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Important New Terrorist Financing Resolution Passed by Security Council

by Kristen Boon

On February 12, the UN Security Council unanimously passed an important new Chapter VII resolution – Resolution 2199 – to respond to terrorist groups in Iraq and Syria.

This resolution is significant for four reasons.   First, the resolution specifically targets the supply of oil. In other words, it attempts to degrade the supply chain and the support networks.  The preamble refers to oilfields and their related infrastructure, as well as other infrastructure such as dams and power plants.  The operative paragraph states the Council:

“Condemns any engagement in direct or indirect trade, in particular of oil and oil products, and modular refineries and related material, with ISIL, ANF and any other individuals, groups, undertakings and entities designated as associated with Al-Qaida by the Committee pursuant to resolutions 1267 (1999) and 1989 (2011), and reiterates that such engagement would constitute support for such individuals, groups, undertakings and entities and may lead to further listings by the Committee;and attempts to target companies and activities that contribute to terrorist activities.”

This effort by the Council condemns direct and indirect trade in oil and oil products, and emphasizes that all states must freeze assets of the targeted groups, as well as their agents, intermediaries and middlemen, including oil producers.  In another paragraph, the Council also expresses concern that vehicles coming from certain areas could be carrying oil, minerals, livestock and other materials to barter.

Second, the resolution prohibits trade in cultural artifacts. Terrorist groups in these countries are known to be profiting from the looting of antiquities, and this resolution seeks to prevent the trade in items of cultural, scientific and religious importance.   It notes that terrorist groups are generating income from illegally removing artifacts from both countries during periods of conflict.  The resolution reaffirms an existing ban on antiquities from Iraq, and imposes a new ban on antiquities from Syria.  It also sets the basis for cooperation with INTERPOL and UNESCO.

Third, the resolution bans the payment of ransom, regardless of how or by whom the ransom is paid. It further “Reiterates its call upon all Member States to prevent terrorists from benefiting directly or indirectly from ransom payments or from political concessions and to secure the safe release of hostages, and reaffirms the need for all Member States to cooperate closely during incidents of kidnapping and hostage-taking committed by terrorist groups.”  In so doing, it attempts to cut off funds derived from ransom, and reaffirms that UN sanctions prohibit ransom payments to UN listed groups.

Fourth, the resolution was drafted by Russia.  While Russia’s opposition to intervention in Syria and  is well known, this is an example of positive engagement with the situation in Syria.  Although the resolution does not authorize intervention, it makes creative use of the Security Council’s sanctions power and is indicative of creative new approaches to targeting.

The Council’s efforts to prevent direct and indirect trade in oil products are illustrative of the Council’s regulatory activities in the economic sphere. An article I published in the Vanderbilt Journal of Transnational Law in 2008 provides some background on the topic of the Security Council as norm setter in the international economic sphere.

How to Authorize War

by Jens David Ohlin

The White House has proposed a draft resolution authorizing the President to use military force against ISIL (also know as “ISIS” or simply the “Islamic State”). While it is laudable that the president is asking for specific congressional authorization for military strikes against ISIL, I remain troubled by several aspects of the proposal.

First, the passage of the proposed resolution would replace the existing patchwork of justifications for the current military operations, including the Constitution’s Article II commander-in-chief power, the 2001 AUMF (the so-called “9/11 AUMF”), and the 2002 Iraq AUMF. Regardless of the current administration’s position regarding the lawfulness of military force in Iraq and Syria in the absence of a new AUMF, all three of the prior foundations remain available–at least in theory–as justifications for military action against ISIL. The only way around this is to repeal the 2001 and 2002 AUMFs or to explicitly state in the new AUMF that it, in some way, supersedes them. This is crucially important.

If the prior AUMFs remain on the books and the administration continues to maintain that they are sufficient to justify the current level of military force against ISIL, then it is not clear what the new AUMF is actually accomplished. In particular, as many others have noted, the constraints and limitations in the new AUMF become effectively meaningless because the administration could always rely on the unrestricted and unconstrained authorizations already on the book and still valid. This problem is created by the absurdity of having overlapping statutory authorizations for a military campaign, creating a pick-and-choose menu for this (or future) administration to use when justifying its military deployments. This isn’t a restaurant; this is war. There are too many menu options.

I wonder if there is a middle ground to solve this problem without explicitly repealing prior AUMFs. For example, could the new AUMF simply be amended to state that the president cannot rely on prior AUMFs as authorizations against ISIL? This would allow the prior AUMFs to stay on the books (which plenty of congressional leaders will be unwilling to repeal anyway) while still limiting their applicability with regard to ISIL. It would make the new AUMF the one and only AUMF applicable to ISIL targets. One could describe this as a “partial repeal” or “partial de facto repeal” of the prior AUMF, or you could describe it simply as making the new AUMF a superseding AUMF with regard to ISIL. This would clarify that the constraints in the new AUMF are meant to apply and that the older unconstrained AUMFs cannot be used as an authorization against ISIL.

The next issue is the use of the phrase “associated forces” in the draft AUMF. The phrase “associated forces” has been used before, most notably in the Detainee Treatment Acts as well as in the federal government’s briefs in Guantanamo Bay habeas litigation before the D.C. Circuit. That being said, the phrase never appeared in the 2001 AUMF and Congress never before authorized the use of force against associated forces of al-Qaeda. What’s different now is that the proposed new AUMF includes a very broad definition of associated forces that is arguably much wider than the concept of co-belligerency from which the term “associated forces” gains whatever legitimacy and reflective glory it has. The new definition of associated forces also includes successor entities that are sufficiently related to the original group. Here is the language:

SEC. 5. ASSOCIATED PERSONS OR FORCES DEFINED.
In this joint resolution, the term ‘‘associated persons or forces’’ means individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners.

Apparently the Administration is concerned that ISIL will collapse and might be replaced by an equally dangerous jihadist entity, with new leadership, but exhibiting the same level of dangerous. The administration wants the AUMF to apply to those groups as well, even if they are not, properly speaking, a part of ISIL. (Incidentally, the notion of “closely related successor entity” reminds one of Robert Nozick’s closest continuer theory of personal identity.)

But there are deeper problems to the use of “associated forces” concept beyond the broad definition offered in the draft AUMF. The whole idea of using “associated forces” in an AUMF is problematic. In order to understand why, it is important to remember the role that military authorizations play within our modern constitutional order. Congress no longer declares war, although it retains the constitutional authority to do so. Pursuant to its constitutionally mandated role in war making (and as articulated in the War Powers Resolution), Congress has the power to authorize the president to deploy military force—a necessary step whenever the President’s Article II authority runs out. There are many disputes about the nature and scope of the Article II power, but unless you believe in an unlimited Article II power, you must recognize that Article II has an outer limit, at which point Congressional authorization is required. That process is essential for multiple reasons.

First, the involvement of Congress provides for an open, transparent, and deliberative assessment of the wisdom of deploying force. “Wisdom” here includes questions of law, morality, and the burden that will be placed on the nation’s shoulders to execute the action. Although the executive branch engages in deliberation, it is neither open nor transparent; it is secretive and insular. Only in the legislative branch do these issues get aired with the appropriate amount of light. At the end of the conclusion of this process, the public knows who we are fighting, and why.

Second, the AUMF announces to the world community the nature of our armed conflict. It sends a signal to the world community regarding the nature of the conflict and the underlying legal and moral rationale for its commencement. All of this is essential for the world community’s assessment of jus ad bellum and its proportionality constraints. Only if they know who and why we are fighting will they be able to decide whether our actions comply with basic principles of international law. The use of the “associated forces” concept in the new AUMF frustrates both of these goals. In order to fulfill its communicative obligation, both to the American people and to the world community, Congress needs to identify—by name—the organizations that we are fighting. Is it too much to ask that we identify, with specificity, the other party to our armed conflict? This is war; the identity of the belligerents isn’t peripheral to the event, its absolutely central and arguably a sine qua non. No belligerents, no armed conflict.

Why would I suggest that Congress owes a communicative obligation to the world community? Usually we don’t talk of Congress owing supra-national obligations to foreign people. But this note of skepticism misconstrues the nature of the communicative obligation. Congress owes the American people an obligation that it communicate to the world community the nature of our armed conflict. Why? Because the military force is being deployed on behalf of the American people, and its lethality, justified or not, will ultimately be attributed to the American nation. In that context, the announcement of military force, in a public and open fashion to the world community, is essential so that the world community knows why the “American people” is engaged in lethal force.

The default presumption in international law is that lethal force is unlawful unless justified by self-defense or Security Council authorization. While in this case I believe that force against ISIL is justified under international law, this is only the first step. The second step is that this justification must be communicated to the world, and Congress owes it to the American people that this communication be clear and successful. Failure to identify the enemy belligerent by name frustrates this communicative obligation.

The Administration might argue that ISIL could collapse in the future and be replaced by a successor organization with a different identity, new leadership, and a different name. What then? The answer is simple: pass a new AUMF.

U.S. Federal Aviation Agency Issues Letter Authorizing(?) Creation of Private Moon Base

by Julian Ku

Glenn Reynolds of Instapundit (and of the University of Tennessee Law School) has a short op-ed in USA Today celebrating the first official US government statement of support for the private exploitation of resources on the moon.  As Reynolds describes it:

Bigelow [a private US company] has decided that it wants to go to the moon, and — here’s the real news — has gotten the Federal Aviation Administration’s space office (Office of the Associate Administrator for Commercial Space Transportation) to give it the go-ahead, and to state that the U.S. government will recognize and protect Bigelow’s right to create a base and to operate exclusively in that base’s vicinity.

The linked report from Reuters elaborates that the FAA is simply using its existing authority to regulate payloads on space launches to authorize activities private companies might use those payloads for on the moon.  In this case, Bigelow is preparing to build an inflatable space habitat, a “moon base”, and would like some statement of US government backing for its project.

According to Reynolds (and many space lawyers), the Outer Space Treaty does not in fact prohibit private exploitation of natural resources on the moon. I am a bit surprised because Article II of that treaty states that:

Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

But while national appropriation is prohibited, it appears to Reynolds and others that private appropriation is not prohibited.  This argument takes some interpretive legwork, but it certainly has some historical pedigree, dating back to at least this 1969 essay.

This aggressive reading of Article II is enough to encourage other private space development companies to plan their business models on extracting and then bringing back minerals from the moon. As Moon Express, another company stated:

“The company does not see anything, including the Outer Space Treaty, as being a barrier to our initial operations on the moon,” said Moon Express co-founder and president Bob Richards. That includes “the right to bring stuff off the moon and call it ours.”

I am still not sure about their reading of the treaty’s language.  Did the drafters of the Outer Space Treaty really want to prohibit states from exploiting celestial bodies, but allow any non-state to do so (and without any obvious set of rules to govern those non-states)?  I definitely need to study this question more, but it certainly seems like there will be a dispute on this question someday soon. Any experts out there who wish to comment, please share!

New ILA Study Group on Sanctions

by Kristen Boon

I am pleased to announce that a new ILA Study Group on sanctions has been formed.  Larissa van den Herik and I will be working together, with the support of a group of sanctions scholars and practitioners, to address questions of individualization, formalization and interplay in multilateral sanctions.  Here are the three aims of the group:

  • To evaluate the individualization and formalization of UN sanctions.

What are the pros, cons and interconnections of developments towards individualized and rules-based conceptions of UN sanctions? How targeted must targeting be and what are the risks of over-targeting and over-compliance?

  • To examine how and in which circumstances UN sanctions regimes can be further (or less) individualized and formalized both in terms of their function as well as regarding procedural aspects.

In which areas of international law can UN sanctions play a role? Do different types of UN sanctions regimes correspond to different protected values and pursued interests? How are procedures and accountability models best organized?

  • To reflect on coordination with other institutions.

What are the best forms of interplay and interaction with other institutions such as the International Criminal Court, ICTY, ICTR and national courts pursuing criminal accountability, and with other regional or sub-regional organizations that apply sanctions, such as the EU and AU?

 

The group aims to present its first report at the ILA meeting in Durban, 2016.

For those who follow sanctions, some other interesting events are coming up including a conference in London, details here.

ICTY upholds Genocide Convictions in Srebrenica Case

by Jens David Ohlin

Today, the ICTY Appeals Chamber affirmed genocide convictions in the Srebrenica case, Prosecutor v. Popović et al. The full Appeals Chamber judgment is here.  The PDF document is 792 pages (including a few short dissents), which is long-ish but certainly not extraordinary by ICTY judgment standards.

In my opinion, the most critical part of the judgment relates to the connection between the defendants, their Joint Criminal Enterprise (JCE), and the perpetrators who actually performed the killings. As you will recall, back in the old days when the JCE doctrine was first brought to fruition in the Tadic case, the assumption was that the court would convict defendants who were part of the same JCE as the perpetrators who performed the actual killings. Later ICTY judgments “de-linked” leadership-level defendants from the relevant physical perpetrators and held that a conviction for JCE did not require that the defendants and the perpetrators were part of the same JCE. This opened up a big question: what link between the defendants and the perpetrators was required in order to convict under the JCE doctrine? Furthermore, what doctrine would justify imposing liability on the defendants when the JCE doctrine was insufficient by itself to establish the link between the defendants and the physical perpetrators. What standard would be used to evaluate the required link?  I was hoping that the Popović judgment would resolve these questions definitively, but it does not appear to have done so.

Here is the relevant paragraphs in the judgment regarding one set of killings:

1065. The Appeals Chamber observes that the Trial Chamber considered that the fact that killings occurred in July 1995, after the fall of Srebrenica, and that the victims were Bosnian Muslim men from Srebrenica, were sufficient to link the Trnovo killings to the common purpose of the JCE to Murder. The Prosecution correctly points out that the principal perpetrator of a given crime need not be a member of the JCE and that it must be determined whether the crime in question forms part of the common purpose. The Appeals Chamber reiterates that: to hold a member of a JCE responsible for crimes committed by non-members of the enterprise, it has to be shown that the crime can be imputed to one member of the joint criminal enterprise, and that this member – when using a principal perpetrator – acted in accordance with the common plan. The Appeals Chamber does not consider the Trial Chamber’s finding to satisfy this requirement. The Appeals Chamber, Judge Niang dissenting, therefore finds that the Trial Chamber’s failure to further elaborate on this link amounts to a failure to provide a reasoned opinion. In view of the Trial Chamber’s error of law, the Appeals Chamber will consider whether the factual findings in the Trial Judgement as a whole would allow a reasonable trier of fact to establish a link between the members of the Scorpions Unit and a member of the JCE to Murder.

1066. Although insufficient on their own to establish a link, the Appeals Chamber notes that the Trnovo killings share certain features with other crimes committed in furtherance of the common plan, namely that the victims were Bosnian Muslim men from Srebrenica, the killings occurred “in July 1995, after the fall of Srebrenica”, and the victims were lined up and shot with automatic rifles.

1067. As previously discussed, one way to establish the required link would be to demonstrate that in the lead up to the Trnovo killings, the Scorpions Unit co-operated with the VRS, either directly or through the MUP forces, with respect to the custody or control of the prisoners killed in Trnovo. In this regard, the Prosecution asserts it is reasonable to infer that the Bosnian Muslim men killed in Trnovo were captured by or surrendered to the BSF who then handed them over to the Scorpions Unit. The Appeals Chamber observes, however, that the Trial Chamber, having considered and rejected similar arguments, concluded that “₣ağny inference that there was coordination with the VRS Main Staff is speculation”. In reaching this conclusion, the Trial Chamber rejected the Prosecution’s arguments that: (1) the Bosnian Muslim men were arrested in the Drina Corps’ zone of responsibility; (2) the logistics of their transport would have required VRS Main Staff involvement; and (3) the Scorpions Unit would have been unable to take any actions without orders from the BSF and the MUP in Trnovo. The Trial Chamber also took into consideration that it was not presented with evidence: (1) indicating that the six men were detained in the Drina Corps’ zone of responsibility; (2) shedding light on the men’s journey from Srebrenica to the Trnovo area; or (3) indicating that there was any VRS Main Staff involvement in the six men coming into the custody of the Scorpions Unit. The Appeals Chamber is not persuaded that the Trial Chamber’s conclusion – that to infer co-ordination between the Scorpions Unit and the VRS Main Staff would be speculative – is undermined by either the evidence that the six Trnovo victims were last seen along the route of the column between Bratunac and Nova Kasaba, or that other Bosnian Muslim men from the column were captured by or surrendered to the BSF stationed along the Bratunac-Konjevi} Polje Road.

1068. In submitting that the Scorpions Unit and MUP forces were closely co-ordinated during the relevant time period, the Prosecution relies on evidence that demonstrates that: (1) the Scorpions Unit was deployed in Trnovo from late June through at least the end of July 1995; (2) on 1 July 1995, Borovcanin reported on activities on the Trnovo battlefield, including on an attack involving the Scorpions Unit; (3) Borovcanin was in Trnovo on the Sarajevo front until he was resubordinated on 10 July 1995; (4) a mixed company of joint Republic of Serbian Krajina (“RSK”), Serbian and RS MUP forces was among the units under Borovcanin’s command when he was resubordinated and that during the night of 10 July 1995 this mixed company was to withdraw from the Trnovo battlefield and assemble in front of the Public Security Station (“SJB”) in Bratunac by noon the following day; and (5) upon arrival in Bratunac, Borovcanin was to report to Krstic.3113 This circumstantial evidence suggests that Borovcanin worked with the Scorpions Unit and the VRS Sarajevo-Romanija Corps while he was in Trnovo. However, when considered alongside the Trial Chamber’s finding that the only evidence about the whereabouts of the mixed company of joint RSK, Serbian, and RS MUP forces after re-subordination was that they did not arrive in Bratunac,the Appeals Chamber is not persuaded that the only reasonable inference available was that Borovcanin continued to co-ordinate with the Scorpions Unit after he was re-subordinated on 10 July 1995. The Appeals Chamber further emphasises that the killings were committed in Trnovo, which although only 150 kilometres from Zvornik, falls within the area of responsibility of the Sarajevo-Romanija Corps, rather than the area of responsibility of the Drina Corps like the other crimes. Finally, with respect to the Prosecution’s argument that the BSF continued to search for ABiH soldiers and to capture and kill smaller groups of Bosnian Muslim men fleeing from Srebrenica even after the mass killings were complete, the Appeals Chamber considers that although it demonstrates the continued implementation of the murder operation, it is of limited relevance in showing a link between the Scorpions Unit and a JCE member. The Appeals Chamber, Judge Niang dissenting, therefore considers that a reasonable trier of fact could not have established a link between the members of the Scorpions Unit and a member of the JCE to Murder.

1069. In light of these considerations, the Appeals Chamber, Judge Niang dissenting, considers that a reasonable trier of fact could not have concluded that the members of the JCE were responsible for the Trnovo killings. The Appeals Chamber, Judge Niang dissenting, therefore grants in part Beara’s ground of appeal 17 and Popovic’s appeal in this regard, and reverses their convictions under the following counts to the extent they concern the Trnovo killings: Count 1 (genocide); Count 3 (extermination as a crime against humanity); Count 5 (murder as a violation of the laws or customs of war); and Count 6 (persecution as a crime against humanity).

I do not have an opinion regarding the sufficiency of the evidence and whether the Appeals Chamber should have imputed the killings to the defendants in this case. Rather, I am concerned that the Appeals Chamber did not do enough to establish a particular standard or doctrine to “re-link” perpetrators with killings performed by individuals outside of the JCE. There is nothing close to a standard announced here, but rather the Chamber simply reasserts that there must be some connection in order to justify the imputation. Well yes, but what criminal law doctrine structures that imputation? To me it’s a bit like saying that a defendant in a criminal trial can be punished for someone else’s killing as long as there was some coordination between them, but without specifying whether the defendant is an accomplice, conspirator, instigator, or whatever.

The Chamber performs a fact-intensive inquiry into the matter without any particular doctrine or mode of liability to aid the analysis. It does say that cooperation or coordination would be “one way to establish the link,” and that there was insufficient evidence of such cooperation or coordination in this case. OK, but does that mean that a link could be established in some other way? And if so, what is the overall Dogmatik justification for imputing the criminal actions of non-members to members of the JCE?

Again, I’m not objecting to the result in this case, but rather questioning whether the Appeals Chamber has answered the necessary doctrinal questions and whether they have given sufficient guidance to further Trial Chambers. The results here seem decidedly fact-dependent and, shall we say, under-theorized. 

An Intersubjective Treaty Power

by Duncan Hollis

Ian Henderson may be mad at me.  He asked for fewer posts on foreign relations.  But he also asked for more posts on treaties.  I have a new paper up that tackles both topics — An Intersubjective Treaty Power.  For those of you who are interested in such things, here’s the abstract:

Does the Constitution require that U.S. treaties address matters of international concern? For decades, conventional wisdom answered that question negatively; The Restatement (Third) of U.S. Foreign Relations Law dismissed the very existence of an international concern test. In Bond v. United States, however, three Justices – Alito, Thomas, and Scalia – insisted on its existence, pushing the issue into the foreground of foreign relations law.

This article analyzes whether the Constitution contains an international concern test and what contours it has. I argue that Justices Alito, Scalia and Thomas are correct – and the Restatement (Third) was wrong – on the test’s existence. Various modalities of constitutional interpretation – original meaning, historical practice, doctrine, structure, and prudence – offer evidence supporting some version of an international concern test. But I part ways with the Justices on how the test works. They and other proponents have tended to look for static or objective criteria to divide appropriate “international” matters from impermissible “purely domestic” ones.

In contrast, I argue that the international concern test is intersubjective. U.S. treaties can only be formed (or ratified, implemented, or applied) where the relevant actors at each stage (e.g., States in forming a treaty, the President and the Senate in ratifying it) share a belief that its subject-matter is international. Absent that understanding, the treaty will not be formed (or ratified, or implemented, or applied). Such views may coincide or divide depending on the context. Thus, the Supreme Court could agree that the Chemical Weapons Convention generally addressed a matter of international concern, even if they also agreed that the prosecution of Ms. Bond did not. Nor are these understandings fixed; issues need not be “purely” domestic (or international) for all time. Some topics such as human rights were once understood by States (and the President and the Senate) to be inappropriate subjects for treaty-making, but are now believed to be an essential aspect of international relations. Other topics such as Native American relations were once subject to extensive treaty treatment, but are now no longer accepted as appropriate subjects for U.S. treaties.

This article thus answers one of the longest running questions of U.S. foreign relations law. It confirms the existence of an international concern test, but locates its operation within the treaty process rather than in an externally-imposed laundry list of topics or criteria. In doing so, it provides an explanatory lens for a U.S. treaty practice that many label incoherent and suggests a need for more research on what conditions generate intersubjectivity (or its absence).

 

Hostages and Human Dignity

by Jens David Ohlin

News reports indicate that Jordan is engaged in frantic negotiations with the Islamic State (ISIS) over a proposed hostage swap. Jordan is apparently willing to turn over a prisoner, would-be suicide bomber Sajida al-Rishawi, in exchange for ISIS releasing both a Jordanian air force pilot and a Japanese captive. For reasons that aren’t entirely clear, the deal appears to have collapsed.

Earlier video appeared to show that another Japanese hostage was murdered by ISIS–a development that provoked shock and outrage in Japan. ISIS hostage-takers had earlier demanded $200 million from the Japanese government in exchange for releasing the two Japanese nationals. Although Japan is not militarily engaged in the armed conflict against ISIS, the terrorist organization said that its actions were motivated by the financial assistance that Japan had pledged to the regional effort, though Japan clarified that the financial assistance was for non-military efforts. Unfortunately, that clarification did not dissuade ISIS from continuing to threaten the life of the remaining hostage.

It is unclear what policy Japan is following regarding negotiating with ISIS generally and paying ransom demands specifically.

The United States and Britain have explicit policies against paying ransom to ISIS or other terrorist organizations. Consequently, while many captives from other European countries have been released after their governments paid ransoms to ISIS, several U.S. and British hostages have been brutally beheaded because their governments refused to negotiate or give money to ISIS to win their release. This has caused anguish for the families of the hostages.

In this post, I don’t want to address the normative question of whether it is best (morally or strategically) to pay a ransom. Of course, paying the ransom wins the release of the individual hostage. However, it also emboldens and encourages ISIS and other terrorists to perpetrate more kidnappings. It is precisely for this reason that the U.S. refuses to negotiate and pay money to ISIS.  The ransom payments are bankrolling the ISIS war in Iraq and Syria. So the European countries that are paying the ransoms are providing (indirectly and under duress) the resources for ISIS to fight the military coalition that is trying to stop them from carving its caliphate out of the territory of Iraq and Syria.

Rather, I want to ask the descriptive question of why most European governments are willing to pay the ransoms while the U.S. and Britain will not.  Both sides of this issue understand the pragmatic consequences. So why the different conclusions?

I have spent a long time thinking of the question and the only answer i can find is: human dignity. The U.S. and British position sacrifices the interests of the individual hostage in order to serve a larger social goal: denying ISIS the financial resources to continue its military campaign. This is a consequentialist calculation. The problem is that it is not so good for the individual hostage.

European governments care about the lives of the hostages and are willing to save them, even though they know that saving them will make the overall situation worse, both for the global community as well as their own citizens will inevitably be taken hostage again. But they are unwilling to balance away the interests of the hostage for some larger societal interest. This preservation of, and respect for, human dignity is deeply entrenched in some European legal cultures. For example, article 1 of the German Constitution says that human life is inviolable and cannot be balanced away. Utilitarian balancing is impermissible as a matter of constitutional law if it violates the human dignity of the individual, who is entitled to moral and legal respect. This means that the life of the hostage cannot be subordinated to the global interests that are advanced by the policy of non-negotiation.

Of course, one caveat here. The cause of the hostage’s peril stems from an outside agent (ISIS), not the government. So the government is not directly harming the hostage by not paying the ransom. This makes the situation much different from the German Airliner case, where the German courts concluded that authorizing the shooting down of a hijacked airliner would be unconstitutional because it would violate the human dignity of the innocent passengers. In that situation, the passengers would have been killed by the German government, while in the case of the hostages, their deaths would be caused by ISIS, not their own government. This is a relevant difference, both morally and legally.

That being said, I still think that, as a descriptive matter, the commitment to human dignity and moral individualism is at play in the background here. For some European governments, as well as their domestic populations exerting political pressure on them, the interests of individual citizens cannot be dismissed simply because a larger social policy requires doing something different. For some European governments, that social policy sounds particularly cold because it indirectly ends up condemning the individual hostages. The question is why these governments think this result would be cold. And I think the reason why is because the commitment to Kantian dignity is more deeply engrained in some legal cultures than others.

 

RIP, Luke T. Lee, Expert on Consular Law

by Julian Ku

I never met the late Luke T. Lee, but his work, Consular Law and Practice, was one of the first treatises on “practical” international law I ever encountered. As a young student intern in the U.S. State Department, I remember going to his book again and again as I tried to figure out exactly what would happen to a U.S. consular official who got into a car accident in Jerusalem but whose consular status was never properly recognized by the government of Israel (There is a memo I wrote on this subject somewhere in the bowels of the State Department that may or may not ever have been read).  Lee’s work was not breathtakingly complex or sophisticated, but it was clear, careful, and comprehensive on the questions it set for itself. Works like Consular Law and Practice are not the only purpose of writing legal scholarship, but it is a purpose that is still worth celebrating.  RIP.

More on Boehner’s Netanyahu Invite (and What It Says About Constitutional Change)

by Peter Spiro

My earlier post on whether John Boehner’s invitation to Benjamin Netanyahu seems to have triggered a little in-house conservative disagreement on the issue (or at least Weekly Standard’s Adam J. White is giving me credit for that). Mike Ramsey and David Bernstein come out against the invite’s constitutionality here and here; White argues in favor.

As I left off my first post, the question is appropriately raised but I think ultimately the Boehner move will go down as policy stupid but constitutionally legitimate. Appropriately raised because the invitation seems so patently at odds with a “one voice”/”sole organ” approach to foreign relations. Nice to have Mike Ramsey to confirm that the Founding generation wouldn’t have bought in (though Ryan Scoville dissents on the historical record here). But it would have provoked a huge controversy in the 20th century as well — see the much more informal interaction between Jim Wright and the Sandinistas during the Reagan years. Imagine if Wright had invited Sandinista leader Daniel Ortega to address Congress. I think a lot of folks would have deployed constitutional objections to that.

But just because it may have been unconstitutional then doesn’t mean it’s unconstitutional now.

The fact that it was left to a niche blogger to raise the constitutional question this time around pretty much proves the fact that this is now water under the constitutional bridge. There’s no way to put the lid on direct communication between members of Congress and foreign government officials. So much for “one voice.” One has to assume such communications are now dense. Making the jump from lots of behind-the-scenes contact to more formal actions like the Boehner invitation looks small. One might even argue that it is transparency enhancing. Better to play the institutional cards openly than hide them under the table. (Adam White highlights similar activity on the part of the courts, including the increasing amicus practice of foreign states. That practice would have raised a lot of eyebrows as recently as a couple of decades ago, especially on domestic issues; it’s now pretty routine.)

So the episode is a nice illustration of how changes in context can change constitutional understandings. Assuming the constitutional debate on the Boehner move remains restricted to a side conversation among constitutional scholars, it will supply a good precedent for similar moves on Congress’ part in the future. The practice then becomes constitutionally entrenched, accepted by all relevant actors. Any earlier understandings (including ones dating back to the founding) are overtaken by events. Th Constitution necessarily adapts to the world in which it has to operate.

Current Guantanamo Detainee Publishes Diary

by Deborah Pearlstein

While I’ve no insights into why the government finally permitted current Guantanamo detainee Mohammedou Slahi to publish the diary he hand wrote in English back in 2005, several years into his captivity, published it now is, subject to relatively minor redaction. The diary is a remarkable read in many respects; my longer take and a summary of Slahi’s account can be found in my review for the Washington Post this past week. Slahi, a Mauritanian national who holds a degree in electrical engineering, describes brutal beatings and other forms of torture not only in detention while in Jordan, but also at length at Guantanamo itself. A federal district court in Washington ruled in 2010 that Slahi’s petition for habeas corpus be granted; on appeal, that decision was remanded (for the application of a different standard of who can be considered “part of” Al Qaeda), and there it continues to sit. Diary publication notwithstanding, Slahi remains at Guantanamo today.

Is Boehner’s Netanyahu Invite Unconstitutional?

by Peter Spiro

John Boehner has invited Bibi Netanyahu to address Congress. There’s a modern tradition of foreign leaders appearing before the legislature (list here). I’m willing to bet that every single one of those appearances was pre-cleared with the State Department or White House in advance.

I’m no student of Middle East politics, but it’s seems pretty clear that the the White House and the congressional GOP leadership are at loggerheads on US policy here and that the Boehner invitation is meant to advance the GOP (and Israeli) position on Iran. In the past, when members of Congress have gone freelance on foreign policy there’s been a tradition of waving around of the Logan Act, which provides:

Private correspondence with foreign governments.

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

It happened most prominently when Jim Wright played footsie with Nicaragua’s Sandinista regime in the 1980s. It was suggested as a problem as recently as 2007 when Nancy Pelosi visited Syria against Bush Administration wishes. As conservative commentator Bob Turner argued in a Wall Street Journal op-ed (“Illegal Diplomacy“):

consider this statement by Albert Gallatin, the future Secretary of the Treasury under President Thomas Jefferson, who was wary of centralized government: “it would be extremely improper for a member of this House to enter into any correspondence with the French Republic . . . As we are not at war with France, an offence of this kind would not be high treason, yet it would be as criminal an act, as if we were at war . . . .” Indeed, the offense is greater when the usurpation of the president’s constitutional authority is done by a member of the legislature — all the more so by a Speaker of the House — because it violates not just statutory law but constitutes a usurpation of the powers of a separate branch and a breach of the oath of office Ms. Pelosi took to support the Constitution.

No intent here to compare Netanyahu and Assad, but the logic of presidential control applies in both cases. (This isn’t about actual prosecution under the Logan Act. No one is ever actually prosecuted under the measure; it’s more a focal point for highlighting structural aspects of foreign relations.) In both cases, presidential powers are “embarrassed” in the terms of Curtiss-Wright. Will the Wall Street Journal take Boehner to task for his move? Somehow I doubt it. (For that matter how could constitutional originalists square this with the Framers’ intent? No head of a foreign state appears to have addressed Congress prior to 1919.)

The White House has called the Boehner move a breach of protocol. If this were happening beyond the political anomalies of the Middle East, I wonder if it might be using some stronger language. In any case the episode will set a precedent for congressional bypass of executive branch foreign policy in interacting, fairly formally, with foreign government leaders. (Will the Speaker host something like a state dinner for Bibi?)

Mind you, I’m not sure it’s a bad precedent (again, leaving aside policy particulars of the ME situation). It’s a fact of life that governmental components are now semi-autonomous foreign policy players in a way that would have been unimaginable in the 18th century. The constitutional custom, norms, “protocols” — whatever you want to call them — are catching up to those realities. Presidents will just have to learn to deal with the new tools of foreign policy dissent.

UPDATE: More thoughts from me on this here. On the originalism point, don’t take it from me, take it from Mike Ramsey, easily the leading expert on originalism in the context of foreign affairs. The VC’s David Bernstein, a consistent Israel/Netanyahu/GOP backer, is also on board in thinking there is a constitutional problem.

Does President Obama Need Congress to Lift the Embargo on Cuba? Yes.

by Julian Ku

It looks like a big showdown is brewing between the President and Congress over Cuba policy (Here comes 2016 presidential candidate Rubio!).  Some legal commentators have argued, however, that President Obama already has the legal authority to lift all or most of the Cuba embargo without any further action by Congress.  Robert Muse, a lawyer whose practice is all about Cuba sanctions law, has stated that the President has very broad discretion to lift most of the restrictions on trade with Cuba without further congressional action. Is he right?

I am not Cuba sanctions law expert, so it is possible I am missing something.  Since the bulk of the Cuba sanctions are found in regulations issued by the Treasury Department’s Office of Foreign Assets Control pursuant to the Trading with the Enemy Act, it would seem like President Obama could indeed lift those sanctions by simply withdrawing those regulations.  The TWEA has never been read to require sanctions, and President Carter lifted similar sanctions on China without Congress in 1979.

On the other hand, Congress has also enacted two Cuba-specific statutes: the Cuban Democracy Act of 1992 (CDA), 22 U.S.C. §§ 6001-6010 and the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, 22 U.S.C. §§ 6021-6091 (“Helms Burton). The latter appears to codify” the OFAC regulations on Cuba that were initially issued under the TWEA. See Section 102(h) (“Codification of Economic Embargo.– The economic embargo of Cuba, as in effect on March 1, 1996, including all restrictions under part 515 of title 31, Code of Federal Regulations, shall be in effect upon the enactment of this Act, and shall remain in effect, subject to section 204 of this Act.”).  Section 204 in turn “authorizes” the President to lift sanctions only after submitting a determination to Congress that a transitional government in Cuba exists and that the lifting of sanctions will contribute “to the stable foundation for democratic government.” There is also the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA), 22 U.S.C. §§ 7201-7211, which imposes further limitations on financial transactions with Cuba and allows no Presidential waiver.

It is worth noting that President Clinton expressed some reservations about the impact of Section 102(h) when he signed the Helms-Burton Act, stating that it”could be read to impose overly rigid constraints on the implementation of our foreign policy.” But Clinton didn’t suggest imposing conditions on when the President could lift sanctions actually violated the Constitution.  Since I assume Congress is the source of the authority to impose sanctions in the first place, it seems reasonable that Congress could impose conditions on when those sanctions can be lifted.  Any argument that those conditions themselves are unconstitutional would be a remarkably aggressive legal argument.

So I don’t think the calls from some quarters for a unilateral lifting of the embargo on Cuba is supportable as a legal matter.  In fact, there are good reasons to doubt the legality of the loosening of sanctions already announced by OFAC.  In any event, there will be lots of legal skirmishing over the next few months on this front. It will be interesting to see if President Obama ever pulls out the “presidentialist” card and tries to argue some of these sanctions laws violate his constitutional authority.  I would doubt it, but then again I never thought he would engage in a separate war in Iraq and Syria with ISIS and change US immigration law without Congress either.