As Bill Schabas noted in his recent post, the Comoros referral raises interesting questions concerning the Pre-Trial Chamber’s power to review a decision by the OTP not to open a full investigation into a situation. Most people who don’t keep a copy of the Rome Statute in their back pocket probably believe that the OTP has complete discretion concerning such declinations. In fact, that is not the case. Here, in relevant part, is Art. 53 of the Rome Statute (emphasis mine):

Article 53Initiation of an investigation1.         The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:

(a)     The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

(b)     The case is or would be admissible under article 17; and

(c)     Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber.

…

3.         (a)     At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision.

(b)     In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.

It is clear that Comoros would have the right under Art. 53(3)(a) to ask the Pre-Trial Chamber to review a decision by the OTP not to open a full investigation into the attack on the flotilla. And that would be true regardless of the OTP’s rationale for the declination: (1) lack of evidence that the attack involved a crime within the ICC’s jurisdiction; (2) admissibility concerns — which would turn on whether crimes allegedly committed during the attack were adequately grave and, if so, whether Israel was willing and able to investigate and prosecute those crimes itself; or (3)  the interests of justice.

But here is where things get interesting. If Comoros asked the PTC to review a decision by the OTP not to investigate the attack on the flotilla, thereby triggering Art. 53(3)(a), the PTC would have only one remedy if it disagreed with the OTP’s assessment of the merits of the referral — to “request the Prosecutor to reconsider that decision.” It could not order the OTP to open a full investigation into the attack. So if the OTP reconsidered its decision and again concluded that a full investigation was not warranted, that would be the end of the story.

Art. 53(3)(b), by contrast, would appear to put the PTC in a much more powerful position…

In my previous post, I expressed my skepticism that the OTP will open a formal investigation into the situation — loosely defined — involving Israel’s attack on the MV Mavi Marmara. In this post, I want to raise two issues concerning Comoros’ referral that I find particularly troubling.

First, why is Comoros being represented by Turkish lawyers, the Elmadag Law Firm Istanbul? There is nothing wrong with a state outsourcing its legal work, of course, and most of the victims of the attack on the MV Mavi Marmara were Turkish. But if the referral is really being driven by Comoros, you’d think the government would be relying on lawyers in its Ministry of Justice — or at least on a Comorian law firm. Instead, the Comoros hired a foreign law firm that has already unsuccessfully requested, on behalf of victims and a Turkish NGO, the OTP to investigate the attack on the flotilla. (See para. 9 of the referral.) That suggests, in my view, that this new request is a “state referral” in name only — a smart litigation strategy, but a curious one.

Second, why now? The attack on the flotilla took place nearly three years ago, yet Comoros is only now referring the situation to the Court. The timing seems particularly curious given that Israel and Turkey appear to be making genuine diplomatic progress in resolving the Mavi Marmara crisis. Just a few weeks ago, Haaretz reported that Israel has agreed to pay “as much as tens of millions of dollars” in compensation to the Turkish citizens wounded and killed during the attack. This latest effort to get the ICC to investigate will not only fail, it could well harm negotiations between Israel and Turkey — especially as one of the points that apparently remains to be resolved is whether Turkey is willing to immunize the IDF soldiers involved in the attack. Indeed, a cynic might suggest that this new referral is designed to undermine those negotiations.

This referral clearly puts Fatou Bensouda in a difficult situation. My hope is that she will conclude her preliminary examination quickly and will release a detailed explain of why (I predict) the OTP is not opening a formal investigation into the attack on the flotilla. Doing so would provide Bensouda with an opportunity to affirm the Court’s potential jurisdiction over the attack — Article 12(2) means what it says about a ship qualifying as a state’s territory, although I assume the drafters of the article assumed that the OTP would investigate crimes committed at sea only as part of a larger situation — while explaining why it would not be appropriate for the OTP to investigate only one small aspect, and only one side, of the Israel-Palestine conflict.

UPDATE: Make sure to read excellent posts on the referral by Bill Schabas and Dapo Akande.

This is very interesting. The Union of the Comoros, a state party to the Rome Statute since 2002, has formally referred Israel’s attack on the flotilla that included the MV Mavi Marmara to the ICC. The question I want to address in this post is whether the Court has jurisdiction over the flotilla attack. I think it’s clear that it does — although there is at least one important wrinkle in the analysis. But I also think it’s exceedingly unlikely the OPT will open a formal investigation into the attack.

In terms of jurisdiction, the critical provision in the Rome Statute is Art. 12, “Preconditions to Jurisdiction.” Article 12(2) provides as follows (emphasis mine):

In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

(a)     The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

The bolded text is critical. The Court has jurisdiction over an international crime only if that crime was committed by a national of a state party to the Rome Statute or on the territory of a state party. Art. 12(a) makes clear, however, that a vessel registered to a state party qualifies as the territory of that state. According to the referral, the MV Mavi Marmara was registered to Comoros at the time of the attack, 31 May 2010. (Comoros provides documentation of registration in an appendix to its referral that is not available on the ICC website.) For purposes of jurisdiction, therefore, the MV Mavi Marmara does indeed qualify as Comoros territory. And that means Art. 12 is satisfied.

The wrinkle in the analysis is whether the attack on the MV Mavi Marmara qualifies as a “situation.” States are permitted to refer situations to the Court, not specific crimes. Here is Art. 14(1):

A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.

Is Comoros referring a situation to the Court? All of the situations currently being investigated by the OTP — Kenya, Libya, Cote D’Ivoire, etc. — are much broader than the situation being referred by Comoros. That said, the referral is not limited solely to the attack on the MV Mavi Marmara. As Comoros’ supporting documentation notes, one other ship in the attacked flotilla, the MV Sofia, was registered to a state party — Greece. Moreover, the referral suggests that Israel’s June 6 attack on the MV Rachel Corrie, which was registered to Cambodia, a state party, should also be included in the overall situation. (The referral tries to link the attack on the flotilla to the situation in Gaza, suggesting that the attack would be part of any situation referred to the Court by Palestine. That’s clever but irrelevant, at least at this point, because Palestine has not yet ratified the Rome Statute.)

In terms of the Rome Statute’s legal requirements, I think that Comoros has indeed referred a situation to the Court. Article 14(1) speaks of situations in which “one or more crimes… appear to have been committed,” suggesting that even one crime can, in the right circumstances, qualify as a situation. (An attack with a nuclear or chemical weapon, for example.) The limited scope of the situation being referred by Comoros, therefore, should not legally disqualify the referral.

In short, the ICC does indeed have jurisdiction over the attack on the flotilla (and the later attack on the MV Rachel Corrie), so the OTP would be well within its rights to open a formal investigation into the attack. The real question is whether the OTP will open an investigation. A full answer is beyond the scope of this post, but I think it’s exceedingly unlikely. Although the limited scope of the referred situation is not legally disqualifying, I think it significantly reduces the situation’s overall gravity. To begin with, it is not clear whether any international crimes were committed on the MV Sofia or the MV Rachel Corrie (readers should feel free to weigh in), so the referred “situation” may, in practice, be limited to crimes allegedly committed on the MV Mavi Marmara. I don’t want to minimize the tragedy of nine civilian deaths, and I am no fan of determining gravity by simply counting victims, but I think the OTP would have a difficult time justifying a decision to prioritize the flotilla attack over many of the other situations it is considering, such as Colombia, Georgia, or Afghanistan.

Moreover, and more fundamentally, it does not seem sensible for the OTP to investigate one isolated component of the much larger conflict between Israel and Palestine. If the OTP ever does investigate that conflict — which, as I’ve discussed before, I don’t think it should — it needs to address all of the potential crimes, both Israeli and Palestinian. And that, I think, is the fatal flaw in the Comoros referral: it is essentially asking the OTP to investigate crimes committed by only one side of the conflict, Israel. Even if Israel’s account of the attack on the flotilla is correct and the IDF killed the civilians in self-defense, the ICC would still not have jurisdiction over the civilians’ actions — it is not a war crime to attack a soldier (though it could, of course, be a domestic crime).

Finally, a plea to the media: please do not overstate the importance of the OTP’s “decision” to open a preliminary examination into the attack on the flotilla. As the ICC’s press release notes, the OTP is required to conduct such an examination into every state referral, regardless of merit. I have no doubt that the OTP takes state referrals more seriously than referrals from individuals and human-rights groups. But that does not mean, nor does it even suggest, that the OTP will decide to open a formal investigation into the flotilla attack. Indeed, for all the reasons mentioned in this post, I think that is exceedingly unlikely.

Baher Azmy, the legal director of the Center for Constitutional Rights (CCR), has flagged a very interesting ATS case that is due to be re-argued in light of the Supreme Court’s recent — and much discussed here at Opinio Juris — decision in Kiobel. Here is CCR’s description of the case, Al Shimari v. CACI:

Al Shimari  v. CACI was originally brought against L-3 Services Incorporated (formerly Titan Corporation), CACI International Inc., and Timothy Dugan, a former employee of CACI.  CACI and L-3 Services were the U.S. government contractors responsible for interrogation and translation services, respectively, at Abu Ghraib prison and other facilities in Iraq. L-3 Services and Timothy Dugan have since been dismissed as Defendants in the case. The complaint alleges that CACI directed and participated in illegal conduct, including torture, at the Abu Ghraib prison in Iraq where it was hired by the U.S. to provide interrogation services.   The four Plaintiffs had all been held at the “hard site” in Abu Ghraib prison.

The suit, brought under the Alien Tort Statute (ATS) and federal question jurisdiction, brings claims arising from violations of U.S. and international law including torture; cruel, inhuman, or degrading treatment; war crimes; assault and battery; sexual assault and battery; intentional infliction of emotional distress; negligent hiring and supervision; and negligent infliction of emotional distress. There are also civil conspiracy and aiding and abetting counts attached to most of these charges.  Through this action, Plaintiffs seek compensatory and punitive damages.

Among the heinous acts to which the four Plaintiffs were subjected at the hands of the Defendant and certain government co-conspirators were: electric shocks; repeated brutal beatings; sleep deprivation; sensory deprivation; forced nudity; stress positions; sexual assault; mock executions; humiliation; hooding; isolated detention; and prolonged hanging from the limbs.

All of the Plaintiffs are innocent Iraqis who were ultimately released without ever being charged with a crime. They all continue to suffer from physical and mental injuries caused by the torture and other abuse.

CCR makes a strong argument in the relevant brief that Al Shimari is precisely the rare ATS lawsuit that can survive Kiobel. First, CCR argues that Kiobel‘s presumption against extraterritorial application of the ATS should not even apply in Al Shimari, because the conduct in question occurred in Iraq during the US occupation, a period in which (quoting Rasul) the US had “complete jurisdiction and control” over Abu Ghraib (recall that the Coalition Provisional Authority had “all executive, legislative, and judicial authority” over Iraq at this time), making it effectively US territory. The fact that the US was functioning as the sovereign in Iraq at the time of the relevant conduct, CCR also points out, means that allowing the lawsuit to proceed would be unlikely to result in “international discord” between the US and Iraq.

Second, CCR argues that the relevant conduct does indeed “touch and concern” the US “with sufficient force to displace the presumption against extraterritorial application.” It notes that CACI is a US corporation headquartered in the US; that CACI’s immunity from Iraqi legal process made it subject to US law; and that the conduct in question was directed from the US. It also notes that the US’s control over Abu Ghraib is — or should be — relevant to the “touch and concern” analysis.

Third, and finally, CCR claims that ATS lawsuits involving war crimes and torture should always be deemed to satisfy Kiobel, especially where — as in Al Shimari — the perpetrators of those crimes are present in the US. It argues that the potential for “international discord” is minor in such lawsuits, because war crimes and torture are types of conduct that all states are obligated to prevent and punish.

I am skeptical that CCR’s third argument will convince many federal courts post-Kiobel. Its first and second arguments, however, seem very compelling. I hope our resident and extraterritorial experts on the ATS will weigh in.

Rep. Mac Thornberry (R-Texas), member of the US House of Representatives Armed Services Committee, plans to introduce a bill that would increase Congressional oversight over kill-capture operations conducted outside of Afghanistan by the US military.  Bobby Chesney discusses the proposed legislation over at Lawfare, and gives a section by section commentary.  Whether this is an important step or not depends on one’s starting point, of course; I agree with Bobby that it is a big deal and a welcome step – though if one’s view is that all these operations are unlawful, or that  they require judicial oversight, or something else, then you won’t be much moved.

Seen within the framework of US law and oversight of overseas use of force operations, however, this is an important step.  A couple of observations; see Bobby’s post for a detailed discussion.  First, this legislation is with respect to operations conducted by the US military; it does not cover CIA activities.  Second, it covers US military operations with respect to the lines of oversight running back to the Armed Services committees; it does not alter existing oversight processes of Congressional intelligence committees governing covert action as defined in US Code Title 50, but extends and increases oversight over military operations.  These limitations run to several different things.

Counterintuitive as many might find it, the CIA is subject to far greater oversight, and at a far higher level of government, in its conduct of Title 50 covert activities than the US military is in its conduct of armed operations under Title 10.  There are good reasons why the military is not subject to direct oversight in essentially tactical decision-making in its traditional military activities once a decision has been made to commit to the use of force.  These decisions have long been understood to be within the discretion and responsibility of commanders who have the expertise to carry them out.  Oversight through the Armed Services committees is robust, including its closed sessions, but is not considered the same as that which Title 50 requires for covert activities.  However, the expansion of the US military into clandestine activities – which might or might not meet the legal definition of “covert” under Title 50 and so trigger those oversight functions – has raised new questions as to whether Armed Services committees oversight, traditionally conceived for conventional conflicts, keeps Congress sufficiently informed and permits sufficiently timely oversight in the case of activities carried by JSOC. (more…)

This according to the Commission of Inquiry on Syria, which has considerable investigative ability. Reuters:

(Reuters) – U.N. human rights investigators have gathered testimony from casualties of Syria’s civil war and medical staff indicating that rebel forces have used the nerve agent sarin, one of the lead investigators said on Sunday.

The United Nations independent commission of inquiry on Syria has not yet seen evidence of government forces having used chemical weapons, which are banned under international law, said commission member Carla Del Ponte.

“Our investigators have been in neighboring countries interviewing victims, doctors and field hospitals and, according to their report of last week which I have seen, there are strong, concrete suspicions but not yet incontrovertible proof of the use of sarin gas, from the way the victims were treated,” Del Ponte said in an interview with Swiss-Italian television.

“This was use on the part of the opposition, the rebels, not by the government authorities,” she added, speaking in Italian.

Recent news reports indicate that the Obama administration has been rethinking its opposition to arming the Syrian rebels. The Commission’s revelations, if true, not only complicate that idea but also deprive those who (in my view misguidedly) want to invoke the responsibility to protect to justify military intervention in Syria of one of their most potent rhetorical weapons. It’s easy to justify intervening in a civil war when one side is “good” and the other is “bad.” The situation is much more complicated, however, when a civil war involves two bad sides, even if one side — here, clearly the Syrian government — is worse than the other.

PS. As Ty McCormick points out at FP.com, the Commission’s findings would seem to validate Obama’s unwillingness to conclude — as demanded by the British, French, and Israelis — that the Syrian government has been responsible for using chemical weapons.

Peter beat me to the punch in commenting on Samuel Moyn’s interesting take on the ATS and Kiobel in Foreign Affairs, but I’m going to add a somewhat different point from Peter’s about what the body of ATS law has meant over the past few decades. I didn’t intervene in the earlier discussion about Kiobel because that discussion seemed to me properly focused mostly on the internal legal aspects of the decision – everything from jurisdiction to state courts, and much else besides.  I want to raise something external to Kiobel and the ATS as “law” – the distinction between international law and what (in various postings here and there) I’ve referred to as the “law of the hegemon.”

One way of looking at the ATS, including the body of cases built up over the years, is that it is “international law.”  Of course that’s not literally true; it is a domestic statute that refers to international law as the basis of some form of liability; violations of treaties or the law of nations.  But in a broader sense – the sense in which its supporters have long seen it – the ATS offers a domestic law vehicle by which to work out, interpret, express and, perhaps most important, make effective the requirements of international law.

This is surely the sense that, for example, Judge Jack Weinstein had when he opened the ATS hearing in the Agent Orange case ten years ago – this court sits, he said, in some fashion as an international court.  Sitting in the courtroom, it was entirely plain that he both took seriously and took real pleasure in seeing this District Court as sitting in judgment on the same types of crimes as raised at Nuremberg. There are several practical problems for this broader view, of course – how to figure out the relationship between the domestic law piece of the statute and the international law piece, for one.

Another, however, is that if this is supposed to be the working out in some broad sense of “international law” in American courts and using the tools available to American law, how does one keep the link between international law and its sources, processes, standards of interpretation, etc., as they exist in the international arena – and the application of this in an American law setting that has its own sources of authority, standards of interpretation, etc.  It’s fine to say that the ATS is the working out of international law in US courts, but international law is made in the international framework and evolves according to things that are different from and quite alien to the American legal system.  A telling example of the problem is found simply in the status of US court cases interpreting the ATS and, in the process, interpreting features of international law in ways that bear little relationship to how the international community might do it, now or in the future.  Yet in an American domestic law system, those distinctively US cases have greater authority than the international authorities.

One can say that this is precisely the problem of the American court system in dealing with human rights cases; it ought to recognize the international law sources and authorities as such, rather than privileging its own processes.  But this is hard, given that plaintiffs want simultaneously to reach to the special features of the US litigation system to achieve their aims; those special features of the US litigation system include many things, such as civil liability, corporate liability, etc., that don’t obviously exist in the international system.  It isn’t likely that one can pick and choose in the most favorable way – whether one is the plaintiff or the defendant – and if you go with the American system, you take its doctrine of sources, methods of interpretation, and much else besides, even as it applies to international law questions.  But those don’t match up very well with how the “international” actors in international law see those fundamental questions.  The questions are not substantive or procedural in the usual sense – they are, rather, the fundamental doctrines of authority, precedent, methods of interpretation.

A better way of seeing the law of the ATS, it has long seemed to me, is to treat it not as a particular state’s working out of international law in its courts, but rather a quite different category.  It seems to me best understood as the hegemonic power working out the law of the hegemon in ways that are intended to be somewhat parallel to “international law” on these issues.  There is a shared impulse rooted in morality, but what the hegemon does is within the terms of its own legal system.  It depends in large part upon the extent to which the hegemonic power is willing to allow the capital of its power to be exercised roughly to these ends – and the extent to which other important actors are willing to go along as a sort of rough way of getting international law actually enforced. (more…)

I want to take a moment to spruik (if you don’t know the word, look it up!) Jeffrey Kahn‘s new book, Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists, which has just been published by the University of Michigan Press. Here is the publisher’s description:

Today, when a single person can turn an airplane into a guided missile, no one objects to rigorous security before flying. But can the state simply declare some people too dangerous to travel, ever and anywhere? Does the Constitution protect a fundamental right to travel? Should the mode of travel (car, plane, or boat) or itinerary (domestic or international) make a constitutional difference? This book explores the legal and policy questions raised by government travel restrictions, from passports and rubber stamps to computerized terrorist watchlists.

In tracing the history and scope of U.S. travel regulations, Jeffrey Kahn begins with the fascinating story of Mrs. Ruth Shipley, a federal employee who almost single-handedly controlled access to passports during the Cold War. Kahn questions how far national security policies should go and whether the government should be able to declare some individuals simply too dangerous to travel. An expert on constitutional law, Kahn argues that U.S. citizens’ freedom to leave the country and return is a fundamental right, protected by the Constitution.

As an American who lives abroad but likes to see his family, I will avoid casting aspersions on terrorist watchlists. I’ll leave that to Jeff. Make sure to check out his book!

Two years ago, I wrote a long post analyzing the most serious charge in Bradley Manning’s court martial — aiding the enemy, a violation of Art. 104 of the Uniform Code of Military Justice (UCMJ) and 10 USC 904. I claimed in the post that someone like Bill Keller, the Executive Editor of the New York Times during the WikiLeaks era, could not face similar charges, because the UCMJ applies only to soldiers.

I was wrong.

Here is the text of Art. 104 (my emphasis):

“Any person who—

(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or

(2) without proper authority, knowingly harbors or protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct.”

The key here is “any person.” Such broad personal jurisdiction is very unusual among the UCMJ’s punitive articles; the only other ones that use it are Art. 83 (fraudulent enlistment in the armed forces) and Art. 106 (spying). All of the other punitive articles have more limited jurisdiction, applying only to “any person subject to this chapter” (such as solicitation, Art. 82) or “any member of the armed forces” (such as desertion, Art. 85). The difference is critical, because it means that a person does not have to be subject to the UCMJ to be subject to court-martial for aiding the enemy. Indeed, both Art. 104 and Art. 2 in the Manual for Courts Martial (MCM) are explicit on that point. Here is the MCM’s explanation of Art. 104 (emphasis added):

Scope of Article 104. This article denounces offenses by all persons whether or not otherwise subject to military law. Offenders may be tried by court-martial or by military commission.

And here is the MCM’s explanation of Art. 2 (emphasis added):

(1) Authority under the code. Article 2 lists classes of per­sons who are subject to the code. These include active duty personnel (Article 2(a)(1)); cadets, aviation cadets, and midship­ men (Article 2(a)(2)); certain retired personnel (Article 2(a)(4) and (5)); members of Reserve components not on active duty under some circumstances (Article 2(a)(3) and (6)); persons in the custody of the armed forces serving a sentence imposed by courtmartial (Article 2(a)(7)); and, under some circumstances, speci­fied categories of civilians (Article 2(a)(8), (9), (10), (11), and (12); see subsection (3) and (4) of this discussion). In addition, certain persons whose status as members of the armed forces or as persons otherwise subject to the code apparently has ended may, nevertheless, be amendable to trial by court-martial. See Article 3, 4, and 73. A person need not be subject to the code to be subject to trial by court-martial under Articles 83, 104, or 106.

There is no reason, then, why Bill Keller could not be court-martialed for aiding the enemy. And indeed, for all the reasons I discussed in my post two years ago, he is no less guilty of that crime than Bradley Manning. Here are the elements of aiding the enemy via communication:

(5) Communicating with the enemy.

(a) That the accused, without proper authority, communicated, corresponded, or held intercourse with the enemy, and;

(b) That the accused knew that the accused was communicating, corresponding, or holding intercourse with the enemy.

If Manning has aided the enemy, so has Bill Keller. The crux of the government’s argument is this (see Specification 1 on the charge sheet): (1) Manning gave classified documents to WikiLeaks; (2) Manning knew that WikiLeaks would publish the documents on the internet; (3) the “enemy” — basically al-Qaeda and its associated forces — had access to the documents on the internet; (4) Manning thus indirectly communicated with the enemy. That argument, however frightening, is unfortunately far from frivolous. The crime does not require any intention to communicate with the enemy, much less an intention to harm the United States; as the MCM commentary says,”the intent, content, and method of the communication, correspondence, or intercourse are immaterial.” Nor does the crime require proof that the enemy actually received the prohibited communication: “[t]he offense is complete the moment the communication, correspondence, or intercourse issues from the accused.”

The government’s argument obviously applies to Bill Keller no less than to Bradley Manning. Indeed, in one respect, the case against Keller is even stronger than the case against Manning. Manning “communicated with the enemy” indirectly: he gave the documents to WikiLeaks; he did not post them on the internet himself. Keller, by contrast, authorized the New York Times to post Manning’s documents on its website, where anyone — al-Qaeda included — could find it. His communication with the enemy was thus direct, not indirect.

To be clear, I am categorically opposed to prosecuting anyone, Bradley Manning or Bill Keller, for “aiding the enemy” in circumstances like these. It is impossible to overstate the chilling effect the government’s argument — that causing intelligence to be posted on the internet qualifies as communicating with the enemy — will have on media freedom. But there is not simply moral equivalence between Manning’s actions and the actions of the New York Times. There is legal equivalence, as well. So if Manning deserves to be court-martialed for aiding the enemy, Bill Keller should be in the dock with him.

Literally.

In the wake of Obama’s memorable statement, a number of bloggers have questioned whether the Boston bombings deserve to be labeled “terrorism.” Most of those bloggers — such as the excellent Ali Abuminah here – emphasize that many US definitions of terrorism require the violent act in question to be politically or ideologically motivated, which is still an open question with regard to the Tsarnaev brothers’ actions.

I’m sympathetic to this position — and I wholeheartedly agree with Abuminah’s observation that “acts of violence, especially mass shootings, carried out typically by white males, are immediately labeled as the acts of ‘disturbed individuals’ while the acts of a person identified as ‘Muslim’ are to be labeled ‘terrorism’ regardless of the facts.” But it is important to acknowledge that not all definitions of terrorism require a political or ideological motivation — including the one that is most relevant to the Boston bombings, the International Convention for the Suppression of Terrorist Bombings (“Terrorist Bombing Convention”), which is codified in the US Code at 18 USC 2332f. Here is the international definition:

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

(a) With the intent to cause death or serious bodily injury; or

(b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

And here is the US definition:

(a) Offenses -

(1) In general – Whoever unlawfully delivers, places, discharges, or detonates an explosive or other lethal device in, into, or against a place of public use, a state or government facility, a public transportation system, or an infrastructure facility -

(A) with the intent to cause death or serious bodily injury,
or
(B) with the intent to cause extensive destruction of such a place, facility, or system, where such destruction results in or is likely to result in major economic loss,

shall be punished as prescribed in subsection (c).

The Boston bombings clearly qualify as terrorism under either definition. There is also no question that the Terrorist Bombing Convention applies, because one of the victims of the bombings was a Chinese national. (The Convention excludes acts that take place in one state and involve only nationals of that state.) The US version is a bit more complicated, because 18 USC 2332f requires a bombing to have a substantial effect on foreign or interstate commerce if jurisdiction is predicated — as it would be here — on the fact that the bombing killing a foreign national. But I agree with Bobby Chesney that the bombings almost certainly do have the requisite effect.

Again, I think it’s unfortunate that the label “terrorism” is almost always reserved for violent acts committed by Muslims, even though domestic groups (from right-to-lifers to neo-Nazis) pose a much greater threat to Americans living in the US. But that doesn’t change the fact that setting off bombs in the middle of a marathon does indeed qualify as terrorism.

NOTE: I should add that, as a normative matter, we should restrict the term “terrorism” to violent acts that are politically or ideologically motivated. I think it is precisely the presence of such a motivation that distinguishes terrorism from “ordinary” criminality. Alas, the international community does not seem to agree, at least for certain kinds of weapons.

The US Supreme Court released its long-awaited Kiobel decision this morning, affirming the Second Circuit’s dismissal of the plaintiffs Alien Tort Statute claims.  Chief Justice Roberts wrote the opinion, joined by Justices Scalia, Alito, Thomas, and Kennedy.  Justice Kennedy wrote a separate concurrence; Justice Alito did likewise, joined by Justice Thomas. Justice Breyer concurred in the judgment, joined by Justices Ginsburg, Sotomayor, and Kagan.  I’m posting this primarily in order to supply the link to the opinion asap, so I’ll refrain from commenting on it for now.  The SCOTUS opinion in Kiobel v. Royal Dutch Petroleum Co. can be found here.

Apparently, the answer is yes, according to Professor Jeremi Suri of the University of Texas writing in the New York Times:

The Korean crisis has now become a strategic threat to America’s core national interests. The best option is to destroy the North Korean missile on the ground before it is launched. The United States should use a precise airstrike to render the missile and its mobile launcher inoperable.

President Obama should state clearly and forthrightly that this is an act of self-defense in response to explicit threats from North Korea and clear evidence of a prepared weapon. He should give the leaders of South Korea, Japan, China and Taiwan advance notice before acting. And he should explain that this is a limited defensive strike on a military target — an operation that poses no threat to civilians — and that America does not intend to bring about regime change. The purpose is to neutralize a clear and present danger. That is all.

I am highly dubious about this action as a policy matter, but I think that such a strike would be legal as a “preemptive” act of self-defense under international law.  Even for those wedded to the possibly outdated Caroline principle, I think the various statements by North Korea (including denouncing the armistice and making specific threats against South Korea and the United States) and its act of moving its missile into launch position would satisfy the Caroline’s imminence requirement.  I think a surgical strike that targeted only the missile would satisfy the proportionality requirement.

I am somewhat skeptical of Prof. Suri’s assurance that this will actually improve the security situation in Korea and Secretary Kerry seems to be going in the opposite direction.  But I do think he is right in putting this option on the table.   In any event, legal concerns should not constrain U.S. actions here.