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The 9/11 AUMF does not cover ISIS

by Jens David Ohlin

Last night I blogged about Obama’s speech that outlined the administration’s plan to contain and destroy ISIS. I noted that Obama announced his intention to ask for congressional authorization for the plan while steadfastly maintaining that he did not need this authorization. He was vague about why. In my blog last night, I presumed that he was asserting that he had authority under his Article II commander-in-chief power.

Marty Lederman notes in the comments, as well as on Just Security, that this was not a reference to an Article II argument. A senior administration official released a statement last night confirming that Obama is relying on the 9/11 AUMF as an enduring authorization that covers the new military initiative against ISIS.

I find this argument implausible. Here is the relevant text of the AUMF:

IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Since, al-Qaeda launched the 9/11 attacks, the AUMF covers al-Qaeda. It also covers organizations that planned, authorized, committed or aided the attacks, or organizations that harbored those organizations. Consequently, non-al-Qaeda organizations are covered by the AUMF insofar as they are connected to al-Qaeda in the right way.

This is a question of law application to fact, so it is necessarily a fact-dependent analysis. However, there appears to be little evidence that this link exists between ISIS and al-Qaeda. Of course, ISIS was once part of (or closely associated with al-Qaeda), and therefore at that time the AUMF arguably covered ISIS. Before its current manifestation, ISIS was considered an Iraq franchise of al-Qaeda, operating under the banner of Osama bin Laden and ostensibly subordinating itself under his operational control.

That relationship no longer exists. ISIS no longer operates under the banner of al-Qaeda, nor is it operationally subordinate to what is left of al-Qaeda core or any of the other al-Qaeda franchises. And famously, al-Qaeda effectively excommunicated ISIS for not following its central directives regarding target selection. Al-Qaeda officials correctly concluded that ISIS’s strategy was counter-productive because it alienated Muslims, and they promptly disassociated themselves from a group that was too radical even by al-Qaeda’s standards. So the operational link is broken, and has long-since been broken.

So what is the connection that the administration is asserting? They argue that

Based on ISIL’s longstanding relationship with al-Qa’ida (AQ) and Usama bin Laden; its long history of conducting, and continued desire to conduct, attacks against U.S. persons and interests, the extensive history of U.S. combat operations against ISIL dating back to the time the group first affiliated with AQ in 2004; and ISIL’s position – supported by some individual members and factions of AQ-aligned groups – that it is the true inheritor of Usama bin Laden’s legacy…

This is a weak argument. Yes, ISIS once had a relationship with al-Qaeda and Osama Bin Laden, but that prior relationship no longer governs. What matters is the current relationship. Furthermore, the fact that ISIS is the “true inheritor” of Bin Laden’s legacy is neither here nor there. In what sense is ISIS the “inheritor” of Bin Laden’s legacy? The only one I can think of is that ISIS represents the gravest Jihadist threat to the peaceful world — a position once held by Osama Bin Laden. Also, the fact that they threaten U.S. personnel and interests is an argument that proves way too much — plenty of other groups do that as well, which isn’t terribly relevant. None of this makes ISIS fit into one of the AUMF categories (planning, aiding, haboring, etc). Simply put, ISIS is not al-Qaeda.

Don’t get me wrong. I think ISIS represents the biggest threat to regional and national security since 9/11, and military force is warranted for that reason. Congress should immediately pass a new AUMF authorizing force against ISIS. I just don’t think that the original AUMF can be stretched to cover ISIS today. It’s a weak argument that sounds like a pretext to avoid making an Article II constitutional argument (which Obama presumably disfavors).

Obama Walks a Thin Line on ISIS

by Jens David Ohlin

A few minutes ago, President Obama addressed the nation to explain his new policy to contain and destroy ISIS. He is walking a fine line: more airstrikes but no direct ground invasion. Instead, he will fund, equip, and train foreign troops to engage in the ground fighting themselves. While this is a politically popular view (ground troops are always risky), it has serious operational deficits. The U.S. has a history of training and equipping foreign troops and the results are usually unimpressive. Too often the money gets diverted and the weapons have a longer shelf life than the military organization that receives them. What happens when the political winds in the region shift? The weapons will still be there, used by actors in ways we can’t now imagine. It won’t be a pretty sight.

Obama’s view on Article II was somewhat schizophrenic. He said that he was asking for congressional authorization for the operation, though he took great pains to emphasize that he didn’t technically need congressional assent. So he is trying to have his cake and eat it too: appear sympathetic to congress while at the same time upholding a strong view of the Article II commander-in-chief power.

Of course, he said nothing about the War Powers Resolution and why he feels that he could go ahead with the operation even in the absence of congressional authorization. He has been sending multiple War Powers letters to Congress each time the military engages in a discrete operation — suggesting that he believes that he can segment military operations into small bits and pieces in order to avoid the 60/90-day limit in the War Powers Resolution. That’s a dangerous precedent, since every war is just an aggregation of small military engagements. If the segmentation move works in this case, it will work in every case, and the 60/90-day limit will be meaningless.

As for international authority, he said nothing. Well, almost nothing. He said that ISIS was not a “state” — a fact which implicitly negates the need for international authority. For operations conducted in Iraq, the U.S. will be operating with the consent of the new Iraqi government, so no sovereignty issues will be triggered. In Syria, the situation is more complicated. U.S. forces will be acting with the consent of the opposition there, though whether Assad will give his consent to operations in Syria seems unlikely. But perhaps the U.S. will rely exclusively on proxy forces in Syria. He was vague on this. There was no discussion of Security Council authorization, though he did discuss the need for a coalition to fight ISIS.

My view is that ISIS represents a far greater threat than al-Qaeda ever posed. ISIS currently controls a large swath of territory and they have even larger ambitions. With a radical ideology and the territory to implement it against a domestic population, ISIS could create a home base for international jihad. Combine those ideological commitments with foreign fighters with foreign passports, and you have a recipe for disaster. Beheading a couple of journalists was only the beginning. And western countries aren’t the only ones to fear. ISIS has shown particular contempt and anger towards fellow Muslims who reject their radical vision. So the need for a broad coalition to defeat ISIS, with western and Middle East partners, is clear. Whether the plan outlined today is enough, I don’t know. I sure hope it is. Otherwise we will be staring at the new face of violent jihadism for the next decade.

What I Did on My Summer Vacation: Russian Edition

by Jens David Ohlin

Russia has skillfully managed to devote military support to the separatists in Eastern Ukraine. Just how much support — and what kind of support — is unclear, since Russia formally denies that they are directly involved in the ongoing hostilities there. Ukrainian officials have insisted that they have specific proof that Russian troops and their equipment have not only crossed the border into Ukraine but have also engaged Ukrainian government troops. It is not unreasonable to speculate that, but-for the Russian assistance, the conflict would have concluded long ago with a Ukrainian government victory over the rebels.

In the face of mounting evidence of Russian involvement, the rebels have claimed that Russian soldiers deployed in Ukraine are there voluntarily while on vacation. This is an obvious attempt to deny Russian liability, under basic rules of state responsibility, for the actions of the troops. The question is whether this argument holds any water.

First, it is unclear whether the statement is accurate. The world community does not have access to the W2s, or the Russian equivalent, for the soldiers — so if the rebel leaders are lying, the world would have no idea. I also find it hard to believe that Russian troops, or any government troops for that matter, would voluntarily place themselves in harms way for no compensation whatsoever.  More likely they are receiving cash payments covertly.

Second, even if the claim is true, and the Russian commanders have officially placed the soldiers on vacation (or furlough), there is the additional issue that they are no doubt using Russian government equipment, as opposed to their private “home” materials. While individual soldiers might own personaI firearms, I find it hard to believe that Russian troops own their own armored personnel carriers that they keep in their backyards for “vacation” purposes.

Third, and perhaps most importantly, it is unclear what the legal consequences of these “vacation deployments” are even if they are true. The standard is whether the troops are under the control (either effective control or overall control depending on which standard applies) of the Russian government. Employment and monetary payments are just one way of exercising control, as is operational control. However, suppose Russia provides the rebels with 50,000 troops who are “volunteering” to fight with the rebels? Would this automatically entail that Russia has no control over the troops? It seems to me that control requires a richer formulation, one that is sensitive to the varying ways that states can engage in covert assistance across borders. Although states may attempt to deny responsibility for this assistance, this does not mean that international law should let them without suffering the consequences.

In Nicaragua, the ICJ concluded that the mere provision of financial or military assistance, standing on its own, is insufficient to generate state responsibility for the actions of the assisted troops (via direct imputation). This was (and is) a sensible precedent, because the basic contours of complicity requires that international law recognize the various ways that assistance can trigger responsibility. Even if Russia only organized and armed the troops, but did not directly pay them a salary, it would seem to me that this constitutes an illegal interference in Ukrainian domestic sovereignty (with regard to both political independence and territorial integrity), in violation of the UN Charter and customary international law (in much the same way as the ICJ concluded in Nicaragua).

Of course, all of this might be moot. It is possible that Russia is engaged in direct operational control over the rebels, with logistical coordination, air support, and satellite imagery, that unquestionably demonstrates their responsibility even under the effective control test. But at this point the facts are very much unknown.

Three Reasons Why Obama Will Not (and Should Not) Seek Congressional Okay for ISIL Strikes

by Peter Spiro

It looks like President Obama learned his lesson. Last summer he decided to seek Congress’s advance approval for a strike against Syria’s chemical weapons capabilities. Political support for the operation evaporated. Obama looked weak and waffly (the decision was taken on a dime after a 45-minute South Lawn stroll with chief of staff Denis McDonough, almost certainly not vetted through the legal chain of command). Even though the ISIS operation will probably be more significant than what he had in mind for Assad, he won’t be looking for a formal nod from Congress.

In the run-up to the decision (which will likely be announced in his speech Wednesday night) there emerged a nearly unanimous chorus of voices — scholars, lawmakers, commentators — arguing in favor of advance congressional authorization. Among law profs, those pressing the case included Jack Goldsmith, Harold Koh, Ilya Somin, Steve Vladeck and Jennifer Daskal. Tim Kaine and Ted Cruz agreed on this one. The Atlantic’s Conor Freidersdorf had this stinging column pressing for a congressional mandate.

Why Obama is better served bucking this consensus:

1. Authorization would not have been easy to get. Most sane people agree that ISIS presents a threat that needs to be addressed. Prospective military action against the entity enjoys high levels of US popular support.

But that doesn’t mean Congress would have handed Obama the authorization he sought, even on a narrowly tailored basis. Remember, Congress is totally dysfunctional. GOP members facing reelection in November may be loath to do anything that supports the President. The tradition of politics stopping at the water’s edge seems quaint.

If an authorization measure were voted down, Obama would have boxed himself into a corner. Either he would have backed down, with US (and global) security taking the hit. Or he could have persisted with the action on a lonely and legally shaky basis. Although he would surely have framed a request for congressional authorization as constitutionally discretionary (as he did with Syria), that line would have rung hollow in the wake of rejection. This is a context in which actions speak louder than words. The legitimacy of any military action following a failed authorization would have been undermined at home.

And what would Congress’s approval have won him, assuming he got it? Politically, not much. Congress’s favorability ratings are at all-time lows (it is less popular than the U.S. going communist). Anything that can get through Congress now must by definition be so popular that Congress’s approval is itself like a single candle on a crowded cake. That small reward wasn’t worth the significant downside risk of a rebuffed request.

2. Seeking congressional okay would have set a terrible precedent for the future. Leaving aside direct attacks on the United States, there won’t be an easier case for military strikes than against the Islamic State, whose brutality has provoked international revulsion. Most future cases will involve adversaries not nearly so scary. The rise of Rand Paul Republicanism will raise the bar for authorizing any military action, however well advised. Imagine a close case arising during a GOP primary season. If President Obama had asked today, his successors would have had to ask tomorrow.

In that respect, he’s lucky that the Syria CW episode mooted out before it developed any further (it almost certainly would have gone badly). As an incomplete episode it didn’t set down a constitutional precedent. It’s a lot easier to walk back from Rose Garden statement than from a closed constitutional case-file.

3. Obama has ample constitutional authority for not securing congressional authorization. There has been a lot of hair splitting on constitutional war powers lately, the unfortunate byproduct perhaps of the AUMF experience. But the basic dividing line (as nicely argued in the OLC Libya opinion) is between real wars (requiring advance congressional authorization) and everything else (not requiring it). Whatever the ISIL operation ends up being, it is unlikely to be of the former description, involving high risk of significant casualties, huge appropriations that Congress can’t refuse, and escalation. It won’t be “war” for constitutional purposes. I don’t need Article II for this. I’ll take 200+ years of history.

There will be inevitable carping about the refusal to seek the congressional okay here. But that has always been the case, even with respect to quick and painless military action. It will be a little louder than usual this time around. There are the contingencies of this particular operation, which is likely to be complicated and drawn out, with no immediate prospects of erasing the problem. There may also be a broader shift against using force in the wake of Iraq and Afghanistan. But Obama will weather the denunciations, just as have all of his predecessors, validating the constitutional order in the process.

Ted Cruz Moves to Strip Citizenship of ISIL Fighters

by Peter Spiro

As predicted last week, it was only a matter of time before someone on the Hill dropped a bill to terminate the citizenship of Americans who are fighting with the Islamic State. Ted Cruz has taken the plunge, so it will probably get a little more attention than if some backbencher had adopted the cause. Press statement here; text of the bill here.

Either Cruz’s staff hasn’t done its homework here or this is counter-terror showboating pure and simple. If enacted thIs bill would have effect in approximately zero cases. The law amends the loss of nationality provision of the Immigration and Nationality Act to add fighting with or giving material support to listed terrorist organization as a ground for expatriation.

The problem: as per the Supreme Court, any expatriating conduct must be undertaken with the specific intent to relinquish U.S. citizenship. To strip an ISIL fighter under this amendment, the government would have to show not just that someone had fought with ISIL, but that he consciously intended to give up his citizenship by so doing. That would be impossible to show in the ordinary case. Al-Qaeda operative Adam Gadahn is the only notable case from the post-9/11 era in which it might work: in a jihadist youTube, he shredded his U.S. passport.

The Cruz bill is a repeat of Joe Lieberman’s stillborn effort in 2010 (name change: Lieberman’s “Terrorist Expatriation Act” is now Cruz’s “Expatriate Terrorist Act”), unpacked here. You can find an elaborated constitutional analysis from a recent Fordham Law Review symposium here.

We Still Don’t Know Where the CIA’s Public Authority Comes From

by Kevin Jon Heller

In late June, I wrote a long post responding to the notorious memorandum in which the OLC attempted to provide a legal justification for killing Anwar al-Awlaki. I argued that although the AUMF likely provides the US military with a public-authority justification for violating 18 USC 1119, the foreign-murder statute, it does not and cannot provide the CIA with that justification. In defence of that conclusion, I cited the title of the AUMF and the text of the statute, both of which make inordinately clear that the AUMF applies only to the military (emphasis mine):

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

[snip]

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the “Authorization for Use of Military Force.”

SECTION 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL. — That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

In response to a FOIA request by Vice News‘ inestimable Jason Leopold, who has led the fight for transparency regarding the use of lethal force, the US government has now released a 25 May 2011 White Paper that specifically argues the CIA is also entitled to a public-authority justification. Unfortunately, the White Paper fails to justify its conclusion — at least in its unredacted portions. Like the earlier memorandum, the White Paper is largely devoted to establishing that the public-authority justification applies to the foreign-murder statute and that members of the US military would be entitled to the justification. (Two conclusions I agree with.) It then simply says this (pp. 14-15):

Given the assessment that an analogous operation carried out pursuant to the AUMF would fall within the scope of the public-authority justification, there is no reason to reach a different conclusion for a CIA operation.

That’s it. That’s the sum total of the unredacted argument. But there is a reason to reach a different conclusion “for a CIA operation” — as pointed out above, the AUMF does not apply to the CIA. Which means that the source of the public-authority justification must lie elsewhere.

Now let me be clear: I am not saying the CIA cannot be entitled to the public-authority justification. I am simply pointing out that the AUMF does not provide the CIA with the necessary authority. Perhaps there is another source, such as Title 50 of the US Code, as my co-blogger Deb Pearlstein has suggested. Indeed, the redaction on page 16 of the new White Paper may well refer to that other source of authority, given that five or six lines of redacted text follow this statement:

Thus, just as Congress would not have intended section 1119 to bar a military attack on the sort of individual described above, neither would it have intended the provision to prohibit an attack on the same target, in the same authorized conflict and in similar compliance with the laws of war, carried out by the CIA in accord with _____.

I don’t understand why the OLC would need to redact a reference to Title 50 (or to some other source of authority). The legal source of the CIA’s authorization to kill Americans overseas — if one exists — hardly seems like a state secret. Until the government reveals that source, however, we remain entitled to conclude that the CIA drone-strike that killed Anwar al-Awlaki violated 18 USC 1119.

Rebels Holding Peacekeepers Demand UN lift Sanctions

by Kristen Boon

Last week, 45 Fijian peacekeepers deployed as part of a 1,200-member U.N. force monitoring a buffer zone between Syria and Israel were captured and are being held by Nusra Front rebels.   (Hat tip to Theodore Christakis here at the ESIL conference in Vienna for raising the issue yesterday in the ESIL / SHARES Peace and Security Interest Group Seminar.)

Rebels have made three demands for their release, according to a WSJ article published yesterday:

1. They want to be dropped from the list of al Qaeda-linked groups under U.N. sanctions;

2. They are demanding monetary compensation for the deaths of the insurgents who were killed in recent fighting along the Syrian-Israeli border; and

3. They want humanitarian aid for a rebel-controlled area near the Syrian capital Damascus that is surrounded by government troops.

The Security Council responded with a press release yesterday, read by Amb. Samantha Power, in which it “condemned in the strongest terms the detention of 45 Fijian peacekeepers by a Security Council-designated terrorist organization.  They reiterated their call for the peacekeepers’ immediate and unconditional release.  There can never be any justification for attacks on or the detention of UN peacekeepers.”

The demand for delisting is particularly striking. On the one hand, it suggests that targeted sanctions are relevant to this group, whether for practical or symbolic reasons.  On the other hand, there continues to be debate about the Security Council’s legal basis for placing demands on or regulating non-state actors.

In the Kosovo Advisory Opinion, the ICJ indicated the Security Council could create obligations for non-state actors, but the conferral of rights, obligations, and status on subjects of law without their participation in the international law making process continues to be controversial as the ILA’s 2014 report on Non-State Actors explores.  Both the Council’s imposition of sanctions and its demand for the peacekeepers’ immediate and unconditional release in the press statement, (and here it is relevant that press statements are considered decisions of the Council) raise interesting and important issues in international law.

Jens Ohlin Joining Opinio Juris

by Kevin Jon Heller

It is my great pleasure to announce that Jens Ohlin, Professor of Law at Cornell, is joining Opinio Juris as its newest masthead member. (Astute readers will have noticed he was added there yesterday!) I doubt Jens needs much introduction, but here is a snippet from his Cornell bio anyway:

Professor Ohlin specializes in international law and all aspects of criminal law, including domestic, comparative, and international criminal law. His latest book, The Assault on International Law, forthcoming from Oxford University Press, challenges the prevailing American hostility towards international law, and offers a novel theory of rationality to explain why nations should comply with international law. 

Ohlin’s research also focuses on the laws of war, in particular the impact of new technology on the regulation of warfare, including remotely piloted drones and the strategy of targeted killings, cyber-warfare, and the role of non-state actors in armed conflicts. His books in this area include Targeted Killings: Law and Morality in an Asymmetrical World (Oxford University Press 2012, with A. Altman & C. Finkelstein); Cyber-War: Law & Ethics for Virtual Conflicts (Oxford University Press forthcoming, with C. Finkelstein & K. Govern); and Defending Humanity: When Force is Justified and Why (Oxford University Press 2008, with George Fletcher). 

We are very lucky to have Jens joining us. In addition to being ridiculously prolific, he is also ridiculously good; I think there is little question that Jens is one of the most important IHL and ICL scholars of his generation. I never fail to learn from his work, even — and perhaps especially — when I disagree with it. I don’t think I’m alone in that; there are very few scholars in IHL and ICL who are so uniformly respected by both the left and the right.

I can’t wait to see what Jens chooses to write about at Opinio Juris. Please join all of us in welcoming him to the blog. And check out his new book!

Did Vladimir Putin Call for the Statehood of Eastern Ukraine?

by Chris Borgen

As the military situation in eastern Ukraine become more violent with the incursion of Russian troops, Vladimir Putin has called for talks to determine the statehood of eastern Ukraine. The Interpreter, a website that translates and analyzes Russian media reports, states that in an interview on Russian television Putin said:

We must immediately get down to a substantial, substantive negotiations, and not on technical questions, but on the questions of the political organization of society and statehood in the south-east of Ukraine with the purpose of unconditional provision of the lawful interests of people who live there.

[Translation by website The Interpreter.]

In its analysis of this somewhat cryptic quote, the Interpreter posits:

It is not clear how Putin envisions the “Novorossiya” entity, but given a presentation by his aide Sergei Glazyev yesterday at a conference in Yalta attended by Russian-backed separatists and European far-right party figures, there is a notion to make the amalgamated “Donetsk People’s Republic” and “Lugansk People’s Republic” a member of the Customs Union of which Russia, Belarus, and Kazakhstan are members.

For more on the Eurasian Customs Union, see this previous post.

As for the rhetoric of an independent Novorossiya, described in Foreign Policy as  the rebirth of a forgotton geopolitical term, Anne Applebaum wrote the following this past week in a grim article on Slate:

In the past few days, Russian troops bearing the flag of a previously unknown country, Novorossiya, have marched across the border of southeastern Ukraine. The Russian Academy of Sciences recently announced it will publish a history of Novorossiya this autumn, presumably tracing its origins back to Catherine the Great. Various maps of Novorossiya are said to be circulating in Moscow. Some include Kharkov and Dnipropetrovsk, cities that are still hundreds of miles away from the fighting. Some place Novorossiya along the coast, so that it connects Russia to Crimea and eventually to Transnistria, the Russian-occupied province of Moldova. Even if it starts out as an unrecognized rump state—Abkhazia and South Ossetia, “states” that Russia carved out of Georgia, are the models here—Novorossiya can grow larger over time.

Applebaum notes that for Novorossiya to move from Putin’s rhetoric to political reality will require more than the actions of the Russian army.  “Novorossiya will not be stable as long as it is inhabited by Ukrainians who want it to stay Ukrainian,” she explains.  Moreover, “Novorossiya will also be hard to sustain if it has opponents in the West.” Further sanctions will likely be the centerpiece of the EU and U.S. response.

But while some would say “international law is useless without sanction,” in this case I believe that economic sanctions are not enough without international legal argument.  For the moment, Russia’s strategy seems to be an amalgamation of stealth invasion and quasi-legal rhetoric. The “stealth”  part of the invasion is to maintain a fig-leaf of deniability and to make the uprising in eastern Ukraine seem homegrown as opposed to Russian-led. This strategy of stealth interlocks with Russia’s rhetoric, a quasi-legal/ nationalist amalgamation that attempts to persuade those who can be persuaded and befuddle those who cannot.

However, we are at an inflection point where an important new argument (the apocryphal “once and future Novorissya” argument, in this case) is being sent up like a trial balloon. Perhaps a more accurate metaphor is the idiom: “send it up the flagpole and see who salutes.” Putin and his advisers are sending the flag of Novorissya, figuratively and literally, up the flagpole.

If the EU and U.S. do not want another South Ossetia or Transnistria, then they will have to actively engage Russia’s arguments over what is “right.”  Consider this statement by Putin this week, explaining why the events in Eastern Ukraine confirm that Russia was correct in its actions in Crimea:

Now, I think, it is clear to everyone – when we look at the events in Donbass, Lugansk and Odessa – it is now clear to everyone what would have happened to Crimea, if we had not taken corresponding measures to ensure that people could freely express their will. We did not annex it, we did not seize it, we gave people the opportunity to express themselves and make a decision and we treated that decision with respect.

I feel we protected them.

If the illegality of Russia’s actions is not stressed, if the denial of Ukraine‘s right of self-determination is not emphasized, then the only thing many will hear is the rhetoric of those trying to slice off successive pieces of Ukraine. That rhetoric, unanswered, can reinforce the beliefs of those who want to dismember Ukraine. For others, it may make it seem as if maybe Russia “has a point” and muddy the waters. In both instances, effective sanctions could be perceived as just another example of might overcoming right.  And, rather than resolving the situation, the seeds for further conflict would be planted.

While effective sanctions enforce norms, clear norms strengthen sanctions.

 

 

Hostages and Prisoners

by Deborah Pearlstein

I’ve been impressed by the number of questions I’ve fielded in the past few weeks from students, colleagues and media alike about whether the United States can and/or should pay ransoms or exchange prisoners for Americans held by various groups overseas. (I discuss the issue in short clips here and here.) Why did we exchange prisoners to rescue Bowe Bergdahl, but refused to pay ransom for James Foley? Is it illegal to pay ransom to these groups, or just a bad idea? Is it really a bad idea?

In the interest of consolidating some answers on a topic that raises a complex cluster of issues, I thought it worth summarizing some of them here – first on the topic of ransom for hostages taken by terrorist groups, then on the topic of prisoner exchanges more broadly. The upshot: It may well be the right policy decision in an individual case for a government not to pay ransom to a terrorist group, but the broader, categorical statement that “we don’t negotiate with terrorists” is neither historically accurate nor strategically wise. (more…)

Will the U.S. Move to Citizenship-Strip ISIS Fighters?

by Peter Spiro

It’s only a matter of time before we start seeing proposals to take away the citizenship of Americans fighting for ISIS/ISIL forces in Syria and Iraq. They have drawn renewed attention in the wake of James Foley’s beheading (apparently by a British citizen) and the death, reported at length today in the NYT, of American Douglas McCain in Syria. Several hundred individuals with Western citizenships are thought to be fighting with the extreme Sunni group.

A proposal to expatriate terrorists associated with entities hostile to the United States went nowhere in 2010 when Joe Lieberman’s Terrorist Expatriation Act failed to garner so much as a committee hearing. A similar initiative might have more legs today.

The Lieberman effort had the Times Square bombing as a hook, but that just looked like ordinary crime. (There was also the problem of Joe Lieberman.) The face of the ISIL fighters is way more scary and foreign. They make bin Laden look like Jesse James — criminal, but not unrecognizable. (Bin Laden had a brother who went to Harvard Law School.) Al-Qaeda has a lot of blood on its hands, but it doesn’t go around cutting peoples heads off and tweeting the results.

The U.S. would be following the UK and Canada’s lead, both of which have adopted expatriation measures aimed at citizens fighting in Syria. That gives U.S. legislators some cover on the international human rights front. Even human-rights-pure Norway is looking to follow suit.

That doesn’t mean terrorist expatriation would make any more sense now than it did in 2010. Any punitive intent would be clearly unconstitutional under the Supreme Court’s 1958 decision in Trop v. Dulles. The law would pass the Court’s test only if the conduct was taken to reflect an individual’s intent to relinquish citizenship. In other words, the law would have to work from the calculation that fighting for ISIS evidences an individual’s desire to expatriate. (For the full constitutional analysis, see this.)

Beyond the constitutional niceties, it’s not clear what expatriation would accomplish. True, ISIS may look to weaponize adherents with premium Western passports and visa-free mobility. But you couldn’t take away someone’s citizenship for being associated with ISIS before you knew that he was associated with ISIS. Once a citizen is identified as an ISIS fighter, you can bet he gets put on a watch list. That minimizes the threat. There’s no case in which citizenship-stripping adds much to the counter-terror toolbox.

That may not stop legislators from adding expatriation to their rallying calls. Chalk it up to counter-terror showboating. But it won’t be any more than that.

Can the U.S. President Enter into a Legally Binding Climate Change Agreement Without Congress?

by Julian Ku

The New York Times is running a big report today on the U.S. plan to sign a “sweeping” climate change agreement without having to go to Congress for approval or ratification.  Instead of a typical treaty requiring ratification by the Senate, the U.S. has a different more creative strategy.

American negotiators are instead homing in on a hybrid agreement — a proposal to blend legally binding conditions from an existing 1992 treaty with new voluntary pledges. The mix would create a deal that would update the treaty, and thus, negotiators say, not require a new vote of ratification.

Countries would be legally required to enact domestic climate change policies — but would voluntarily pledge to specific levels of emissions cuts and to channel money to poor countries to help them adapt to climate change. Countries might then be legally obligated to report their progress toward meeting those pledges at meetings held to identify those nations that did not meet their cuts.

Jack Goldsmith is already out with a typically smart analysis of this approach, and he concludes the new agreement is intended to sound like a big deal, but will be unlikely to commit the U.S. to do anything meaningful.  I think that is probably right, although I can’t really tell based on the incomplete details in this NYT article.  I think there might be a little bit of domestic legal effect, and may also create an important precedent on what the President can do to bind the US on the international level.

Surely, the President can sign a political agreement that pledges voluntary cuts and to channel money to poorer countries. Such an agreement would have no domestic legal effect until Congress acted to implement the legislation.   But can the President bind the U.S. under international law, even if it has no domestic legal effect?

The President can, in limited circumstances, bind the US under international law via a sole executive agreement.  It has done so especially in the areas of post-conflict settlements such as the famous Algiers Accords that released US hostages and also sent seized Iranian and US assets to an international arbitration tribunal.  US courts have given those agreements limited domestic effect.  But the line between what the President can do via a sole executive agreement and what he must do via a treaty is not completely clear (although there is a line!).  Maybe the President is claiming some delegated authority from the original 1992 Framework Convention, which might bolster his ability to bind the U.S. internationally. I don’t see any obvious basis in that treaty for this delegation, but I suppose experts on the Framework Convention might come up with something.

So I think the President might be able to sign the US up to a binding international agreement on climate change, but it would be pretty unprecedented and its legal effect uncertain.  Such an agreement would be unlikely to have domestic legal effect on its own, but the President could cite the agreement as the basis for executive orders he is already implementing on climate change.  I don’t think it would carry the policy much farther than he is already doing under creative interpretations of the Clean Air Act, but it might provide just a little bit more support for his domestic orders.

I think it will be important to look at the details of the proposed agreement, and to ask the US administration to explain its legal authority for the new agreement.  Will it be the 1992 Framework Convention?  Or is it going to be just the President’s general Article II executive power?  If the latter, this may be an important precedent for future sole executive agreements under the US Constitution.  In any event, President Obama is certainly exploring the outer limits of his Article II powers.