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Weekend Roundup: September 20, 2014

by An Hertogen

This week on Opinio Juris, we hosted an insta-symposium on the Scottish Independence Referendum. David Scheffer surveyed the legal terrain in case of a yes vote, Stephen Tierney discussed how Scotland’s move to independence would be characterised under international law, Milena Sterio argued that international law could develop a norm containing a positive right to secession under certain circumstances, Jure Vidmar looked at Scotland’s position in the EU, Tim Sparks took a long view, and Christopher Connolly discussed the phrasing of the referendum question. Finally, Chris asked whether there will be a Scottish precedent.

In other guest posts, Eliav Lieblich updated us on recent developments in an Israeli case reviving international prize law, Leila Nadya Sadat and Douglas J. Pivnichny wrote about recent steps towards a comprehensive treaty on crimes against humanity, Yanying Li alerted us to a UNGA resolution on a multilateral framework for sovereign debt restructuring, and Michael W. Lewis responded to Kevin’s critique last week of his post on the nature of self-defense.

In other posts by our regular contributors, Kevin criticized the University of Sydney for restricting academic freedom after it “un-invited” Sri Lankan NGOs from an international conference on the enforcement of human rights in the Asia-Pacific. Peter asked if ISIL fighters can be stripped of their passports, and remarked that the AUMF basis for an ISIL intervention looks likely to stick. More on ISIL came from Jens who discussed the issue of ransom and material support for terrorism. Finally, Kristen explained why the Security Council’s decision to take up the issue of Ebola is significant.

As always, Jessica wrapped up the news and listed events and announcements. Duncan also updated us on the new Executive Director of ASIL.

Many thanks to our guest contributors and have a nice weekend!

Ransom and Material Support

by Jens David Ohlin

The Foley family is furious that the US government did little to help them rescue their son, James Foley, from ISIS terrorists. In a recent New York Times article, the Foley family expresses frustration that European countries were quietly negotiating to pay ransoms for their nationals, while the US steadfastly refused to do so. As foreign nationals were gradually released for payments, detainees from the UK and the US remained behind because these two countries refuse to pay ransoms to terrorists. The Foleys figured this out late in the game and attempted a last-minute fundraising campaign to generate funds, but the effort came too late. They were also told by FBI agents that they could be prosecuted for paying a ransom to ISIS in exchange for their son.

I want to analyze in greater detail the claim that paying a ransom to ISIS could constitute a crime. I’m not aware of a specific federal statute banning the paying of ransoms to terrorist organizations. (If readers are aware of such a statute, please let me know in the comments section). Rather, I’m assuming that the FBI claim is based on the application of the material support provision of the federal code (18 U.S. § 2339B) which provides:

(a) Prohibited Activities.—

(1) Unlawful conduct.— Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).

(2) Financial institutions.— Except as authorized by the Secretary, any financial institution that becomes aware that it has possession of, or control over, any funds in which a foreign terrorist organization, or its agent, has an interest, shall—
(A) retain possession of, or maintain control over, such funds; and
(B) report to the Secretary the existence of such funds in accordance with regulations issued by the Secretary.

The first question is whether the payment of ransom constitutes the knowing provision of material support or resources. I’m not sure what a jury would do with this question. On the one hand, any money, delivered for any reason, can be considered a type of resource. Furthermore, the statute criminalizes knowing support, not just purposeful support. If it was the latter, the Foleys could claim that their purpose was to free their son, not provide material support. But since the mens rea is knowingly, perhaps they would be liable even if their purpose was the freedom of their son.

The bigger issue is whether they could claim an affirmative defense. The most likely possibilities are necessity and duress.

Necessity applies when a defendant, in response to a threat or emergency, violates a criminal prohibition because doing so represents the lesser of two evils. In that sense, the necessity defense has a utilitarian or consequentialist logic stemming from its status as a justification. If the defendant produces a greater evil, then the defense no longer applies.

In contrast, duress applies when the defendant performs a criminal act due to a threat of grave injury or death to the defendant or a close associate, emanating from a third party. (In the past I’ve argued that the defense should apply even if the target of the threat is not a close associate.) The paradigm of duress involves an autonomy-reducing threat that requires a level of moral heroism that cannot be expected by the law. The third party “forces” the defendant to violate the criminal prohibition by virtue of a threat that cannot be reasonably ignored. As such, duress is an excuse which negates the culpability of the actor. As an excuse, duress should not require that the defendant selected the lesser of two evils, because the claim has nothing to do with the defendant’s selection of a better outcome. Indeed, in duress situations the defendant may have selected the worse outcome because they are unwilling to sacrifice the life of the threatened individual.

American jurisdictions impose restrictions on the application of both defenses. Under the rule from Dudley & Stephens, necessity and duress are unavailable in cases of murder. There is a complicated question of whether the same exclusion should apply in manslaughter cases.

It seems clear to me that the Foleys, if they had paid a ransom to ISIS, would be (and should be) entitled to a duress defense. If they paid the ransom to ISIS, they would be providing material support to ISIS only by virtue of the threat against their son, which they cannot reasonably be expected to ignore. The government position is that paying ransom endangers future US citizens who would be captured for ransom by a terrorist organization incentivized to repeat the strategy. This seems factually true, though this point is irrelevant: duress as an excuse applies even if the outcome produced by the defendant is worse. Duress is not a lesser-evils defense. Finally, even if it were relevant, the future lives endangered by paying a ransom are speculative and hypothetical, rather than actual and manifest.

As a final point, necessity is often excluded as a defense if the statutory provision embodies a specific legislative choice or policy to criminalize the decision made by the defendant. However, that exclusion does not apply to excuses such as duress. And even in the context of necessity, there is no evidence that Congress had in mind the specific situation of paying ransom to terrorists. If, in the future, Congress passes a specific statute outlawing the paying of ransom to terrorists by private citizens, then the exclusion would be relevant.

Consequently, the Foleys are entitled to the duress defense, and that seems like the right result. And it also helps to explain the popular outrage over the FBI’s heavy-handed techniques against the Foley family. For the FBI agents to suggest to the Foleys that they would be prosecuted for paying the ransom was not only tone deaf–but it also indicates that the FBI agents did not understand the law of duress.

The UN Security Council Takes up Ebola

by Kristen Boon

Today, the UN Security Council held an open debate on the ebola outbreak in Africa, and unanimously adopted Security Council Resolution 2177.   Background on the US sponsored resolution is available here.

The Council’s decision to take up the issue of Ebola is significant for three reasons. First, the Council calls the Ebola outbreak a threat to international peace and security. In the preamble, the Resolution expressly states the Council is “determining that the unprecedented extent of the Ebola outbreak in Africa constitutes a threat to international peace and security.”  Although the resolution was adopted under Chapter VI (apparently due to concerns from Russia), it indicates a broadening concept of what events might trigger the Council’s jurisdiction.    Security Council meetings on public health crises are rare, although two prior resolutions have been adopted on HIV/AIDS in 2000 and 2011 (S/RES/1308; S/RES/1983).

Second, the resolution contains a number of direct instructions to member states and private industry.   It “calls on” Member states to lift general travel and border restrictions, provide urgent resources and assistance, including deployable medical capabilities.  It also “calls on” airlines and shipping companies to maintain trade and transport links, reinforcing the Council’s increasing engagement with non-state actors.

Finally, the outbreak of Ebola is changing the UN’s approach to intervention in Liberia generally. Not only have plans to wind down UNMIL and UN sanctions been put on hold in light of the public health and social crisis, but the role of UNMIL is likely to evolve, with peacekeepers being called upon to provide logistical support to fight the epidemic.

This is a good step by the Security Council: it is demonstrating its relevance to a current and destabilizing threat with international ramifications, in a country that has been on the Council’s agenda for many years.

Will There Be a Scottish Precedent?

by Chris Borgen

Since Kosovo’s declaration of independence there has been talk about whether there is a “Kosovo precedent,” and, if so, just what does it mean. The International Court of Justice’s advisory opinion
captured the imaginations of national parties throughout Europe. For example, Aitor Estaban, a representative from Spain’s Basque Nationalist Party (PNV) said that “the main consequence is that Spain cannot keep saying that the international rules don’t allow for a split of the country for a new Basque independent country into the European Union. So I think that should be already over and that’s good news for us.” (See H. Jamar & M. K. Vigness, ‘Applying Kosovo: Looking to Russia, China, Spain, and Beyond After the International Court of Justice Opinion on Unilateral Declarations of Independence’, 11 German Law Journal (2010) 8, 913, 925.)

Will we now add a “Scotland precedent”  as well as  a “Kosovo precedent?”  Today’s referendum in Scotland has been described as a bellwether or a “canary in the coalmine” signaling the future of nationalism within the European Union. There are currently twenty to twenty-five “significant” separatist movements across Europe. (See, Bruno Coppieters, ‘Secessionist Conflicts in Europe’, in D. H. Doyle (ed.), Secession as an International Phenomenon: From America’s Civil War to Contemporary Separatist Movements (2010), 237, 247.) Many writers seem to assume that as Scotland goes so does Catalonia, the Basque Countries, Padania, and any number of other parts of EU countries with their own national aspirations. But is this accurate? Would a “Yes” vote—or even just the fact that there is a vote—form some sort of “Scotland precedent?”

First, what do we mean by “precedent?” At times, commentators  use the word to mean, interchangeably, the strict legal sense of a legally binding decision and the looser political sense of a persuasive analogy that can be drawn from a similar case. What role may Scotland’s referendum have in regards to the nationalist movements elsewhere in the EU? Let us consider the number of legal and political factors at play in just one example: Catalonia.

At first blush, the situation in Catalonia may seem similar to that in Scotland. As a political entity, Catalonia has some similarities to Scotland (if slightly larger). As Bloomberg News explains:

Catalonia is a region in the northeast corner of the Iberian peninsula with about 7.5 million people compared with the 5.3 million who live in Scotland. Its 193 billion-euro economy is about the size of Finland’s and compares with the 150 billion-pound gross domestic product of Scotland.

Like Scotland, Catalonia has a distinct linguistic and national heritage. It has a special status within the Spanish state with greater autonomy and it has a population that has been seeking greater levels of independence, if not full separation and sovereignty. And the regional government of Catalonia has scheduled a referendum on independence for this coming November. For more on the history of Catalonia, see this.

Despite these similarities, most international lawyers could see quickly that a domestic referendum in the UK does not provide binding legal precedent for whether or not a domestic referendum in Spain would actually grant independence to Catalonia. Rather, the issue is one of political precedent: persuasive strength. In an argument supporting Catalonia’s referendum, Carles Boix and J.C. Major wrote in Foreign Affairs that, in their view:

International opinion tends to support this referendum, just as it has supported the one that will be held in Scotland this September or those that took place in Quebec a few years ago. Indeed, finding out where everyone stands would appear to be a necessary step to make an informed decision on how to proceed. And yet the Spanish government has not granted the Catalan authorities the power to conduct what would be a non-binding referendum — something that would be perfectly legal according to articles 92 and 150.2 of the Spanish constitution.

But even if one is to argue that Scotland’s referendum is persuasive authority, one first needs to consider whether the analogy is a good one. And, for that, we need to consider once again the legal and political situation. (more…)

ASIL Names New Executive Director: Mark Agrast

by Duncan Hollis

Those readers who are members of the American Society of International Law know how critical the role of its Executive Director is and how great a job the previous director, Betsy Andersen did since taking on the role in 2006.  Betsy left ASIL earlier this year to run the ABA’s Rule of Law Initiative, and my former colleague from the State Department, Ron Bettauer, has been serving as an Interim Director for the last several months.  Today, I’m pleased to report ASIL announced the hiring of its newest Executive Director, Mark Agrast.  Here’s the highlights from ASIL’s news release:

The American Society of International Law (ASIL) announces the appointment of Mark D. Agrast to serve as the Society’s eighth executive director beginning October 20, 2014 . . . Agrast, who is an ASIL member, currently serves as deputy assistant attorney general in the U.S. Department of Justice’s Office of Legislative Affairs, where he has worked since 2009. . . Prior to joining the Justice Department, Agrast was a senior vice president and senior fellow at the Center for American Progress from 2003 to 2009, and from 1992 to 2003 he held senior staff positions with two members of the U.S. House of Representatives.  Agrast previously practiced international law with the Washington office of Jones Day.  He also has served in numerous leadership capacities in the ABA, including as a member of its Board of Governors and its Executive Committee, a past chair of the Section of Individual Rights and Responsibilities and the Commission on Immigration, and current chair of the Commission on Disability Rights.  He is a longtime member of the ABA’s House of Delegates.  Agrast has co-chaired the National Lesbian and Gay Law Association (now the National LGBT Bar) and served as that organization’s ABA Delegate.  He has also been a leader of the World Justice Project since its inception and has played a central role in designing and implementing its Rule of Law Index, a quantitative assessment measure of the extent to which countries adhere to the rule of Law.  Agrast graduated summa cum laude from Case Western Reserve University, pursued his postgraduate studies as a Rhodes Scholar at the University of Oxford, and received his J.D. in 1985 from Yale Law School, where he was editor in chief of the Yale Journal of International Law. 

 

Looks Like AUMF Basis for ISIL Operation Will Stick

by Peter Spiro

After a flurry of commentary in the wake of Obama’s speech last week and the on-background legal justification that came with it, the silence has been deafening. The immediate reaction to the AUMF hook for the ISIL operation was something approaching disbelief. It came out of the blue and everyone felt blindsided.

But it is attracting some support. Marty Lederman offers a qualified defense here. Cass Sunstein is all in, so by definition it is a credible legal argument. In the New York Times, the ed board and Bruce Ackerman predictably condemn the justification. But the level of agitation among policy elites seems low, on par with responses to past presidential uses of force. There is a lot of chatter on the Hill, but the prospects for affirmative legislation to authorize or limit (or for that matter prohibit) the ISIL operation are slim. There is no groundswell of opposition from the public.

In other words, this one is going to stick. There will be no serious challenge to the Administration’s legal argument that the President has the authority to undertake the operation. From the Administration’s perspective, the AUMF basis has the advantage of turning off the War Powers Resolution’s 60-day clock. It may also look less confrontational to use a statutory justification (even if it is a stretch) than a constitutional one. It fits more comfortably into the Administration’s narrative of interbranch cooperation.

But it may not matter that the Administration grounds its argument in the AUMF and not in its independent constitutional powers under article II and historical practice. The bottom line is the same. The test: how will future presidents put the episode to work? On the one hand, to the extent that it’s just about applying a particular statute to particular circumstances, it might be seen as limited to the facts, good for this day and train only.

On the other hand, one could imagine it being deployed in support of an article II argument, especially to the extent the statutory basis for the operation looks thin in historical perspective. The informality of the justification would make it more pliable. (Will we get the full legal work-out on this from OLC? Maybe not.) If I were an OLC lawyer looking to justify some future military operation on presidential authority alone, it would look like a precedent to me.

The Administration’s strategy on the WPR clock in the Libya context had the same features and may have the same kind of legacy. The “hostilities” argument was thin as an exercise in statutory interpretation, but it was less confrontational than a constitutional claim (minimalism goes to war). The legacy there won’t just be about what qualifies as “hostilities” for WPR purposes. It is as much about the efficacy of the 60-day clock. The Libya episode doesn’t undermine claims that the WPR is unconstitutional. It might even support those claims, at least indirectly (especially as coupled with the Clinton Administration’s similarly thin defense against application of the 60-day clock in the Kosovo case).

So ultimately it may not matter too much which card the Administration played in asserting authority for the ISIL operation. As in the past, a president failed to secure specific, contemporaneous authorization for a limited use of force, and nobody really pushed back.

ISIL Foreign Fighters: You Can’t Take Their Citizenship. Can You Take Their Passports?

by Peter Spiro

The concern over ISIL foreign fighters had ramped up even before President Obama announced that he will preside over a September 24th UN Security Council Meeting on the subject. No surprise that politicians are jumping on the bandwagon. Ted Cruz introduced legislation last week in the Senate that would purport to terminate the citizenship of those associated with terrorist organizations. Michelle Bachmann has done the same over in the House. (Funny how the two chief sponsors of expatriation laws have their own personal experience with the loss of citizenship, Cruz with Canadian, Bachmann with Swiss.)

But Bachmann’s bill goes further in mandating passport revocation.

SEC. 4. AUTHORITY TO DENY OR REVOKE PASSPORT AND PASSPORT CARD.

(a) Ineligibility-

(1) ISSUANCE- Except as provided under subsection (b), the Secretary of State may not issue a passport or passport card to any individual whom the Secretary has determined is a member of an organization the Secretary has designated as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act (8 U.S.C. 1189) that is engaging in hostilities against the United States or its allies.

(2) REVOCATION- The Secretary of State shall revoke a passport or passport card previously issued to any individual described in paragraph (1).

(b) Exceptions-

(1) EMERGENCY AND HUMANITARIAN SITUATIONS- Notwithstanding subsection (a), the Secretary of State may issue a passport or passport card, in emergency circumstances or for humanitarian reasons, to an individual described in paragraph (1) of such subsection.

(2) LIMITATION FOR RETURN TO UNITED STATES- Notwithstanding subsection (a)(2), the Secretary of State, before revocation, may–

(A) limit a previously issued passport or passport card only for return travel to the United States; or (B) issue a limited passport or passport card that only permits return travel to the United States.

In contrast to citizenship-stripping, this kind of passport-stripping would pass constitutional muster from a rights perspective. In Haig v. Agee, the Supreme Court upheld passport revocation where justified by national security interests (that case involved Philip Agee, notorious for disclosing the names of undercover CIA operatives). No problem doing that in the context of ISIL fighters, one wouldn’t think.

To the extent there’s an issue here, it would involve separation of powers, Congress dictating to the President. The Supreme Court will have something to say about that this term. But the humanitarian exceptions clause undercuts any claim that this trespasses on presidential power, regardless of where the Zivotovksy case ends up.

At the same time, it’s pretty clear that the President could do this on his own (that was the case in Agee). A UNSC resolution (assuming one is adopted) would further legitimize the policy. Insofar as Congress has trouble getting its act together on anything, the Obama Administration might make passport-stripping a subsidiary component of its anti-ISIL strategy.

Guest Post: Update on Israel/Palestine and the Revival of International Prize Law

by Eliav Lieblich

[Eliav Lieblich is an Assistant Professor at the Radzyner Law School, Interdisciplinary Center (IDC)]

Back in January, I wrote a guest post  about prize proceedings initiated by the Government of Israel against the Finnish vessel Estelle, intercepted by the Israeli navy while attempting to breach the Gaza blockade in late 2012. As I wrote back then, the proceedings were held before the District Court of Haifa, sitting in its capacity as the Admiralty Court of Israel. The State based its application to condemn the vessel on old pieces of British legislation, which granted prize jurisdiction to courts in Mandatory Palestine (the British Naval Prize Act of 1864 and the British Prize Act of 1939).

As I noted back in January, prize powers have never been exercised by Israel before. Moreover, prize proceedings are extremely rare globally. Indeed, since customary prize law allows belligerents to capture and condemn private vessels – both “enemy” and, in some cases, “neutral” – prize law seems at odds with contemporary human rights norms protecting private property.

In this context, my January post raised several questions for the Haifa Court. Among these, I’ve questioned the continuous relevance of prize law in the human rights era, and whether Israeli administrative law will affect the Court’s understanding of prize law. Well, the wait is over: on August 31, the Court (Judge Ron Sokol), has rendered a 33-page decision in The State of Israel v. The Vessel Estelle.

I will spare the readers from detailing the Court’s finding of jurisdiction, although doubtless interesting to legal historians: the bottom line is that it has found itself to have inherited the jurisdiction from the former British prize courts in Palestine. But the Court had some interesting things to say in terms of substantive prize law. (more…)

Matrix Chambers Application Deadline Extended

by Kevin Jon Heller

Matrix Chambers has extended the deadline for applying to September 26 — two weeks from today. I hope readers with the appropriate credential will consider applying.

You can find the original post, with details of the Matrix vacancy, here.

On the Theory that ISIL is Al Qaeda

by Deborah Pearlstein

At the prompting of Marty Lederman and Steve Vladeck, let me take a moment to consider another possible reading of the Administration’s novel view that the 2001 AUMF authorizes its incipient campaign in Iraq and Syria. Recall that the AUMF authorizes the use of “all necessary and appropriate force against those nations, organizations, or persons” responsible for 9/11 and those who “harbored such organizations or persons.” The Administration and the lower courts have thus interpreted the AUMF to authorize the use of force against Al Qaeda, the Taliban, and “associated forces.” My earlier post examined the notion that ISIL was an “associated force” of Al Qaeda. Marty and Steve suggest that the Administration isn’t arguing that ISIL is an “associated force” of Al Qaeda, but rather, that ISIL is Al Qaeda. As Marty explains it:

In 2004, ISIL (then known as al Qaeda in Iraq) was part of al Qaeda proper–subject to its direction and control–in which capacity it attacked U.S. persons and was subject to U.S. combat operations. (Indeed, it was engaged in an armed conflict with the United States.) As such, ISIL was then covered by the 2001 AUMF as a component of al Qaeda. More recently, ISIL and al Qaeda “Central”–its “senior leadership”– have split apart. But ISIL has continued to attack U.S. persons, even after the split; and each of these two groups claims the mantle of al Qaeda–indeed, ISIL’s position (“supported by some individual members and factions of AQ-aligned groups”) is that it, not AQ Central, “is the true inheritor of Usama bin Laden’s legacy.” Accordingly, there are now, in effect, two al Qaedas, each of which was a component of the earlier, consolidated organization, and each of which continues its attacks on the U.S.

In other words, picture an upside-down letter “V” or “Λ.” At the single, sharp point of the Λ is the organization called Al Qaeda, which is responsible for the attacks of 9/11, and which at one point included all of what we now call core al Qaeda (led by Osama bin Laden, now Ayman al-Zawahiri), as well as what was once called al Qaeda in Iraq (AQI) (led by Abu Musab al Zarqawi). Over time, the unity at the top of the Λ has given way to a disunity at the bottom – with both core Al Qaeda (Zawahiri’s group) and AQI (now called ISIL, led by Abu Bakr al-Baghdadi) seeking to, as Marty puts it, “claim the mantle of al Qaeda.”

While identifying a variety of problems with the notion as a matter of statutory interpretation that the AUMF authorizes the use of force against both groups at the bottom of the Λ, both Marty and Steve argue that in key respects the validity of the theory depends on facts that are still not entirely known to the public. Is it accurate as a matter of fact to suggest that both core Al Qaeda and ISIL are both claiming or should be seen to have equal claims to “the mantle of al Qaeda”? One can imagine several ways of trying to take this theory seriously. One would begin by defining what the “Al Qaeda” at the top of the Λ (the group that attacked us on 9/11) was in the first place. One might define a terrorist group in a variety of terms, and I’m certainly open to definitional criteria. For present purposes, let’s take a handful: the organization’s name, its mission, its capacities and personnel, or any combination thereof. Then one would have to hold up each putative successor organization and see if there were any/sufficient commonality to call both AQ core and ISIL part of the same organization that attacked us on 9/11. Could ISIL in any sense assert a claim to carrying the mantle of Al Qaeda? What do we know? (more…)

Is it Legal? No.

by Deborah Pearlstein

Let’s start with the Administration’s newly minted theory (h/t Marty Lederman for posting the operative statement) that the statutory 2001 AUMF authorizes the President’s announced campaign to use force against ISIL in Iraq and Syria. The AUMF does not plausibly extend to ISIL.

In addition to the reasons my friends Jens Ohlin, Jen Daskal and others have already highlighted, let me add this: ISIL is not an “associated force” of Al Qaeda by the Administration’s own definition. In May 2013, former State Department Legal Adviser Harold Koh gave a speech at Oxford setting forth the Administration’s definition of what counts as an “associated force” under the AUMF. (Let’s ignore all questions for now about whether this is an accurate importation of the concept of co-belligerency from international law and just accept the Administration’s version as a given.) Koh said: “The U.S. Government has made clear that an ‘associated force’ must be (1) an organized, armed group that (2) has actually entered the fight alongside al Qaeda against the United States, thereby becoming (3) a co-belligerent with al Qaeda in its hostilities against America.” Is ISIL organized? Surely. Has it “entered the fight alongside al Qaeda”? Absolutely not. Al Qaeda and ISIL are fighting each other. (See just about everywhere, but e.g., here.) Has it thus become a “co-belligerent with al Qaeda in [al Qaeda’s] hostilities against America”? Please.

So what about the constitutional theory, i.e. that the President has inherent authority under Article II of the Constitution as Commander in Chief to undertake the extended campaign he now contemplates? Here, too, this latest initiative takes the Administration several steps beyond even its own previously announced, already expansive understanding of the President’s constitutional authority – set forth in an Office of Legal Counsel memorandum in 2011 justifying the use of force in Libya without congressional authorization. Under the Obama OLC view, the President’s constitutional power permits him to use force without congressional authorization (1) if its use serves “important national interests,” AND (2) if the use of force doesn’t rise to the level of a “war” (based on the anticipated nature, scope, and duration of the planned operations), such that the power to launch it falls within Congress’ express constitutional power to “declare war.” Let’s set aside the troubling breadth of the first part of that standard (does the need to identify any broad “important national interest” really constrain presidential power?), and the inherent unpredictability of the second part (when was the last time a contemplated use of military force by the United States turned out just how we had “anticipated”). Let’s also assume that the broad standard “important national interests” is met here. At a minimum, the United States has an interest in supporting regional stability and protecting America’s various allies and interests ISIL has threatened.

But the ability to call the current engagement not-war pushes all envelopes. Here, unlike in Libya, the President himself has indicated defeating ISIL will be no short-term matter. Unlike in Libya, there is no pretense that the United States will be providing principally logistical support for an air campaign, with our allies doing the actual bombing. Here, according to the President, we will be leading the way, and we will be, in the administration’s own contemplation, engaged for some time. As for the prospect of not having “boots on the ground,” assurances on that matter already seem belied by the presence already of more than a thousand publicly known U.S. military and other personnel in the country – personnel whose safety has already been invoked to justify the use of escalated force. Call them “advisors” if one must, but they have feet, some of them undoubtedly clad in boots, all of them already on the ground. And more to come. The United States is engaged in an “armed conflict” in international law terms (already a non-international armed conflict in Iraq, and if we undertake bombing in Syria without that country’s consent, an international armed conflict as well). We will be using armed force. Many people will die. In other words, in any constitutional sense, this is war.

All this is before we’ve reached more difficult questions of international law, or questions of the Administration’s intention to comply, sooner or later, with the existing domestic War Powers Act, requiring Congress to authorize, sooner or later, any such prolonged entry of U.S. forces into hostilities. I’ll hope to address those separately. In the meantime, for all the uncertainty and challenge of the threat ISIL poses, the difficulty of the policy decisions that must have been involved here, the politics of the impending elections, the complexity of some legal questions in this field – this legal question is one of the easy ones. As a matter of law, the President needs additional authority from Congress. Asserting he has it already is wrong.

Obama’s Lame Justification for the ISIL Strikes (He Played the Wrong Card)

by Peter Spiro

I’ll pile on in deploring the legal justification for the expanded operation against the Islamic State. No one is buying the AUMF basis. In addition to Jens below, Jack Goldsmith and Jennifer Daskal have devastating critiques here and here.

The justification could have lasting negative consequences for interbranch relations in the war powers context. The 2001 AUMF involved a context in which congressional authorization was necessary, the response to the 9/11 attacks comprising real “war” for constitutional purposes. It has now been deformed beyond all recognition. This will deter future Congresses from authorizing the use of force even where such congressional authorization is necessary.

It’s a little like Tonkin Gulf. That resolution gave the President what he needed to respond to an (alleged) attack by North Vietnamese forces. But the ensuing conflict was beyond anything that Congress could have imagined at the time, and it felt burned for a generation thereafter for having written what turned out to be a blank check. Depending on how the ISIL operation goes, Obama’s justification could result a similar kind of institutional resentment and distrust, which will make cooperation even more difficult than it already is.

Part of the disappointment here is that he had a much better card to play: longstanding historical practice. (This typically comes under an Article II/Commander in Chief label, though I don’t think you need the constitutional text to get there). The ISIL operation would have comfortably fit into the tradition of Presidents undertaking limited uses of force without congressional authorization. There would have been continuity to that argument — many would have disagreed, but I think the critique would have subsided in due course, because it would have enjoyed a strong basis in the practice. I don’t know if the critique of the AUMF justification is going to subside so quickly. The early returns are not promising.