Archive of posts for category
North America

The Lord Works in Mysterious Ways – KJH and OLC Edition?

by Kenneth Anderson

Was our very own Kevin Jon Heller, and one of his OJ posts, responsible for causing David Barron and Marty Lederman (widely taken as authors of the Justice Department’s OLC opinion on the lawfulness of targeting Anwar Al-Awlaki with lethal force) to rewrite their memorandum?  Wells Bennett at Lawfare points to an extraordinary passage appearing in a lengthy story in today’s New York Times on targeting Awlaki, by Scott Shane, Mark Mazzetti, and Charlie Savage.  Notes Wells:

[T]he article says that OLC’s legal workup was influenced by “a legal blog that focused on a statute that bars Americans from killing other Americans overseas.”   It is unclear to what legal blog the authors refer (and hard to know for sure what affected OLC’s thinking)—but the timing and content suggest this Opinio Juris post by Kevin Jon Heller.

Congratulations to Kevin for having re-shaped the contours of US government thinking, if that’s true.  I’m not sure whether Kevin would regard this as the Lord Works In Mysterious Ways, or instead the Devil Quoting Scripture for His Own Purposes, but in any case, congratulations. (And thanks to Peter Margulies for telling me about this; I haven’t been on blogs all day, because the day in DC has been beautiful, and I Have A Life, not to mention a chapter owed to Ben Wittes.)

Ancillary Discovery in Aid of Foreign or International Proceedings

by Roger Alford

I have posted on SSRN my latest article, “Ancillary Discovery to Prove Denial of Justice” just published in the Virginia Journal of International Law. It analyzes Section 1782 discovery proceedings in the context of BIT arbitration and argues that there is now uniform agreement among federal courts that investment arbitration panels are “international tribunals” within the meaning of Section 1782.

But the article has salience outside that context, and could be applied to many foreign or international proceedings. One plaintiff involved in a French proceeding, for example, served a discovery subpoena on a French party while he was visiting a museum on vacation in the United States, thereby incorporating American discovery into the French proceeding. A German defendant in a German proceeding issued a Section 1782 discovery subpoena on the American plaintiff, and thereby incorporated non-reciprocal American-style discovery into the German proceeding.

The article presents several conclusions regarding the growing use of ancillary discovery in international adjudication, particularly in the context of investment arbitration claims against respondent states.

First, ancillary discovery under Section 1782 reflects a congressional intent to allow interested parties to avail themselves of liberal discovery under the Federal Rules of Civil Procedure, resulting in the indirect incorporation of American-style discovery into foreign or international proceedings. If this trend continues, American discovery will become an important ancillary mechanism to gather evidence, in addition to and perhaps in lieu of the traditional evidence gathering procedures utilized by foreign or international tribunals. For example, I outline in the article how all the important fraud information Chevron received against Ecuador came from Section 1782 proceedings, not evidence gathering pursuant to foreign or international proceedings.

Second, liberal discovery pursuant to Section 1782 promotes evidentiary forum shopping, encouraging parties to pursue ancillary discovery in the United States rather than rely on the discovery procedures available in foreign or international proceedings. If parties can rely on the liberal discovery standard of FRCP Rule 26, requiring only that the requested information is “reasonably calculated to lead to the discovery of admissible evidence,” then why opt for narrow discovery approaches of foreign or international tribunals?

Third, the use of Section 1782 in aid of international tribunals reflects sensitivity to the comity of courts, not the comity of nations, such that federal courts determining whether to order ancillary discovery should consider the international tribunal’s receptivity to such assistance, but not the attitude of the foreign sovereign responding to allegations of international law violations. International tribunals thus far have been extremely passive in their role in this regard, whereas respondent state’s have protested vigorously, but to no avail.

Fourth, in the specific context of investment arbitration, providing foreign investors with a remedy for denial of justice, together with a robust means to prove such a violation, alters the host State’s incentives and requires it to play a two-level game that reconciles international obligations with domestic political preferences. Robust evidence gathering at the international level increases the likelihood that respondent states will be liable for international law violations.

Finally, the article outlines the possible abuse of ancillary discovery under Section 1782. Chevron’s recent subpoena of Kevin Jon Heller’s email logs is an example. Email providers such as Google, Yahoo, and Microsoft are becoming obvious targets for discovery by parties seeking access to email account information of individuals involved in domestic, foreign, or international proceedings. Section 1782 is particularly vulnerable to abuse where one party is situated (or transiently found) in the United States, while all the relevant information of the other party is located abroad.

A Native American Mutual Defense Treaty Against Tar Sands Projects

by Duncan Hollis

Last week, a Ceremonial Grand Council was held on Ihanktonwan homelands (located within the boundaries of the U.S. State of South Dakota) which concluded and negotiated the “International Treaty to Protect the Sacred from Tar Sands Projects”.  I can’t find a specific list of participants, but news reports suggest signatories included representatives from an array of U.S native American Tribes and Canadian First Nations.  The treaty (see here for the text) is seven articles long, most of which involve establishing the authority of indigenous peoples’ over their remaining land, including the authority to oppose tar sands oil projects (tar sands are unconventional oil deposits in sand and sandstone that are saturated with a particular form of petroleum; oil is produced from these deposits either by strip mining or using wells that inject steam, solvents and/or hot air into the sand).  The treaty signatories oppose oil work on tar sands for manifold reasons, including their degradation of the “the soil, the waters, the air, sacred sites, and our ways of life”.  In Article VI, the signatories

[A]gree to mutually and collectively, as sovereign nations, call upon the Canadian and United States governments to respect our decision to reject tar sands projects that impact our sacred sites and homelands; to call upon the Canadian and United States governments to immediately halt and deny approval for pending tar sands projects because they threaten the soil, water, air, sacred sites, and our ways of life; and, confirm that any such approval would violate our ancestral laws, rights and responsibilities.

Article VII then goes on to establish a mutual defense commitment of sorts, wherein the signatories

[A]gree to the mutual, collective, and lawful enforcement of our responsibilities to protect our lands, waters, and air by all means necessary, and if called on to do so, we will exercise our peace and friendship by lawfully defending one another’s lands, waters, air, and sacred sites from the threat of tar sands projects, provided that each signatory Indigenous Nation reserves and does not cede their rights to act independently as the tribal governments see fit to protect their respective tribal interests, further provided that each signatory Indigenous Nation reserves its inherent sovereign right to take whatever governmental action and strategy that its governing body sees fit to best protect and advance tribal interests affected by the pipeline project consistent with the agreements made herein and subject to the laws and available resources of each respective nation.

I find this treaty enormously interesting from a constitutional and international law perspective.  Of course, the treaty implicates other issues as well — environmental degradation, indigenous peoples’ rights, Canadian law, etc., but I’m not enough of an expert to opine on such questions.  Whatever its merits, though, I wonder what legal authority U.S. Native American tribes had to consent to conclude this treaty, let alone consent to be bound by it in the future (which the treaty says will occur via ratification by the “governing bodies of the signatory nations”).

[Update: Stephanie Farrior writes in with an important clarification.  Although the United States, Canada, New Zealand and Australia all initially opposed the the UN Declaration on the Rights of Indigenous Peoples, all four states have since formally expressed their support for the Declaration: Australia in 2009, and Canada, New Zealand and the United States in 2010]

[And Begins Again]

by Kevin Jon Heller

The indefatigable Glenn Greenwald has unearthed an even more appalling appropriation of Dr. King by the military — a Department of Defense news article entitled “King Might Understand Today’s Wars, Pentagon Lawyer Says.”  The lawyer in question is none other than Jeh Johnson, former DoD General Counsel.  Here is what he says:

In the final year of his life, King became an outspoken opponent of the Vietnam War, Johnson told a packed auditorium. However, he added, today’s wars are not out of line with the iconic Nobel Peace Prize winner’s teachings.

“I believe that if Dr. King were alive today, he would recognize that we live in a complicated world, and that our nation’s military should not and cannot lay down its arms and leave the American people vulnerable to terrorist attack,” he said.

This is a stunning example of the myth I mentioned in my previous post — that US violence is always used for noble purposes and always promotes peace.  Nearly everything that Dr. King said about Vietnam applies with equal force to the war on terrorism; now as then, instead of trying to understand the complicated relationship between the US and its supposed enemies, the US simply assumes it can kill its way to peace and security.  Not to put too fine a point on it, but the idea that Dr. King would support the US drone program and the war in Afghanistan (to say nothing of the war in Iraq) is both completely absurd and an insult to his memory.

[Kevin Bangs Head on Table Repeatedly]

by Kevin Jon Heller

I am very rarely rendered speechless, but this appropriation of Martin Luther King by the Air Force Global Strike Command Programming Division (nearly) did the trick:

The Department of Defense is a leader in equal opportunity for all patriots seeking to serve this great nation. . . The vigilant warriors in AFGSC understand they are all equal and unified in purpose to provide a safe, secure and effective deterrent force for the United States. . .

Dr. King would be proud to see our Global Strike team – comprised of Airmen, civilians and contractors from every race, creed, background and religion – standing side-by-side ensuring the most powerful weapons in the U.S. arsenal remain the credible bedrock of our national defense. . . Our team must overlook our differences to ensure perfection as we maintain and operate our weapon systems. . . Maintaining our commitment to our Global Strike team, our families and our nation is a fitting tribute to Dr. King as we celebrate his legacy.

It is a wonderful thing that the US military is desegregated.  And the military deserves credit for so rapidly adjusting to the end of “Don’t Ask, Don’t Tell.”  But to say that maintaining the strength of the US military is a “fitting tribute” to Dr. King is simply perverse. I can’t do better than Glenn Greenwald, who wrote a great post yesterday about the phenomenal speech Dr. King gave at Riverside Church in NYC on 4 April 1967 condemning US militarism and advocating refusal to serve in the military.  I’ll simply offer a few paragraphs from the speech about the US’s “liberation” of Vietnam…

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.