General

OLC Memo – The Due Process Piece

Much to say on the redacted version of the U.S. Justice Department Office of Legal Counsel memorandum on targeted killing, released by a U.S. court yesterday. For now, let me start with U.S. constitutional law – namely, what does the Fifth Amendment require by way of procedural protection before a U.S. citizen like Awlaki may be lethally targeted? Recall the earlier released DOJ White Paper on the topic had been clear its analysis was limited to the particular circumstances the intelligence community represented Awlaki presented: the use of “lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force if al-Qa’ida – that is, an al-Qa’ida leader actively engaged in planning operations to kill Americans.” The memo’s effort to assess the due process requirements in this circumstance runs from page 38 to page 41. It begins by appropriately acknowledging that, because of Awlaki’s citizenship, the Fifth Amendment “likely” protects him even while he is abroad in such circumstances. The memo also correctly identifies Mathews v. Eldridge (a 1976 Supreme Court case assessing what process was due before the government could deprive an individual of property) as setting the test for assessing how much process is required in the targeting case as well; Mathews is the test the Hamdi Court applied in 2004 in determining that U.S. citizen Yaser Hamdi, picked up on the Afghan battlefield, was entitled to notice of the reason for his detention and an opportunity to be heard by a neutral arbiter, once the exigency surrounding his battlefield seizure had past. Here, the memo’s analysis becomes more problematic.

Bombing Iraq Doesn’t Just Pose Serious Questions of Domestic Law, International Law May Be a Problem, Too

My blogospheric colleagues have begun debating whether the Administration has sufficient domestic legal authority to proceed with what the Times has called a “targeted, highly selective campaign of airstrikes against Sunni militants in Iraq” – reportedly now under contemplation. Jack Goldsmith, for example, thinks it might, under the 2002 statute authorizing the President to use military force against the government of Iraq for the purpose of ridding it of its “weapons of mass destruction.” My friends at Just Security and elsewhere have usefully debunked this notion, and related others (like the idea I’ve argued against here, that ISIS can be considered any kind of “associate” of Al Qaeda). But while I’d contest the idea that the discussion so far is “premature” – it is no doubt precisely a topic with which Administration lawyers are currently struggling – the doubtful legality of such a set of strikes under domestic law is made even worse by the likely illegality of such strikes under international law. That is, even if the United States could come up with a domestic statutory basis for some military action in Iraq – extant Title 50 covert action authorities are quite broad, for example – it would still struggle for the approval of our allies on international legal grounds. Here’s my thinking.

Weekly News Wrap: Monday, June 16, 2014

Your weekly selection of international law and international relations headlines from around the world: Africa Three armed groups from northern Mali have agreed to begin peace talks with the government aimed at resolving long-standing disputes in the country.  More than 50,000 children in South Sudan face death from disease and hunger, the United Nations has warned while seeking over $1bn to support those...

Lethal Drone Strikes — Not Just for American Citizens Any More!

Not surprisingly, drone strikes that kill American citizens have received the most attention in the press. So it's important to emphasize that the US kills citizens of its allies, as well, such as the two Australians recently vaporized in Yemen: TWO Australian citizens have been killed in a US airstrike in Yemen in what is the first known example of Australian...

Weekend Roundup: June 7 – 13, 2014

This week on Opinio Juris, Kevin had a chuckle at Libya's newest excuse why it missed the deadline for filing submissions to the ICC. He also called your attention to the work of Breaking the Silence, an Israeli NGO collecting testimonials from IDF on the treatment of Palestinians in the Occupied Territories. Deborah discussed ongoing confusion between al Qaeda and ISIS, and the...

An End-of-War Policy Diversion

Since I’ve given the New York Times grief in the past about using the name “Al Qaeda” to refer to non-Al Qaeda radical Islamist groups, I wanted to give them due credit for yesterday’s piece describing the takeover of Mosul by the Islamic State of Iraq and Syria (ISIS) as having been accomplished by Sunni militants. The Times piece...

Weekly News Wrap: Monday, June 9, 2014

Your weekly selection of international law and international relations headlines from around the world: Africa A Liberia-flagged oil tanker has gone missing off the coast of Ghana and a senior port official told Reuters on Saturday the captain sent a distress call to say the vessel was attacked by pirates.  Up to 37 people including women and children were killed in Democratic Republic...

Weekend Roundup: May 24 – June 6, 2014

This fortnight on Opinio Juris, we discussed the US Supreme Court's decision in Bond v United States. Peter argued how the Court ducked the question about the federal treaty power and provided a Bond cheat sheet. A guest post by Jean Galbraith focused on the notable silences in the Bond opinions, and David Golove and Marty Lederman described the outcome as stepping back...

Executive Director Search at the American Society of International Law

As many readers of this blog know, Elizabeth Andersen, the  Executive Director of the American Society of International Law, has been named the new director of the American Bar Association's Rule of Law Initiative. Consequently, the ASIL has a search underway for a new Executive Director. The search announcement states, in part: The American Society of International Law (“ASIL” or “the...

High Level Sanctions Review Launched at the UN

A new High Level sanctions review has been initiated at the UN, sponsored by the UN Missions of Australia, Finland, Greece and Sweden, in combination with Brown University and the sanctions consulting firm CCI. The purpose of the review is to assess existing sanctions and develop forward looking recommendations to enhance effectiveness. A similar process took place in 2006, known...