Kiobel. First, CCR argues that Kiobel‘s presumption against extraterritorial application of the ATS should not even apply in Al Shimari, because the conduct in question occurred in Iraq during the US occupation, a period in which (quoting Rasul) the US had “complete jurisdiction and control” over Abu Ghraib (recall that the Coalition Provisional Authority had “all executive, legislative, and judicial authority” over Iraq at this time), making it effectively US territory. The fact that the US was functioning as the sovereign in Iraq at the time of the relevant conduct, CCR also points out, means that allowing the lawsuit to proceed would be unlikely to result in “international discord” between the US and Iraq.

Second, CCR argues that the relevant conduct does indeed “touch and concern” the US “with sufficient force to displace the presumption against extraterritorial application.” It notes that CACI is a US corporation headquartered in the US; that CACI’s immunity from Iraqi legal process made it subject to US law; and that the conduct in question was directed from the US. It also notes that the US’s control over Abu Ghraib is — or should be — relevant to the “touch and concern” analysis.

Third, and finally, CCR claims that ATS lawsuits involving war crimes and torture should always be deemed to satisfy Kiobel, especially where — as in Al Shimari — the perpetrators of those crimes are present in the US. It argues that the potential for “international discord” is minor in such lawsuits, because war crimes and torture are types of conduct that all states are obligated to prevent and punish.

I am skeptical that CCR’s third argument will convince many federal courts post-Kiobel. Its first and second arguments, however, seem very compelling. I hope our resident and extraterritorial experts on the ATS will weigh in.

This according to the Commission of Inquiry on Syria, which has considerable investigative ability. Reuters:

(Reuters) – U.N. human rights investigators have gathered testimony from casualties of Syria’s civil war and medical staff indicating that rebel forces have used the nerve agent sarin, one of the lead investigators said on Sunday.

The United Nations independent commission of inquiry on Syria has not yet seen evidence of government forces having used chemical weapons, which are banned under international law, said commission member Carla Del Ponte.

“Our investigators have been in neighboring countries interviewing victims, doctors and field hospitals and, according to their report of last week which I have seen, there are strong, concrete suspicions but not yet incontrovertible proof of the use of sarin gas, from the way the victims were treated,” Del Ponte said in an interview with Swiss-Italian television.

“This was use on the part of the opposition, the rebels, not by the government authorities,” she added, speaking in Italian.

Recent news reports indicate that the Obama administration has been rethinking its opposition to arming the Syrian rebels. The Commission’s revelations, if true, not only complicate that idea but also deprive those who (in my view misguidedly) want to invoke the responsibility to protect to justify military intervention in Syria of one of their most potent rhetorical weapons. It’s easy to justify intervening in a civil war when one side is “good” and the other is “bad.” The situation is much more complicated, however, when a civil war involves two bad sides, even if one side — here, clearly the Syrian government — is worse than the other.

PS. As Ty McCormick points out at FP.com, the Commission’s findings would seem to validate Obama’s unwillingness to conclude — as demanded by the British, French, and Israelis — that the Syrian government has been responsible for using chemical weapons.

The Office of the U.N. High Commissioner for Human Rights seems to be condemning the forced feeding of hunger-striking Guantanamo detainees as torture, or perhaps as cruel, inhuman, and degrading treatment in violation of the Convention Against Torture.

Force-feeding hunger strikers is a breach of international law, the UN’s human rights office said Wednesday, as US authorities tried to stem a protest by inmates at the controversial Guantanamo Bay jail.

“If it’s perceived as torture or inhuman treatment — and it’s the case, it’s painful — then it is prohibited by international law,” Rupert Coville, spokesman for the UN high commissioner for human rights, told AFP.

This statement makes great headlines, but I don’t have any idea what exactly Coville is saying.  If its painful, then it is torture or inhuman treatment prohibited by international law? “If it’s painful” is not exactly a very demanding standard.  And the World Medical Association standards aren’t necessarily binding nor have they achieved total consensus.

As this Reuters report notes, U.S. courts, and even the European Court of Human Rights, have held that not all forced feeding is illegal.  Even in holding a particular forced feeding a violation of European human rights law, the ECtHR seems to have carved out an exception for “preserv[ing] the life of hunger strikers if shown to be medically necessary and not done for punitive reasons.”

So if that’s right, I think the OHCHR is acting rashly by issuing a blanket condemnation of all force feeding as a violation of international law, or even condemning the Gitmo force-feedings without any acknowledgment of the possible legal justifications.  It makes good headlines, but it should not be taken as an authoritative legal judgment or conclusion.  No doubt force feeding is horrible, and maybe the type of force feeding in Gitmo does cross the line (doesn’t sound like it, but I suppose it is possible).   But let’s not be so quick to assume its always illegal.

I want to take a moment to spruik (if you don’t know the word, look it up!) Jeffrey Kahn‘s new book, Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists, which has just been published by the University of Michigan Press. Here is the publisher’s description:

Today, when a single person can turn an airplane into a guided missile, no one objects to rigorous security before flying. But can the state simply declare some people too dangerous to travel, ever and anywhere? Does the Constitution protect a fundamental right to travel? Should the mode of travel (car, plane, or boat) or itinerary (domestic or international) make a constitutional difference? This book explores the legal and policy questions raised by government travel restrictions, from passports and rubber stamps to computerized terrorist watchlists.

In tracing the history and scope of U.S. travel regulations, Jeffrey Kahn begins with the fascinating story of Mrs. Ruth Shipley, a federal employee who almost single-handedly controlled access to passports during the Cold War. Kahn questions how far national security policies should go and whether the government should be able to declare some individuals simply too dangerous to travel. An expert on constitutional law, Kahn argues that U.S. citizens’ freedom to leave the country and return is a fundamental right, protected by the Constitution.

As an American who lives abroad but likes to see his family, I will avoid casting aspersions on terrorist watchlists. I’ll leave that to Jeff. Make sure to check out his book!

New evidence that Syria has used chemical weapons against insurgents have spurred new calls here in the U.S. for military action in Syria.  Here is the LA Times (hardly an interventionist paper):

An American or multilateral response should of course be proportional to the offense. That means considering whether chemical weapons were used against civilians or militants, and whether a “whole bunch” were used, as Obama put it, or much less. But there’s no doubt that an operation to secure or destroy the regime’s chemical weapons would be consistent with this country’s stated commitment (one that all too often has not been honored) to protect civilians from the worst ravages of war.

The editorial was plainly drafted carefully with some knowledge of the legal issues that would apply to such an operation.  First of all, there is that pesky U.S. Constitution, Article I, Section 8 which many folks think grants the the U.S. Congress the exclusive power to authorize U.S. military force.  I don’t think the editorial envisions President Obama seeking congressional authorization, so it is probably assuming he would act under his inherent Commander-in-Chief powers. (When George W. Bush was president, newspapers like the LA Times used to worry about the unilateral exercise of this type of power, but these days, not so much.)

Second, there is the international law governing the use of force. I raised this question back in December, when President Obama drew his red line, suggesting that the self-defense justification under the U.N. Charter can’t work here.  This post drew two very good responses from experts in the field, one from Daniel Bethlehem (formerly the chief legal advisor to the UK’s Foreign Office) and the other from Ashley Deeks (former legal advisor to the U.S. State Department, now UVA Law Prof).

My earlier post offered a simple no-frills reading of the U.N. Charter, building on the simple no-frills reading of the U.N. Charter critics of the Iraq War were fond of making in the Bush years. This was a useful strawman, since I pointed out it would lead to a “silly result.”  Still, I am not totally sold on the more sophisticated rationales offered by Daniel and Ashley.  As far as I know, Syria has not threatened (at least recently) to attack its neighbors. I don’t count its skirmishes with Turkey, which seem in any event to have settled down. It has certainly not threatened use of chemical weapons against Turkey, Israel, or anyone other than the Syrian rebels.  I am just not buying self-defense here, unless we really are back in 2002 and President Bush’s doctrine of preemptive self-defense for WMDs has achieved international consensus.

What is it about chemical weapons that changes the legal calculus? Sure, I realize the use of chemical weapons here is a plain and blatant violation of the law of armed conflict, and really horrible in every way possible.   But as horrible as it is, I wonder why chemical weapons would be the trigger since the casualties from the non-chemical weapons in Syria has been much worse. And what is it about chemical weapons that would per se justify humanitarian intervention, while the mass bombings or killings of thousands of civilians would not?

I am guessing the answer here is going to come from a different path that has nothing (formally) to do with chemical weapons.  Since the U.S. has recognized the Syrian opposition as the legitimate government of Syria, I suppose consent for an intervention can be had without too much trouble. But, this opposition doesn’t exactly have widespread recognition, and doesn’t really control most of the country. Still, it probably is the least difficult legal path.

When President Obama said using chemical weapons would “cross a red line,” he must have had something in mind, unless it was a total bluff.  A unilateral U.S attack is very possible, and may even be desirable.  But legality is going to have to be finessed in ways that critics of the Iraq War should not be happy with.

Two years ago, I wrote a long post analyzing the most serious charge in Bradley Manning’s court martial — aiding the enemy, a violation of Art. 104 of the Uniform Code of Military Justice (UCMJ) and 10 USC 904. I claimed in the post that someone like Bill Keller, the Executive Editor of the New York Times during the WikiLeaks era, could not face similar charges, because the UCMJ applies only to soldiers.

I was wrong.

Here is the text of Art. 104 (my emphasis):

“Any person who—

(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or

(2) without proper authority, knowingly harbors or protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct.”

The key here is “any person.” Such broad personal jurisdiction is very unusual among the UCMJ’s punitive articles; the only other ones that use it are Art. 83 (fraudulent enlistment in the armed forces) and Art. 106 (spying). All of the other punitive articles have more limited jurisdiction, applying only to “any person subject to this chapter” (such as solicitation, Art. 82) or “any member of the armed forces” (such as desertion, Art. 85). The difference is critical, because it means that a person does not have to be subject to the UCMJ to be subject to court-martial for aiding the enemy. Indeed, both Art. 104 and Art. 2 in the Manual for Courts Martial (MCM) are explicit on that point. Here is the MCM’s explanation of Art. 104 (emphasis added):

Scope of Article 104. This article denounces offenses by all persons whether or not otherwise subject to military law. Offenders may be tried by court-martial or by military commission.

And here is the MCM’s explanation of Art. 2 (emphasis added):

(1) Authority under the code. Article 2 lists classes of per­sons who are subject to the code. These include active duty personnel (Article 2(a)(1)); cadets, aviation cadets, and midship­ men (Article 2(a)(2)); certain retired personnel (Article 2(a)(4) and (5)); members of Reserve components not on active duty under some circumstances (Article 2(a)(3) and (6)); persons in the custody of the armed forces serving a sentence imposed by courtmartial (Article 2(a)(7)); and, under some circumstances, speci­fied categories of civilians (Article 2(a)(8), (9), (10), (11), and (12); see subsection (3) and (4) of this discussion). In addition, certain persons whose status as members of the armed forces or as persons otherwise subject to the code apparently has ended may, nevertheless, be amendable to trial by court-martial. See Article 3, 4, and 73. A person need not be subject to the code to be subject to trial by court-martial under Articles 83, 104, or 106.

There is no reason, then, why Bill Keller could not be court-martialed for aiding the enemy. And indeed, for all the reasons I discussed in my post two years ago, he is no less guilty of that crime than Bradley Manning. Here are the elements of aiding the enemy via communication:

(5) Communicating with the enemy.

(a) That the accused, without proper authority, communicated, corresponded, or held intercourse with the enemy, and;

(b) That the accused knew that the accused was communicating, corresponding, or holding intercourse with the enemy.

If Manning has aided the enemy, so has Bill Keller. The crux of the government’s argument is this (see Specification 1 on the charge sheet): (1) Manning gave classified documents to WikiLeaks; (2) Manning knew that WikiLeaks would publish the documents on the internet; (3) the “enemy” — basically al-Qaeda and its associated forces — had access to the documents on the internet; (4) Manning thus indirectly communicated with the enemy. That argument, however frightening, is unfortunately far from frivolous. The crime does not require any intention to communicate with the enemy, much less an intention to harm the United States; as the MCM commentary says,”the intent, content, and method of the communication, correspondence, or intercourse are immaterial.” Nor does the crime require proof that the enemy actually received the prohibited communication: “[t]he offense is complete the moment the communication, correspondence, or intercourse issues from the accused.”

The government’s argument obviously applies to Bill Keller no less than to Bradley Manning. Indeed, in one respect, the case against Keller is even stronger than the case against Manning. Manning “communicated with the enemy” indirectly: he gave the documents to WikiLeaks; he did not post them on the internet himself. Keller, by contrast, authorized the New York Times to post Manning’s documents on its website, where anyone — al-Qaeda included — could find it. His communication with the enemy was thus direct, not indirect.

To be clear, I am categorically opposed to prosecuting anyone, Bradley Manning or Bill Keller, for “aiding the enemy” in circumstances like these. It is impossible to overstate the chilling effect the government’s argument — that causing intelligence to be posted on the internet qualifies as communicating with the enemy — will have on media freedom. But there is not simply moral equivalence between Manning’s actions and the actions of the New York Times. There is legal equivalence, as well. So if Manning deserves to be court-martialed for aiding the enemy, Bill Keller should be in the dock with him.

Literally.

In the wake of Obama’s memorable statement, a number of bloggers have questioned whether the Boston bombings deserve to be labeled “terrorism.” Most of those bloggers — such as the excellent Ali Abuminah here – emphasize that many US definitions of terrorism require the violent act in question to be politically or ideologically motivated, which is still an open question with regard to the Tsarnaev brothers’ actions.

I’m sympathetic to this position — and I wholeheartedly agree with Abuminah’s observation that “acts of violence, especially mass shootings, carried out typically by white males, are immediately labeled as the acts of ‘disturbed individuals’ while the acts of a person identified as ‘Muslim’ are to be labeled ‘terrorism’ regardless of the facts.” But it is important to acknowledge that not all definitions of terrorism require a political or ideological motivation — including the one that is most relevant to the Boston bombings, the International Convention for the Suppression of Terrorist Bombings (“Terrorist Bombing Convention”), which is codified in the US Code at 18 USC 2332f. Here is the international definition:

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

(a) With the intent to cause death or serious bodily injury; or

(b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

And here is the US definition:

(a) Offenses -

(1) In general – Whoever unlawfully delivers, places, discharges, or detonates an explosive or other lethal device in, into, or against a place of public use, a state or government facility, a public transportation system, or an infrastructure facility -

(A) with the intent to cause death or serious bodily injury,
or
(B) with the intent to cause extensive destruction of such a place, facility, or system, where such destruction results in or is likely to result in major economic loss,

shall be punished as prescribed in subsection (c).

The Boston bombings clearly qualify as terrorism under either definition. There is also no question that the Terrorist Bombing Convention applies, because one of the victims of the bombings was a Chinese national. (The Convention excludes acts that take place in one state and involve only nationals of that state.) The US version is a bit more complicated, because 18 USC 2332f requires a bombing to have a substantial effect on foreign or interstate commerce if jurisdiction is predicated — as it would be here — on the fact that the bombing killing a foreign national. But I agree with Bobby Chesney that the bombings almost certainly do have the requisite effect.

Again, I think it’s unfortunate that the label “terrorism” is almost always reserved for violent acts committed by Muslims, even though domestic groups (from right-to-lifers to neo-Nazis) pose a much greater threat to Americans living in the US. But that doesn’t change the fact that setting off bombs in the middle of a marathon does indeed qualify as terrorism.

NOTE: I should add that, as a normative matter, we should restrict the term “terrorism” to violent acts that are politically or ideologically motivated. I think it is precisely the presence of such a motivation that distinguishes terrorism from “ordinary” criminality. Alas, the international community does not seem to agree, at least for certain kinds of weapons.

An opinion piece in Al-Jazeera by an international lawyer who works with the Palestinians, John Whitbeck, reports some interesting comments by Fatou Bensouda about Palestinian ratification:

During a public discussion held at the Academie Diplomatique Internationale in Paris on March 20, Fatou Bensouda, the Prosecutor of the International Criminal Court, addressed the potential membership of Palestine in the ICC. During the question time, she was asked:

“If and when the State of Palestine, whose state status has now been overwhelmingly confirmed by the UN General Assembly, revives its application for ICC membership, what will be the procedure for considering its application and, if it is approved, would the court’s jurisdiction be retroactive to 2002, permitting prosecutions for crimes already committed in Palestine or by Palestinians?”

She started her reply by recalling why Palestine’s initial application was not approved — essentially, as was clear from the ICC’s response, the court’s view that it was not the role of the court, but rather the role of the UN General Assembly, to determine who was or was not a state. She then went on to say that, now that the UN General Assembly had made its determination that Palestine is a state, “the ball is now in the court of Palestine”, “Palestine has to come back” and “we are waiting for them”.

While she said, unsurprisingly, that any new application would have to be considered, there was no ambiguity or suspense as to the result of the requisite consideration. It was clear that, in her eyes, ICC membership for the State of Palestine was Palestine’s for the asking. There was even a hint of puzzlement that the ICC had not heard from Palestine subsequent to the UN vote. 

On the issue of retroactivity, she said that she did not think that any retroactivity could extend back to the birth of the court in 2002 – at most, if prior to Palestine’s formal accession to the Rome Statute, to November 29, 2012, when the UN General Assembly determined the issue of Palestine’s state status.

There is nothing particularly new here, but the retroactivity comment is useful. As a theoretical matter, I think the ICC could determine that Palestine qualified as a state prior to the UNGA resolution upgrading its status. But I think that the Court would be well-advised to take a conservative approach to Palestinian ratification — and as Whitbeck notes in his piece, the less retroactive Palestine’s acceptance of the Court’s jurisdiction (perhaps even purely prospective, from the date of ratification), the more difficult it will be for Israel to complain about it.

That said, as I’ve pointed out before, Palestine has reason to be wary of even prospective ratification. The ICC would find it much easier to prosecute Hamas’s rocket attacks on Israel than Israel’s expansion of the settlements or disproportionate attacks on Gaza.

Apparently, the answer is yes, according to Professor Jeremi Suri of the University of Texas writing in the New York Times:

The Korean crisis has now become a strategic threat to America’s core national interests. The best option is to destroy the North Korean missile on the ground before it is launched. The United States should use a precise airstrike to render the missile and its mobile launcher inoperable.

President Obama should state clearly and forthrightly that this is an act of self-defense in response to explicit threats from North Korea and clear evidence of a prepared weapon. He should give the leaders of South Korea, Japan, China and Taiwan advance notice before acting. And he should explain that this is a limited defensive strike on a military target — an operation that poses no threat to civilians — and that America does not intend to bring about regime change. The purpose is to neutralize a clear and present danger. That is all.

I am highly dubious about this action as a policy matter, but I think that such a strike would be legal as a “preemptive” act of self-defense under international law.  Even for those wedded to the possibly outdated Caroline principle, I think the various statements by North Korea (including denouncing the armistice and making specific threats against South Korea and the United States) and its act of moving its missile into launch position would satisfy the Caroline’s imminence requirement.  I think a surgical strike that targeted only the missile would satisfy the proportionality requirement.

I am somewhat skeptical of Prof. Suri’s assurance that this will actually improve the security situation in Korea and Secretary Kerry seems to be going in the opposite direction.  But I do think he is right in putting this option on the table.   In any event, legal concerns should not constrain U.S. actions here.

Since I was unable to attend their book launch at Georgetown yesterday, the least I can do is put in a hearty plug for a new casebook written by a number of superb IHL scholars: Geoff Corn, Victor Hansen, Chris Jenks, Richard Jackson, Eric Jensen, and James Schoettler. It’s entitled The Law of Armed Conflict: An Operational Approach, and it more than lives up to its name — which not surprising, given that all of the authors have vast experience in the military. Here is the description:

The Law of Armed Conflict: An Operational Approach comes to students with stunning authority. All of the authors are active or retired United States Army officers with more than 140 years of collective military operational experience among them. Several have experience in both legal and operational assignments as well.  They deliver a comprehensive coverage of all aspects of the law of armed conflict, explaining the difference between law and policy in regulation of military operations. The Law of Armed Conflict provides a complete operational scenario and introduction to the operational organization of United States forces. The focus remains on United States law perspective, balanced with exposure to areas where the interpretation of its allied forces diverge. Jus ad bellum and jus in bello issues are addressed at length. Rich with documentation and examples, the text includes excerpts from treaties and treaty commentaries, domestic and international cases, Department of Defense directives, service field manuals, and regulations implementing legal obligations. Its unique pedagogy is based on overviews of each topical area of the law and utilizes a wartime scenario. Students experience operational legal issues from pre-deployment preparation through post-conflict stability operations to war crimes investigation and prosecution. Carefully crafted problems, most based on actual operational experience, follow each chapter and place the student in the position of a military legal adviser providing operational legal advice.  In this way, students enhance their understanding of the relevance of the law in planning and executing military operations. Designed for either a three or four credit offering, 14 chapters correspond to a 14-week course.

A robust ancillary package accompanies the text with solutions to all study problems, model exam questions (multiple choice, short answer, essay,) recommended supplemental sources, suggested video clips to illustrate issues, Power Point slides for each chapter, and a website with links to all primary sources.

I have already used the book in my scholarship multiple times, and I am sure it will be a great text for any IHL course. The operational emphasis is particularly exciting; when I’ve taught IHL to UN field officers and to officers from various militaries, I’ve always found practical exercises to be the most effective way to convey the basic rules and principles of IHL. Anyone who teaches IHL will definitely want to check the book out.

Stewart Baker over at Volokh has a couple of interesting posts here and here on the new cybersecurity legislation that bars federal government purchases of IT equipment “produced, manufactured or assembled” by entities “owned, directed, or subsidized by the People’s Republic of China” unless the head of the purchasing agency consults with the FBI and determines that the purchase is “in the national interest of the United States. Here’s the key language:

Sec. 516. (a) None of the funds appropriated or otherwise made available under this Act may be used by the Departments of Commerce and Justice, the National Aeronautics and Space Administration, or the National Science Foundation to acquire an information technology system unless the head of the entity involved, in consultation with the Federal Bureau of Investigation or other appropriate Federal entity, has made an assessment of any associated risk of cyber-espionage or sabotage associated with the acquisition of such system, including any risk associated with such system being produced, manufactured or assembled by one or more entities that are owned, directed or subsidized by the People’s Republic of China.

(b) None of the funds appropriated or otherwise made available under this Act may be used to acquire an information technology system described in an assessment required by subsection (a) and produced, manufactured or assembled by one or more entities that are owned, directed or subsidized by the People’s Republic of China unless the head of the assessing entity described in subsection (a) determines, and reports that determination to the Committees on Appropriations of the House of Representatives and the Senate, that the acquisition of such system is in the national interest of the United States.

Baker raises the issue of whether such legislation would fall under the security exception in the WTO procurement agreement. Baker expressed concern that “the US Trade Representative’s office had negotiated a strikingly weak security exemption for the WTO procurement code…. The US can make a good case that attacks on the Commerce Department or the Justice Department information systems threaten national security, but it’s hard to argue that the IT systems those departments buy are themselves indispensable for national security.” But he ignores the critical point of the security exception, which is that the provision is self-judging. It doesn’t matter if, objectively speaking, the IT systems are indispensable for security. What matters is whether the United States considers such restrictions to be necessary for its essential security interests.

I have written extensively about the WTO security exception, and the bottom line is that despite numerous security crises that have come before the GATT/WTO–the Marshall Plan, the Falkland War, the Reagan Doctrine, the War in Yugoslavia, the secondary boycott against Cuba, the Arab League Boycott against Israel–there has never been a case actually adjudicating the security exception. The reason is that Member States’s recognize that national security questions are self-judging. Each Member State decides for itself whether action is necessary for its essential security interests.

Article XXI of GATT 1947 and Article XXIII of the Government Procurement Agreement both have such language. Baker focuses on the language in Article XXIII requiring that the procurement be “indispensable for national security or for national defence purposes.” But the operative language is that “[n]othing in this Agreement shall be construed to prevent any Party from taking any action … which it considers necessary for the protection of its essential security interests relating to … procurement indispensable for national security or for national defence purposes.” Unlike the general exceptions, the security exceptions in GATT 1947 and the Procurement Agreement are self-judging, analogous to the political question doctrine in U.S. constitutional law. If the United States makes a determination that Section 516 is necessary for its essential security interests, at least with respect to WTO compliance, that is the end of the matter.

Of course, it may seem counterintuitive that a self-judging exception could be embedded into the WTO agreements, a subject that I discuss in some detail in the article. Wouldn’t such a self-judging exception swallow the rule? For a variety of reasons, the answer is a resounding no. International trade law, viewed by many as the most intrusive branch of international law, has preserved one enclave of complete national sovereignty without undermining the efficacy of the WTO.

It’s always exciting when the media pays attention to expert reports on international law. Unfortunately, the media all too often gets international law wrong — and recent reporting on the Tallinn Manual on International Law Applicable to Cyber Warfare is no exception. There has been a spate of articles in the past couple of days that breathlessly claim the Tallinn Manual permits the use of lethal force against hackers. The Huffington Post’s article is entitled “Report for NATO Justifies Killing of Hackers in a Cyberwar.” According to the Verge, “Killing Hackers is Justified in Cyber Warfare, Says NATO-Commissioned Report.”  And Silicon Angle claims that “Hacktivists Can Be Killed Under Rules of CyberWarfare.”

Does the Tallinn Manual permit a hacker to be killed? Yes, in extraordinary circumstances. But the articles mentioned above each fail to mention that the Manual imposes very significant limits on the use of lethal force against individuals involved in cyber-warfare — and that all of those limits are based on, and reflect, the traditional rules of international humanitarian law (IHL). There is nothing particularly troubling in the Manual, and I say that as someone who is profoundly sympathetic to hacking collectives like Anonymous. Indeed, properly understood, it almost inconceivable that the Manual would permit a state to use lethal force against Anonymous or a similar collective — no matter how dangerous (in the view of a state) their hacking might be.

To begin with, the Tallinn Manual deserves credit for not conflating the jus ad bellum and the jus in bello…