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Judge Pohl: the US and AQ Were Engaged in Hostilities in 1775

by Kevin Jon Heller

Okay, I’m exaggerating.  But only slightly.  As Wells Bennett notes today at Lawfare, Judge Pohl has rejected al-Nashiri’s contention that the US and al-Qaeda were not engaged in hostilities (an armed conflict in IHL terms) at the time of the acts alleged in his indictment — primarily the attack on the USS Cole in 2000 – thereby depriving the military commission of jurisdiction over those acts. I have explained before (see here and here) why al-Nashiri’s argument is correct. Unfortunately, but completely unsurprisingly, Judge Pohl disagrees.  It is worth examining his four-page decision in detail, because it illustrates why the military commissions are so deeply and irremediably flawed.

Here is the first substantive paragraph:

Whether hostilities existed on the date  of the acts alleged to have been committed by the accused is as much a function of the nature of hostilities as any particular legally significant act by either the legislative or executive branches of government. Whether hostilities existed on the dates of the charged offenses necessarily is a fact-bound determination; moreover, whether a state of hostilities existed is as much a function of the will of the organization to which the accused is alleged to belong to as the U.S. government. In determining whether hostilities exist or do not exist, the enemy gets a vote.[1] Whether Al Qaeda, the organization of unprivileged enemy belligerents to which the accused is alleged to be a member, considered itself to be at war with the United States on the date of the alleged law of war violations is a factor among many to be considered by the trier of fact and is as relevant as any judgments made or withheld by the President or the Congress.

This is patently incorrect.  Whether a state is engaged in an armed conflict with a non-state actor is a purely factual determination, one that depends (sound familiar?) on the organization of the non-state actor and the intensity of hostilities between the non-state actor and the state.  Full stop. Whether a non-state actor believes it is “at war” with a state is irrelevant to that determination; it is not “a factor among many.”

But perhaps Judge Pohl is aware of legal precedent that I’m not.  After all, he footnotes his claim! So let’s see what the footnote says (emphasis mine):

“In connection with the plan of a campaign we shall hereafter examine more closely into the meaning of disarming a nation, but here we must at once draw a distinction between three things, which as three general objects comprise  everything else within them. They are the military power, the country, and the will of the enemy. The military power must be destroyed, that is, reduced to such a state as not to be able to prosecute the war. This is the sense in which we wish to be understood hereafter, whenever we use the expression “destruction of the enemy’s military power.” The country must be conquered, for out of the country a new military force may be formed. But if even both these things are done, still the war, that is, the hostile feeling and action of hostile agencies, cannot be considered as at an end as long as the will of the enemy is not subdued also…” Carl von Clausewitz, On War Book I Chapter 2 (1832) (emphasis added). In other words, whether the enemy has the will to make war is determinative of whether hostilities begin to exist, continue to exist, or have been terminated.

Yes, indeed: Judge Pohl’s only citation for the idea that a non-state actor can declare war against a state is an 1832 quote from Clausewitz about conflicts between states.  Had he chosen to do so, of course, Judge Pohl could have provided a slightly more relevant — and slightly more recent — citation, such as Quincy Wright’s widely-accepted conclusion that insurgents, “not being recognized states, have no power to convert a state of peace into a state of war.  So their declaration or recognition of war would have no legal effect.”  Judge Pohl must have missed that one.

Onward to the next paragraph…

Jennifer Daskal in the NYT on Why to Not Close Guantanamo (For Now)

by Kenneth Anderson

Jennifer Daskal (who, I’m delighted to say, has just accepted an offer to join the faculty at my school, Washington College of Law) has an important op-ed in the New York Times today titled, simply, “Don’t Close Guantanamo.”  Many of us know Jen Daskal from her earlier positions in the Obama administration Justice Department and, before that, Human Rights Watch – where these were her issues.  So why not close Guantanamo?  Her core point hinges on the notion of deeming an end to the conflict in a legal sense – the conflict as defined under the AUMF – as highlighted by just-stepped-down Department of Defense General Counsel Jeh Johnson in one of his final speeches:

The political reality is that closure of Guantánamo is unlikely to happen anytime soon, and if it did, it would do more harm than good. We should instead focus on finding places to transfer those cleared to leave the facility and, more important, on defining the end to the war.

In a recent speech, Jeh Johnson, then the Department of Defense general counsel, discussed a future “tipping point” at which Al Qaeda would be so decimated that the armed conflict would be deemed over. Statements from high level officials suggest that this point may be near. And as the United States pulls out of Afghanistan, there is an increasingly strong argument that the war against Al Qaeda is coming to a close. With the end of the conflict, the legal justification for the detentions will finally disappear.

At that point, the remaining men in Guantánamo can no longer be held without charge, at least not without running afoul of basic constitutional and international law prohibitions. Only then is there a realistic hope for meaningful closure, not by recreating a prison in the United States but through the arduous process of transferring, releasing or prosecuting the detainees left there.

In the meantime, we should keep Guantánamo open.

Framed against the idea that a formal legal end to the conflict might be forthcoming sooner rather than later, Daskal’s arguments for not closing it now seem much less an about-face than the op-ed title might suggest.  The argument is essentially strategic as a matter of timing; far from giving up on closing Guantanamo, it argues that the legal timing matters quite a lot to actually getting there. Given that, I’m not sure there’s that much daylight between her position and Deborah’s, for example, in relation to Deborah’s comments on this same Jeh Johnson speech. But as Ben Wittes notes at Lawfare, this is a brave move by Daskal, given the world from which she comes:

[T]he truth is that the argument is different coming from Jen, a committed human rights advocate, than coming from [Wittes]. The human rights movement has been rigidly and dogmatically—and irrationally—dug in on this matter. And very few people have had the guts to state simply that given the way things have played out, Guantanamo’s closure isn’t the ideal outcome. If the administration could come to where Jen has come here, significant policy opportunities for a different relationship with Congress over detention would open up. It’s great that Jen is willing to say in public that the emperor has no clothes.

The basic debate here will gradually turn (I believe Daskal is right to suggest) and hinge on the meaning of the end of the conflict. At this point, what we have in the way of administration statements on this is Jeh Johnson’s somewhat delphic speech – it has something on which everyone can hang their hat if they want to.  That is not a failing of the speech, to be clear – it had to be hedged in many ways (and Jack Goldsmith has commented on many of them).  It is far from insignificant, as I remarked at Lawfare when the speech was first delivered, to recognize the possibility of an end to the conflict and to begin cautiously to lay out the general conditions for it and what they mean in legal terms.

Still, no one should think they can know today when that point will come and exactly how it will be defined, either as a general proposition or in the factual circumstances as they develop; Johnson was explicit about this.  A lot of what is being said in commentary on this is less analysis, however, than lobbying on exactly this issue.  But consider how wide the gaps are between declaring an end to the conflict in a legal sense, and stating precisely and concretely what that means.  One the one hand, the speech talked about the end of the conflict and the importance of defining its meaning in legal terms.  On the other hand, it recognized with respect to detention that there would be people who might never be tried or released, and it cautiously hinted at legal reasons that might cover this.

Moreover, it was also clear in Johnson’s speech that an end to the conflict, in the US legal view, would not thereby terminate the US’s legal authorities to use force abroad, in targeted killing or other operations. Those legal justifications might shift or be articulated differently in both international and domestic law terms.  But whether in relation to on-going threats that might be put under the AUMF (arising from actors that might or might not be characterized as “affiliated” forces with Al Qaeda), or in relation to brand new kinds of threats, the end of the conflict would not be seen as somehow shutting down the President’s authority to engage in self-defense actions.  Johnson’s speech was enormously important, but mainly it quite deliberately (and correctly) raised questions of law and policy rather than answering them.

In that regard, Daskal’s op-ed, while heretical on the surface, actually laid down a strategic marker to challenge the administration to go ahead and find a way to declare the conflict legally over – and to figure out what it thinks that would mean in legal terms for detainees at Guantanamo. Daskal laid down that marker with a strong inflection that the end of the conflict would be the basis for closing Guantanamo, and would put the necessity of that closure on a far firmer footing, both legally and politically.

Palestinian Statehood and Retroactive Jurisdiction

by Kevin Jon Heller

A number of commentators have challenged my claim that Articles 11(2) and 12(3) of the Rome Statute would permit Palestine to accept the ICC’s jurisdiction retroactively, whether as a member-state or on an ad hoc basis. Here, for example, is what my friend Jennifer Trahan wrote yesterday at IntLawGrrls:

Even if an entity becomes a “state,” should there be jurisdiction that it can invoke back to a time when (a) there were no clear “nationals” of that state, and (b) there was no clear “territory” of that state, and in fact, even according to the General Assembly there was only an “observer” and not a “state”? (The ICC Office of the Prosecutor has already declined to exercise jurisdiction over this time-period once before.)

Let’s not get carried away here.

I realize that I should have been more precise in my previous post. I was trying to make a more modest point: namely, that the Rome Statute does, in fact, permit retroactive acceptance of the Court’s jurisdiction. I did not mean to imply that Palestine itself could necessarily accept jurisdiction over acts committed on its territory before it became a state. Mea culpa.

That said, I think Jennifer makes an equally problematic assumption: that Palestine only became a state on Thursday, as a result of the UNGA vote. As Bill Schabas reminds us, membership in the UN may be relevant to whether an entity qualifies as a state, but it is not dispositive…

US and Mexico Pact on Colorado River Water

by Kenneth Anderson

Happy Thanksgiving, the best of the American holidays … I’m taking a quick break from cooking to note this Washington Post story on water rights.  Water rights are a fairly obscure topic to most lawyers, unless one is in a place like the southwestern United States or northwestern Mexico, in which case water rights are a kind of underlying regulatory structure of many other things, such as patterns of agriculture, urban and suburban development, etc.

I sometimes forget how important these issues become when rivers cross national borders, and where actions, such as dams or other diversions, by the upstream country can have enormous effects on the downstream country.  A senior Egyptian official once told me in passing (years ago) that if there were ever a Sudan that decided to divert significant parts of the Nile, Egypt would regard it as a casus belli if negotiations did not fix it – I asked on what legal theory, and he shrugged.  Water rights tend to structure things at the infrastructure and development level – oftentimes large numbers of people’s expectations for the long term are set around long run expectations about water supply, so that disruptions across borders might not occasion merely a marginal change of degree in behavior, but trigger institutional crises.  People’s livelihood are often at stake, but sometimes, not just livelihoods but a way of life for a region.

So I was interested to see that the United States and Mexico, which unsurprisingly have had serious disagreements over water rights in the past, have signed a new five year pact of amendments to the 1940s era Colorado River pact.  The amendments essentially bring Mexico into an arrangement created by US states sharing Colorado River water, to address times of drought.  The essence of the pact, as with the inter-US-state agreement, is to allow a party to “bank” water during wetter periods in reservoirs upstream, and then draw on that water in times of drought.

Whether this will work as planned, or whether it will address the generally drier conditions of the region or greater total demands for water in the region, I don’t know.  I did a quick check of Mexican press online, and there seemed to be a cautious endorsement, but I’d be interested to know how those more familiar with Mexico’s internal policy think of it; I’m definitely no expert on water rights, let alone cross-border water rights between Mexico and the US.  But I thought it was an interesting instance of international agreements over water rights.  Here is how the WaPo (AP) story describes it:

The far-reaching agreement gives Mexico badly needed water storage capacity in Lake Mead, which stretches across Nevada and Arizona. Mexico will forfeit some of its share of the river during shortages, bringing itself in line with western U.S. states that already have agreed how much they will surrender when waters recede. Mexico also will capture some surpluses when waters rise. Also under the plan, water agencies in California, Arizona and Nevada will buy water from Mexico, which will use some of the money to upgrade its canals and other infrastructure.

The agreement, coming in the final days of the administration of Mexican President Felipe Calderon, is a major amendment to a 1944 treaty considered sacred by many south of the border. The treaty grants Mexico 1.5 million acre-feet of river water each year — enough to supply about 3 million homes — making it the lifeblood of Tijuana and other cities in northwest Mexico. The pact represents a major departure from years of hard feelings in Mexico about how the U.S. manages the 1,450-mile river, which runs from the Rocky Mountains to Mexico. In 2001, U.S. states established rules on how to divide surpluses but set aside nothing for Mexico. Several years later, the U.S. government lined a border canal in California with concrete to prevent water from seeping through the dirt into Mexican farms.

“We have chosen collaboration over conflict, we have chosen cooperation and consensus over discord,” said U.S. Interior Secretary Ken Salazar, who called the new pact the most important international accord on the Colorado River since the 1944 treaty. Mexico will begin to surrender some of its Colorado River allotment when Lake Mead drops to 1,075 feet above sea level and begin to reap surpluses when it rises to 1,145 feet. Mexico will be allowed to store up to 250,000 acre-feet of water in the reservoir and draw on nearly all of those reserves whenever needed. The agreement expires in five years and is being billed as a trial run, potentially making it more palatable in Mexico.

“Tell Me How This Ends” and the Jus ad Bellum

by Kevin Jon Heller

I have been having an interesting twitter exchange with Ben Wittes about an online “Choose Your Own Adventure” game created by the Truman National Security Project.  The game, which is entitled “Tell Me How This Ends,” asks you to decide how the President of the United States should respond to news that Iran has accumulated enough enriched uranium to build a nuclear weapon.  I described the game as “appalling” on twitter, pointing out that the game gives you only two choices: a unilateral attack on Iran’s nuclear facilities, or a multilateral attack on Iran’s nuclear facilities.  In other words, the game requires the use of military force; additional diplomacy, much less justified skepticism about Iran’s intentions, is not an option.

Ben rightly responded that the game is trying to make a progressive point: that the use of force against Iran is likely to have significant negative consequences. In that respect, the game deserves credit.  But I still have a problem with the fact that the game requires the player to launch an attack that blatantly violates the jus ad bellum.  Here is how the game frames the scenario (emphasis added):

“During the campaign, you promised to establish a red line: If Iran accumulated enough medium-enriched uranium—that’s 20% enrichment—for a single nuclear bomb, the United States would retaliate militarily.

Intelligence now indicates that your red line has been crossed.”

The word “retaliate” is misleading, for an obvious reason: Iran has not attacked the U.S. or anyone else in the scenario.  Indeed, Iran has not even threatened to attack the U.S. or anyone else in the scenario.  The President’s attack, therefore, is pre-emptive, not retaliatory.

That misdescription is bad enough.  Worse still, the game requires the player to launch a pre-emptive military attack against Iran even though the scenario openly acknowledges that Iran has not yet decided to build a nuclear weapon and would need at least three years to actually build one:

Given Iran’s current capabilities, reasonable estimates suggest that if Iran’s leaders decided to build a nuclear weapon, it would take them at least a year to build, and would take two more years to create a warhead that could deliver the nuclear weapon via a missile to foreign countries.

Well intentioned or not, then, the game validates a profoundly reactionary understanding of the right of self-defense under Article 51 of the UN Charter.  Attacking a state that has enriched uranium but has not decided to build a nuclear weapon and would need years to actually build one is not self-defense.  It is an act of aggression.

New Article on the Legality of Signature Strikes

by Kevin Jon Heller

The article, which is available in draft form on SSRN, is entitled “‘One Hell of a Killing Machine’: Signature Strikes and International Law.”  It is forthcoming in the Journal of International Criminal Justice as part of a mini-symposium on targeted killing edited by Cornell’s Jens Ohlin.  Here is the abstract:

The vast majority of drone attacks conducted by the U.S. have been signature strikes – those that target “groups of men who bear certain signatures, or defining characteristics associated with terrorist activity, but whose identities aren’t known.” In 2010, for example, Reuters reported that of the 500 “militants” killed by drones between 2008 and 2010, only 8% were the kind “top-tier militant targets” or “mid-to-high-level organizers” whose identities could have been known prior to being killed. Similarly, in 2011, a U.S. official revealed that the U.S. had killed “twice as many ‘wanted terrorists’ in signature strikes than in personality strikes.”

Despite the U.S.’s intense reliance on signature strikes, scholars have paid almost no attention to their legality under international law. This article attempts to fill that lacuna. Section I explains why a signature strike must be justified under either international humanitarian law (IHL) or international human rights law (IHRL) even if the strike was a legitimate act of self-defence under Article 51 of the UN Charter. Section II explores the legality of signature strikes under IHL. It concludes that although some signature strikes clearly comply with the principle of distinction, others either violate that principle as a matter of law or require evidence concerning the target that the U.S. is unlikely to have prior to the attack. Section III then provides a similar analysis for IHRL, concluding that most of the signature strikes permitted by IHL – though certainly not all – would violate IHRL’s insistence that individuals cannot be arbitrarily deprived of their right to life.

I thoroughly enjoyed writing the article, which allowed me to put into academic form a number of ideas I’ve blogged about over the years — the relationship between the jus ad bellum and IHL/IHRL; the definition of armed conflict; what it means to be a member of an organized armed group; the scope of direct participation in hostilities; whether targeting in non-international armed conflict is geographically limited; and the best understanding of imminence under IHRL.  My guess is that both progressives and conservatives will find much to dislike.  Progressive won’t like my conclusion that a number of signature strikes are legal under either IHL or IHLR.  And conservatives won’t like my conclusion that many signature strikes violate both IHL and IHRL, with strikes in the latter category possibly amounting to crimes against humanity.

The deadline to go to press is quite soon, so I’m not sure if I can incorporate reader comments.  But, as always, I would deeply appreciate them.

Texas v. the OSCE Election Observers: The Kerfuffle About Nothing

by Julian Ku

The agonizing close presidential race in the U.S. has made everyone on edge about election day problems at the polls.  This may explain why the State of Texas has decided to pick a fight with the election observers from the Organization for Security and Cooperation in Europe (OSCE), threatening to arrest election observers who interfere with the upcoming November 6 elections.

Texas authorities have threatened to arrest international election observers, prompting a furious response from the Organization for Security and Co-operation in Europe (OSCE).

“The threat of criminal sanctions against [international] observers is unacceptable,” Janez Lenarčič, the Director of the OSCE Office for Democratic Institutions and Human Rights (ODIHR), said in a statement. “The United States, like all countries in the OSCE, has an obligation to invite ODIHR observers to observe its elections.”

Lawmakers from the group of 56 European and Central Asian nations have been observing U.S. elections since 2002, without incident. Their presence has become a flashpoint this year, however, as Republicans accuse Democrats of voter fraud while Democrats counter that GOP-inspired voter ID laws aim to disenfranchise minority voters.

Texas Attorney General Greg Abbott further fueled the controversy on Tuesday when he sent a letter to the OSCE warning the organization that its representatives “are not authorized by Texas law to enter a polling place” and that it “may be a criminal offense for OSCE’s representatives to maintain a presence within 100 feet of a polling place’s entrance.”

As the blog post at the Hill goes on to note, this is a big kerfuffle about nothing. The OSCE observers do not have any special legal status and they have already agreed to follow Texas election law (or any other state’s election law). I should note that Texas is free to do whatever they want with the OSCE monitors, and there is no federal authority that can push them to do anything in particular about the OSCE.   I am not sure why Texas has gotten all hot and bothered by this.

To be sure, Texas authorities might be confused by reports like this one from ABC, which calls the OSCE a “UN affiliate” and links their mission to calls by the NAACP on the U.N. to block voter ID rules (uh, that’s totally wrong).  But while the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE/ODIHR) [gotta love that acronym] is here to “assess these elections for compliance with international obligations and standards for democratic elections…” This sounds ominous, until you realize that U.S. commitments to OSCE self-consciously political, and not legal.  That is part of the point of the OSCE. It is a political forum, not a formal legal one.

It is true that the OSCE (which includes very undemocratic states like Kazakstan as members) is hardly in a position to complain too aggressively about U.S. election standards. I suppose it could get ugly in a close election if the OSCE tries to influence the political fight over a recount.  But there are so many existing domestic laws that regulate elections in the U.S. (and forums for litigation) that I am doubtful that the OSCE could add much to what is already going to be a crazy election season here in the U.S.

Harold Koh: Twenty-First Century International Law Making

by Duncan Hollis

Earlier this week, Harold Koh gave a speech.  And it wasn’t about conflicts, drones, or cyberwar, topics that have dominated the attention of international lawyers in recent years.  Rather, Koh’s speech was a meditation on the processes of international law-making that confront the State Department on a daily basis.  It was, simply put, a survey of the current international legal landscape from the U.S. perspective.

Koh reviewed the formal U.S. treaty-making process, citing past victories like the New START Treaty and the Obama Administration’s continued push for Senate advice and consent to the 1982 UN Convention on the Law of the Sea and the more recent Disabilities Convention.  There was also a cogent defense of the use of congressional executive agreements, with reference to controversies over the Anti-Counterfeiting Trade Agreement (or ACTA), where frankly I find myself aligned with the federal government in not seeing what the fuss is all about (or, rather, if there’s a fuss, it’s one so fundamental as to put into doubt two centuries of Congressional pre-approval of U.S. treaty-making).

Beyond this survey of formal international lawmaking, Koh also emphasized compliance, including a nod to his prior scholarly work (and the C-175 process, on which I spent a good deal of my own time at the State Department):

In my academic work, I have described a pervasive phenomenon in international affairs that I call “transnational legal process:” that international law is primarily enforced not by coercion, but by a process of internalized compliance. Nations tend to obey international law, because their government bureaucracies adopt standard operating procedures and other internal mechanisms that foster default patterns of habitual compliance with international legal rules. When I became Legal Adviser, I found that this is even truer than I thought. For example, most people are unaware of the so-called “C-175” process, named after a 1955 State Department Circular setting out a standardized procedure for concluding international agreements. The few academics who have ever noticed that process often assume it is nothing more than a rubber stamp. But having now seen it from the inside, I can tell you that the process is exhaustive and designed to ensure that all proposed U.S. international agreements — even if concluded by a different agency — are subject to a rigorous legal and policy review by the State Department before an any agreement is negotiated and concluded. Through this process, the State Department plays the same kind of clearinghouse role with respect to international agreements that OMB plays with regard to federal regulations. The C-175 process ensures not only that we have the legal authority to conclude the agreement in question, but also that every agency’s lawyers fully understand the nature of the domestic and international legal obligations we will undertake, so that we can accurately evaluate whether the United States will be able to comply with its new international legal obligations.

 

On the subject of compliance, Koh highlighted that the Administration has not yet given up on complying with the ICJ’s Avena judgment. And in terms of customary international law (CIL), Koh reiterated the U.S. view that major parts of the Vienna Convention on the Law of Treaties and the 1982 U.N. Convention on the Law of the Sea now codify CIL.

But, Koh’s talk also went well beyond the “formal” sources of international law, exploring the range of alternatives to treaty-making.  He discussed U.S. political commitments, including cooperative arrangements with the Arab League, the Copenhagen Accords, and the recent Washington Communique on nuclear security.  Koh dubbed these instruments as “layered cooperation”:

In any given area of international cooperation, the choice between international agreements and non-legal alternatives is not binary. Instead, the legal and the non-legal understandings are layered, and operate on different levels. Take for example the Arctic Council, a group of eight Arctic States — Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden, and the United States — which has emerged as an impressive example of a non-legal mechanism to facilitate sustainable development and international cooperation in the Arctic. The cooperation that takes place within the Arctic Council — generally through non-binding means — is layered on top of a legal backdrop of the Law of the Sea Convention, and the customary international law it reflects, which answer important questions about sovereign rights and jurisdiction in the Arctic. Now notice that the Council is not a formal international organization; it was not set up by an international agreement, and the majority of its work is not legally binding. But this has not detracted from — and has probably even enhanced — its success in facilitating robust international cooperation among the Arctic States at all levels, ranging from foreign ministers to bench scientists.

Koh’s speech also emphasized the increasing important role assigned in international lawmaking to non-State actors.  He ended, moreover, on a high note:

Make no mistake: this is not your grandfather’s international law, a Westphalian top-down process of treatymaking where international legal rules are negotiated at formal treaty conferences, to be handed down for domestic implementation in a top-down way. Instead, it is a classic tale of what I have long called “transnational legal process,” the dynamic interaction of private and public actors in a variety of national and international fora to generate norms and construct national and global interests. The story is neither simple nor static. Twenty-first century international lawmaking has become a swirling interactive process whereby norms get “uploaded” from one country into the international system, and then “downloaded” elsewhere into another country’s laws or even a private actor’s internal rules.

Now I am sure that Hugo Grotius had it good in his time. But believe me: there has never been a more challenging and exciting time to be an international lawyer or an international lawmaker. I have been lucky to spend my whole career steeped in this heady environment as a lawyer, scholar, advocate and public official. To be sure, there will always be challenges. But still, I find no belief more contagious than the simple, idealistic conviction, shared by so many, that even in a new millennium, it is still possible to aspire to help build a vibrant world order based on law.

For those who want to see the whole speech — check it out here — it’s worth the read.

[UPDATE:  Marty Lederman writes in with a link to a video of the speech for those interested in watching it.]

New Article on Reid v. Covert, and My Question re Extraterritoriality and the Constitution

by Kenneth Anderson

Over at Lawfare, I’ve flagged a fine new article in the Military Law Review, “The Case of the Murdering Wives: Reid v. Covert and the Complicated Question of Civilians and Courts-Martial,” by Captain Brittany Warren (Vol. 212. 2012, p. 133; link goes to jagcnet.army.mil.) The article goes into fascinating detail about the actual facts and circumstances of Reid v. Covert, as well as a discussion of historical practices dating back to 17th century Britain and the application of the Articles of War to “camp followers.”  It then comes back to the present to discuss the circumstances of civilians in courts-martial in US law.

Let me add a comment that goes far afield of Captain Warren’s article, but one raised in my mind by the detailed discussion she offers of the “murdering wives case” in its own context and time.  (I don’t want to suggest that my discussion reflects her views in that article, so I’ve decided to make it a separate post here at OJ.)   Reid v. Covert is a case sometimes raised in a different context – one for which it is not really dead-on, however, though sometimes referenced in relation to it.  Reid is the question of the extraterritorial application of the US Constitution, and whether a civilian US citizen lawfully present on a US military base in time of peace, with a SOFA in operation (ie, 1950s Germany), is entitled to a regular US civilian trial with all Constitutional protections in a capital murder case rather than trial in military court under the UCMJ – answer, yes. But, if that’s Reid, what about a US citizen who has fled the US to places not controlled in law or fact by the US, and is engaged in violent operations against the US from abroad as part of a terrorist group – is that US citizen nonetheless entitled to trial in a regular civilian court, or at least some form of judicial due process, and at least an implication that this US citizen can’t be lethally targeted in the way that a non-citizen lawful target could be? (more…)

Kiobel Oral Argument: Why the ATS as We Know it is in Jeopardy

by Roger Alford

My initial impression of the Kiobel oral argument is that the Supreme Court is going to do its best to do an historical analysis of the ATS and use that history to find ways to limit its scope. It could do so by holding that the ATS does not apply extraterritorially, or that it does not apply unless there is some U.S. nexus, or that it does not apply to corporations, or that it does not apply without exhausting local remedies, or that it does not apply to certain types of conduct (such as aiding and abetting). But one way or the other, I predict that the ATS as it currently is applied by lower courts will be severely limited.

I say that by reading the tea leaves of the Justices’ votes that are up for grabs. Justice Kennedy asked, among other things, about whether there was a U.S. nexus in this case (page 4), about risks of reciprocal claims brought against U.S. corporations in foreign courts (page 5), about the risk of ATS litigation causing complications with foreign governments (page 10), and about the scope of the presumption against extraterritoriality (p. 37). Several Justices, including Chief Justice Roberts, asked about the possibility of vindicating one’s rights in another forum that has a closer connection to the events or the parties, including the defendant’s domiciliary forum (the United Kingdom or the Netherlands) or the place of injury (Nigeria). None of the swing Justices seemed interested in the concept of universal jurisdiction, except to preserve the Sosa paradigm that embraced piracy on the high seas as an actionable international law violation.

The good news for the plaintiffs is that Paul Hoffman did an exceptional job of trying to make the ATS sound unexceptional. One of his best arguments was that courts have all the tools they need to address the concerns about friction with foreign nations, including the political question doctrine, the act of state doctrine, international comity, forum non conveniens, and personal jurisdiction. In other words, these concerns about tensions with foreign nations are legitimate, but courts already have developed doctrines sensitive to those concerns. When pressed, he was even willing to make more concessions, such as the possible need to exhaust local remedies. The bad news is that the swing Justices did not appear to be buying the argument that the arrows currently in the quivers of the courts are enough to limit the reach of the ATS.

As for extraterritoriality, Hoffmann’s key argument was that the presumption against extraterritoriality is overcome where the purpose of the statute requires its extraterritorial application. The presumption, he argued, “would undermine the very purposes of the statute” which is “the best evidence that we have about what it meant in the era” (page 52). He cogently cited the Bradford opinion as an historical example of what the drafters were thinking in this regard.

To be sure, there is ample Supreme Court case law to support an argument that sometimes the purpose of a statute requires its extraterritorial application. See United States v. Bowman, Blackmer v. United States, United States v. Flores, Cook v. Tait, Browder v. United States. One way to articulate this is to say that the clear intent of Congress is expressed in drafting a statute that necessarily requires extraterritorial application. Whether or not the swing Justices will interpret the ATS in this fashion is anyone’s guess.

Kathleen Sullivan’s key argument was that the presumption against extraterritoriality required clear congressional intent, which she argued was lacking in this case. She then fumbled by trying to argue that the Court’s recognition of piracy in Sosa did not undercut this argument. She should have stuck with her argument about the purpose of the presumption against extraterritoriality—to avoid encroachment on the sovereign prerogatives of other nations to regulate conduct in their territory—and conceded the point about piracy on the high seas as falling within the scope of the ATS. Instead, she argued that pirate ships are mini-foreign countries and tried to argue that that the presumption applied even to pirate ships. It was not a fatal mistake, but it was painful to read.

Sullivan also struggled with Justice Kagan’s creative reverse Marbois question, (page 30-32) which aptly addresses the possibility that foreign tensions can arise from an American’s misconduct against a foreign national on foreign soil, just as much as an American’s misconduct on domestic soil. Sullivan argued that other remedies were available, such as extradition or state law torts for assault. That may be true, but that is also true for an American’s misconduct on domestic soil. Her argument didn’t address the critical question of why Congress believed the ATS was necessary in the first place, and why it should only apply to domestic misconduct by Americans. If concern about foreign friction is what is driving the ATS, she should have taken a page from Hoffman and conceded points that were not essential to her case, such as the possibility that the ATS applied to foreign conduct by an American non-corporate defendant. (That seemed to be Solicitor General Verrilli’s position: that the ATS should only apply where there is a clear U.S. nexus, such as misconduct by an American national on foreign soil or misconduct by a foreign national on U.S. soil.)

So I predict that the ATS as we know it will be curtailed. I don’t know exactly how it will be curtailed, but based on the oral argument today I predict that the future of foreign plaintiffs using the ATS to sue foreign corporations for conduct on foreign soil is in serious jeopardy.

ATS Kiobel Post-Argument Discussion

by Kenneth Anderson

I realize this should have gone to our announcements section, but it seems well worth flagging.  As OJ readers are probably aware, the Kiobel case is being re-argued today in the Supreme Court.  Tomorrow my law school, Washington College of Law, American University, in DC, is holding a post-argument discussion with some stellar folks – Paul Hoffman (lead counsel for plaintiffs), Katie Redford (Earthrights International), John Bellinger (former DOS Legal Adviser and Arnold & Porter partner), and Andrew Grossman (Heritage Foundation).  WCL’s own Steve Vladeck will moderate.  The event will also be live-streamed.

Tuesday, October 2, 12-1:20, lunch included, and CLE credit available.  Registration required.  The flyer with online registration information is below the fold. (more…)

Gary Bass Reviews John Witt’s ‘Lincoln’s Code’ in the NYT Sunday Book Review

by Kenneth Anderson

John Witt’s magisterial new book, Lincoln’s Code: The Laws of War in American History, appeared a few weeks ago, and Gary Bass has an enthusiastic review of it in yesterday’s New York Times Sunday Book Review.  I am only about half-way through it, but Bass’ enthusiasm is entirely justified – it is a fabulous book and one that I think merits attention world-wide.  Bass’ review-essay is also well worth the read:

Abraham Lincoln’s administration published a new fighting code for Union soldiers in 1863, which diffused far beyond American shores: to the Prussian Army in 1870, into the landmark Hague Convention in 1899, and even into the Geneva Conventions and the Nuremberg trials after World War II. Witt, a professor at Yale Law School, writes that it was Francis ­Lieber, the Lincoln team’s foremost wartime legal authority, who — trying to figure out how Union troops should treat Southern irregulars — came up with some of the defining features of soldiers that guided the Third Geneva Convention in 1949: wearing distinctive insignia identifying them as combatants; operating under a command structure; and following the laws of war.

“Lincoln’s Code” is both a celebratory chronicle of American lawmaking and a gruesome record of American wartime cruelty, from William Tecumseh Sherman’s rampage through Georgia and South Carolina to the Indian wars. In an effort to make sense of what animates the “world’s only military superpower” today, Witt looks backward: “From the Revolution forward, the United States’ long history of leadership in creating the laws of war stands cheek by jowl with a destructive style of warfare.”

Witt argues that Americans have been torn between “two powerful but competing ideals”: humanitarianism, which seeks to make war less awful through gentler rules; and justice, which demands victory in a righteous cause. Americans, he writes, have seen military law not just as an obstacle to effective fighting, but also “a tool for vindicating the destiny of the nation.”

Witt himself is a pragmatic type. While he admires much about the laws of armed conflict, he does so largely on the modest grounds that they can serve “as tools of practical moral judgment in moments of extreme pressure.” He is impatient both with skeptics who dismiss international law as rank hypocrisy, and with more aspirational legalists whose ideals are “so remote” from actual war-fighting that they make it “less likely . . . the laws of war will find traction in times of crisis.” He paraphrases Oliver Wendell Holmes Jr.: “The life of the laws of war has not been logic. It has been experience.”