General

The Unwilling Part of “Unwilling or Unable”

Marty Lederman last week posted a typically comprehensive treatment of the legal issues raised by Charlie Savage’s account of the administration decision to send forces into Pakistan to kill or capture Osama bin Laden. I’d earlier criticized the CIA’s apparent view that non-self-executing treaties are not legally binding on the President, and I take Marty plainly to agree with this principle. It’s no doubt true there is yet more to learn and understand about how the CIA’s position on this question has actually manifested itself in administration decision-making, but given what we already know, I’m not sure how to avoid the already deeply concerning conclusion that as a general matter the CIA seems to have badly misunderstood the legally binding nature of treaties the United States has signed and ratified. Where Marty and I appear to disagree is on the question (a question I set aside at the beginning of the last post) whether the United States’ incursion into Pakistan during the bin Laden mission violated Article 2(4) of the UN Charter (one of those legally binding (even if non-self-executing) treaty provisions) prohibiting the “use of force against the territorial integrity or political independence of any state.” There is of course vigorous ongoing disagreement (e.g. here and here, but this is only the tip of the iceberg) about the argument that there is any exception to the Art. 2(4) principle on the grounds that the target country is “unwilling or unable” to address the threat a non-state actor on its territory poses to the targeting country. But let’s ignore all that for now and just assume for the sake of argument that one embraces some “unwilling or unable” exception to the Article 2 prohibition. Even assuming as much, the argument the administration lawyers appear to have made in the bin Laden case goes a step beyond. In particular, because the United States did not want to risk alerting Pakistan of the operation in advance for fear that Pakistani officials would inform bin Laden, the lawyers would have had to argue that the targeting country could conclude on its own that the target country is “unwilling” to address the non-state actor threat, whether or not the country would in fact be willing if asked. In Marty’s conception, the argument would go as follows. (1) The “unwilling or unable” test “is best understood as an application of the jus ad bellum requirement of necessity.” (2) Because the United States had a reasonable and well-founded fear that elements of the Pakistani government would have tipped off bin Laden, making any subsequent intervention impossible, it was reasonable for the lawyers to conclude that the U.S. use of force “without prior Pakistani notification/coordination was, more likely than not, necessary to interdict the threat posed by bin Laden.” (emphasis mine) Put more directly, a target country can be deemed “unwilling” to address a non-state actor threat if the targeting country thinks it is “necessary” to do the targeting itself. Marty forthrightly notes that there is no current law that informs this argument – an artifact, it seems to me, of the reality that only a handful of countries have yet recognized the “unwilling or unable” exception at all. But that does not mean there is no law here that applies.

Weekly News Wrap: Monday, November 9, 2015

Your weekly selection of international law and international relations headlines from around the world: Africa Residents of Sierra Leone's capital held a candlelit vigil and celebrations to mark the end of an Ebola epidemic that has killed almost 4,000 people including more than 220 health workers since it began last year. The international community has condemned Burundi's government for inciting violence amid a...

New General Editors for CUP’s International Law Series

I'm delighted to announce that two good friends, Leiden's Larissa van den Herik (also one of my PhD supervisors!) and Manchester's Jean d'Aspremont, are the new General Editors for CUP's prestigious Cambridge Studies in International and Comparative Law book series, which celebrates its 70th birthday next year. Here is Larissa's statement: It is with great enthusiasm that I take on the general editorship of...

A Fascinating Interview with Duncan Kennedy

Duncan, unlike David, is not primarily an international law scholar. But Kennedy's work on critical legal studies has had a profound influence on most left-wing international law scholars -- including me. So I wanted to post a link to a fascinating and wonderfully substantive interview with him conducted by Tor Krever, Carl Lisberger, and Max Utzschneider. I had no idea Kennedy worked...

Remembering Professor Burns Weston

Professor Burns Weston passed away on October 28, 2015.  His daughter, Rebecca Weston, wrote the following obituary, which she passed on to us to circulate among the international law community.  I never had the privilege of meeting Professor Weston, but was a regular user of his textbooks (on both international law and international environmental law).  I know I speak for...

Weekly News Wrap: Monday, November 2, 2015

Your weekly selection of international law and international relations headlines from around the world: Africa Rebel fighters in South Sudan have released 13 United Nations workers who were held hostage for a week, the UN has said. Al-Shabab fighters in Somalia have struck again - managing to evade security measures to stage an attack in downtown Mogadishu. At least two soldiers and 11 militants...

More Memos Anyone?

Today the New York Times reported on the existence of four secret memos covering the various aspects of the U.S. Navy Seals raid that killed Osama Bin Laden.  It would be great to see the memos, but I wouldn't hold your breath. They aren't likely to be released in the very near future, though I think each of them would,...

Contra CIA, Non-Self-Executing Treaties Are Still the Supreme Law of the Land

Let’s set aside for now the apparent reliance on the “unwilling or unable” exception to justify the U.S. invasion of Pakistan without that country’s consent – even without having asked the country for its consent. Let’s also set aside the apparent designation of the bin Laden operation as a “covert action” under U.S. law – when it’s not at all clear the operation was intended “to influence political, economic, or military conditions abroad,” as the U.S. law of covert action requires (as opposed to, for example, just killing or capturing bin Laden). The most troubling sentence in Charlie Savage’s new New York Times piece on the legal theory underlying the United States’ 2011 incursion into Pakistan to kill or capture Osama bin Laden is this: “While the lawyers believed that Mr. Obama was bound to obey domestic law, they also believed he could decide to violate international law when authorizing a ‘covert’ action, officials said.”

Constitutionality of Congressional Restrictions on Guantanamo Prisoner Transfers

Harold Koh has an interesting post over at Just Security thinking through what options would remain available to President Obama to close Guantanamo if Congress once again imposes restrictions on the transfer of prisoners off the base. Congress has imposed a range of such restrictions in annual legislation since 2009, invariably prohibiting the transfer of prisoners to the United States. As Koh notes, Congress has accomplished this on each occasion not by imposing an outright ban, but through its capacious Spending Clause power under Article I of the Constitution. Congress famously holds the purse strings for all U.S. government spending, and it has prohibited the expenditure of any funds for the purpose of such transfers. Are these restrictions an unconstitutional infringement by Congress on the President’s own powers under Article II (as Commander in Chief, etc.)? Koh stops short of answering directly, but he does say this (quoting President Obama’s recent veto statement and past signing statement):

“[M]ost likely, the President’s action would stand even if challenged, as Prosecutor-in-Chief to ‘determine when and where to prosecute them, based on the facts and circumstances of each case and our national security interests,’ and as Diplomat-in-Chief and Commander-in-Chief to decide and arrange through negotiations ‘when and where to transfer them consistent with our national security and our humane treatment policy.’”

Koh is surely right there must be some limits to Congress’ power to act through spending restrictions, as with all constitutional power; legislation will be held unconstitutional if it violates Bill of Rights prohibitions, for example. Particularly to the extent the legislative restrictions impinge on the President’s prosecutorial powers (although only to that extent - it seems clear the administration still contemplates criminally prosecuting only a fraction of the remaining detainees), the President has a constitutional case to make that the Constitution gives him, and only him, not only the power but the duty to execute the laws that are established. Koh might also have added that the weight of history, such as it is, is on the President’s side. As I’ve written in detail elsewhere, in all of the major wars of the 20th and 21st centuries in which U.S. detention operations are now concluded – World Wars I and II, Korea and Vietnam, the 1991 and 2003 Iraq Wars – conflicts during which the United States held hundreds of thousands of prisoners in total, the imprisonment of enemies held pursuant to wartime authorities has always come to an end, and the resolution of these detentions has always been handled by the executive branch. Indeed, Congress has not imposed anything like the current restrictions on the exchange, transfer or release of prisoners, during or after the period of armed conflict in any of the previous conflicts over the past century. Nonetheless, I remain deeply skeptical of the strength of the constitutional argument that the President has sufficient Article II power to succeed in demonstrating that the spending restrictions are an unconstitutional infringement on presidential power.