Author: Kenneth Anderson

by Kenneth Anderson

In the extensive and sometimes heated arguments over universal jurisdiction, Judge Baltasar Garzon, and national courts such as those of Spain, often missing is much scholarly information on the actual evolution and state of Spanish domestic law on universal jurisdiction, certainly in English and accessible to English language scholars.  Ignacio de la Rasilla del Moral, a Spanish academic (apparently currently in the US), has put up on SSRN a discussion of the evolution – rise and fall – of universal jurisdiction law in Spain, up to mid-2009 and proposed revisions to the Spanish law.  The Swan Song of Universal Jurisdiction in Spain, 9 International Criminal Law Review (2009) 777-808.  I have various disagreements with the way that the article treats international law aspects of crimes subject to universal jurisdiction, but overall it is a very helpful addition to the scholarship for English language scholars seeking to understand what it means inside domestic Spanish law.  The abstract is below the fold.

On 29 April 2009 the Spanish National Court opened a cause against the “perpetrators, the instigators, the necessary collaborators and accomplices” of alleged tortures at the Guantanamo camp and other overseas detention facilities. Before examining how these and other causes currently opened in Spain under the principle of universal jurisdiction enshrined by Art. 23.4 of the Organic Law of the Judicial Branch (LOPJ) are likely to be affected by the legislative reform of that very provision approved by the Spanish Congress of Deputies on 25 June 2009, we will first examine the sinuous – and now dramatically indicative in retrospect – jurisprudential evolution of the treatment of the principle of universal justice by Spanish Courts since the Constitutional Court enshrined a doctrine of unconditional universal jurisdiction in its widely celebrated Guatemala Genocide case in June 2005. Th is is complemented by an overview of the cases that, jurisdictionally based on the principle of universal justice enshrined by Article 23 of the LOPJ, are still currently open (from e.g., Tibet to Rwanda or Gaza) before Spanish Courts.

In addition, set against the background provided by the release of the four so-called “torture memos” by the Obama Administration in April 2009, there is a brief examination of the possibilities of jurisdictional prosecution of both the perpetrators and those who formulated the legal guidance authorizing the “enhanced interrogators techniques” in both the U.S. domestic law system and international legal jurisdictional settings, including at the ICJ level. Eventually, an examination of the hasty procedure through which the new relevant Spanish provision in this area has been adopted and the legal effects, with reference to cases currently opened before the Spanish courts, of the newly reformed article give place to a brief reflection on the prospects of international law in the age of an emerging new international judiciary in view of thestructural deficit of mechanisms of participatory democracy on the domestic plane with relevance in the international realm as dramatically epitomized at this juncture by the Spanish legal system.

by Kenneth Anderson

I’m sure others here at OJ will have more detailed views, but … the U.S. Court of Appeals for the D.C. Circuit has handed down its opinion in Al Maqaleh v. Gates.  Chief Judge David Sentelle’s opinion (joined by Judge David Tatel and Senior Judge Harry Edwards) opens:

Three detainees at Bagram Air Force Base in Afghanistan petitioned the district court for habeas corpus relief from their confinement by the United States military.1 Appellants (collectively “the United States” or “the government”) moved to dismiss for lack of jurisdiction based on § 7(a) of the Military Commissions Act of 2006, Pub. L. No. 109–366, 120 Stat. 2600 (2006) (“MCA”). The district court agreed with the United States that § 7(a) of the MCA purported to deprive the court of jurisdiction, but held that this section could not constitutionally be applied to deprive the court of jurisdiction under the Supreme Court’s test articulated in Boumediene v. Bush, 128 S. Ct. 2229 (2008). The court therefore denied the motion to dismiss but certified the three habeas cases for interlocutory appeal under 28 U.S.C. § 1292(b). Pursuant to that certification, the government filed a petition to this court for interlocutory appeal. We granted the petition and now consider the jurisdictional question. Upon review, and applying the Supreme Court decision in Boumediene, we determine that the district court did not have jurisdiction to consider the petitions for habeas corpus. We therefore reverse the order of the district court and order that the petitions be dismissed.

A couple of reactions on a really, really fast read.  First, the opinion does not appear like a big win for either side on its reasoning, rather than result.  It seems nuanced and not at all either, habeas from here to Mars, or no habeas anywhere outside of the territorial US (and Guantanamo).  It seems to hold out the possibility of a different situation reaching a different result – meaning, it does not seem to me that it has clearly removed the federal courts from at least reviewing detention cases worldwide.  Second, it speaks multiple times of “active theatres of conflict” and “zones of conflict” – as a reason for treating Bagram differently; it addresses “all of Afghanistan” as an active theater of conflict.  This follows, of course, from the analysis of different places and Eisentrager, but I wonder whether it signifies in some future case acceptance of the idea that under the laws of war in general armed conflict is geographically defined, including for the purposes that Mary Ellen O’Connell and others have been debating, over targeted killing, for example.  Not clear, I suppose, given that habeas has its own set of considerations not necessarily applicable to the scope of armed conflict as such.  Third, let’s mention, in light of the criticisms of Justice Department lawyers involved in detainee cases, the exceedingly tough government argument is under signature of … Neal Katyal. But this is a really quick read; I could have misread things or got them wrong.

by Kenneth Anderson

In the category of advertisements for myself … Julian was kind enough to mention that EJILTalk is hosting a discussion of an article of mine called The Rise of International Criminal Law, which appeared in EJIL last year as part of its 20th anniversary issues.  It was a relatively short, but wide-ranging essay trying to assess, twenty years on, where ICL has gone and is likely to go, on a whole series of otherwise unrelated issues.  EJIL ran a response in the print edition by Amrita Kapur, and in addition responses at the online blog by her and by Brad Roth.  I have finally managed to get a response together, which is quite long and will run in three posts.  The other responses are linked at the beginning of that post, as well.  I have to thank publicly EJILTalk for running such a long response, which in many ways is practically a new essay – but especially Amrita Kapur and Brad Roth for reading so closely and with such nuance my original article.  I’m very grateful to them for so much close reading and thought.  Below the fold is a bit from my response.

I have no idea what History will bring, and it is possible that the institutions of ICL will consolidate themselves into something resembling what Kapur offers.   Or Isaiah, or Tennyson, for that matter, or even the worldwide ummah; others in the world also have eschatological visions.  I do not think the historical evidence that it will consolidate itself in these ways is very persuasive at this point, but one can differ about its persuasiveness, of course.  But given how long the history of failed attempts here, surely those arguing for today’s version of it ought to be willing to accept a bit more of the burden of proof that this one will succeed?  Is that so much to ask?

Then there is ICL’s constant plea for more time.  Kapur says this again in her blog response; with respect to R2P, for example: “how much can we realistically expect this early in the reconceptualization process?”  Give us more time, on this, on that – in a perhaps overly-accommodating desire not to prejudge historical outcomes, The Rise of International Criminal Law grants lots and lots of time for these institutions to prove themselves.  Quite possibly more than it ought.  As I tried to suggest (rather gently) in the original article, time turns into something like a universal solvent that, just so long as it is granted, permits the tensions inherent in all these international law and politics agendas to not have to confront each other and, possibly, spark each other to death, because it turns out that some of these projects are not reconcilable one with another, and the result is, what, Alien v Predator?  …

Time is what Kapur’s responses most seek.  Well, okay, says my article – take your time.  But in this reply, perhaps it bears asking, could we have some indication of how much time is too much?  How much time must go by, without reaching the happy system of justice promised by ICL, when we are entitled to say, well, it didn’t work?

Surely there is some concern that that “time” is simply a way of forestalling accountability, a way of putting one’s institutions beyond falsifiability.  What, even in principle, would demonstrate that the ICL approach to international justice is a mistake?  What would represent a fair test?  It seems odd that no one seems to raise this in scholarship in which, I would have thought, setting forth tests of success and failure would be an indication of confidence in the long term prospects of the project.  Time is something that my article grants – but I hope it is not out of bounds to ask, when does the sense of ‘in time’ become ‘only in the fullness of time’ – which is to say, eschatological?

Maybe time will do its work and institutions will eventually draw close enough to satisfy my quite undemanding and pragmatic standards.  The point is, however, maybe they will and maybe they won’t.  I don’t think the evidence that they will is persuasive, and moreover I do think – speculatively, sure – that the rise of Asia, China above all, is likely to undermine these institutions.  I think it is likely to show them to be a discourse of universalist superstructure built atop the structure of a loose American hegemony that, if it goes into decline, takes much of this stuff with it.

by Kenneth Anderson

I’ve been lite blogging and will be for a bit longer, due to travel and some deadline pressures.  I will try to get something up about the latest drone hearing in Congress, the ACLU’s letter, and that stuff.  Let us not neglect the EU debt crisis, either.  Kudos to Northwestern University law school’s Searle Center, for the conference I am currently attending on ATS issues – great conference, great papers, great folks.  But most important, this meeting has finally given Roger and me the chance to meet in person!  During all this time, Roger and I have never actually met.  I can report to our faithful readers that Professor Alford is as gracious, charming and intellectually acute as everything you have read from him on this blog attests.

by Kenneth Anderson

I am simply raiding Eugene Volokh’s edited clip from this new holding in the Ninth Circuit, including a discussion of the Charming Betsy canon (see the last couple of paragraphs, below the fold).  From Serra v. Lapin (9th Cir. Apr. 9, 2010) (Clifton, J., joined by Kozinski, C.J., and Wallace, J.) (some paragraph breaks added by Eugene):

Current and former federal prisoners allege that the low wages they were paid for work performed in prison violated their rights under the Fifth Amendment and various sources of international law…. Plaintiffs earned between $19.00 and $145.00 per month at rates as low as nineteen cents per hour. Plaintiffs contend that by paying them such low wages, Defendants … violated Plaintiffs’ rights under the Fifth Amendment to the United States Constitution; articles 7 through 9 of the International Covenant on Civil and Political Rights (“ICCPR”); a U.N. document entitled “Standard Minimum Rules for the Treatment of Prisoners;” and the law of nations.

Plaintiffs allege that Defendants violated their due process rights under the Fifth Amendment by denying them fair wages. This claim fails because prisoners do not have a legal entitlement to payment for their work, and the Due Process Clause protects only against deprivation of existing interests in life, liberty, or property….

Plaintiffs fail to state a viable claim under the International Covenant on Civil and Political Rights. “For any treaty to be susceptible to judicial enforcement it must both confer individual rights and be self-executing.” A treaty is self-executing when it is automatically enforceable in domestic courts without implementing legislation. The ICCPR fails to satisfy either requirement because it was ratified “on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts.”

The Standard Minimum Rules for the Treatment of Prisoners similarly fail as a source of justiciable rights. This document was adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1955 “to set out what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions.” It is not a treaty, and it is not binding on the United States. Even if it were a self-executing treaty, the document does not purport to serve as a source of private rights. The “Rules” themselves acknowledge that they are not all “capable of application in all places and at all times,” and are “not intended to preclude experiment.”. Moreover, the specific rule identified by Plaintiffs as a source of rights declares only that “[t]here shall be a system of equitable remuneration of the work of prisoners” without specifying what wages would qualify.

Finally, Plaintiffs assert that “the customs and usages” of the nations of the world, as revealed in these and other sources, form customary international law entitling them to higher wages. This claim fails because customary international law is not a source of judicially enforceable private rights in the absence of a statute conferring jurisdiction over such claims. See Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174 n. 1 (D.C.Cir.1994) (“While it is true that ‘international law is part of our law,’ it is also our law that a federal court is not competent to hear a claim arising under international law absent a statute granting such jurisdiction.” (citation omitted)); see also Sosa, 542 U.S. at 720 (“ ‘[O]ffences against this law of nations are principally incident to whole states or nations,’ and not individuals seeking relief in court.” (quoting Blackstone, 4 Commentaries 68) (alteration omitted)). Plaintiffs can point to no statute that brings their claim within our purview.

The Alien Tort Statute (“ATS”) is the only possible vehicle for a claim like Plaintiffs’ because no other statute recognizes a general cause of action under the law of nations. The ATS grants to the district courts “original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” We need not decide whether Plaintiffs’ proposed minimum wage for prison labor “rest[s] on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of [Blackstone’s] 18th-century paradigms,” because Plaintiffs have conceded that they are not aliens. The scope of the ATS is limited to suits “by an alien.” …

We have allowed ourselves a few sidelong glances at the law of nations in non-ATS cases by applying the canon of statutory construction that “[w]here fairly possible, a United States statute is to be construed as not to conflict with international law or with an international agreement with the U.S.” The canon is derived from Chief Justice Marshall’s statement that

an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations as understood in this country.

The Charming Betsy canon is not an inviolable rule of general application, but a principle of interpretation that bears on a limited range of cases. Mindful that “Congress has the power to legislate beyond the limits posed by international law,” we do not review federal law for adherence to the law of nations with the same rigor that we apply when we must review statutes for adherence to the Constitution. We invoke the Charming Betsy canon only where conformity with the law of nations is relevant to considerations of international comity, and only “where it is possible to do so without distorting the statute.” We decline to determine whether Plaintiffs’ rates of pay were in violation of the law of nations because this case meets neither condition for applying the canon.

First, the purpose of the Charming Betsy canon is to avoid the negative “foreign policy implications” of violating the law of nations, and Plaintiffs have offered no reason to believe that their low wages are likely to “embroil[ ] the nation in a foreign policy dispute.” That the courts should ever invoke the Charming Betsy canon in favor of United States citizens is doubtful, because a violation of the law of nations as against a United States citizen is unlikely to bring about the international discord that the canon guards against. In The Charming Betsy, the status of the ship’s owner as a Danish subject, and thus a neutral in the conflict between the United States and France, was critical to the Court’s conclusion that the Non-Intercourse Act of 1800 should not be interpreted to permit the seizure and sale of his ship.

We have never employed the Charming Betsy canon in a case involving exclusively domestic parties and domestic acts, nor has the Supreme Court. As a general rule, domestic parties must rely on domestic law when they sue each other over domestic injuries in federal court. We need not consider whether the statutory and regulatory regime of federal inmate compensation conflicts with the law of nations because Plaintiffs, as United States citizens and residents, have not demonstrated that their low wages have any possible ramifications for this country’s foreign affairs.

Second, “[t]he Charming Betsy canon comes into play only where Congress’s intent is ambiguous,” and there is nothing ambiguous about the complete discretion that Congress vested in the Attorney General with regard to inmate pay. Congress is not constrained by international law as it is by the Constitution. See United States v. Aguilar, 883 F.2d 662, 679 (9th Cir.1989) (“In enacting statutes, Congress is not bound by international law; if it chooses to do so, it may legislate contrary to the limits posed by international law.” (alterations and quotation marks omitted)). As a result, “we are bound by a properly enacted statute, provided it be constitutional, even if that statute violates international law.” Because the statutes giving the Attorney General discretion over prisoner pay grades are unambiguous, there is no reason for this court to decide whether they accord with the law of nations….

by Kenneth Anderson

If you are going to be in DC on Friday, April 23, there will be a terrific law of armed conflict program all day at Catholic University, Columbus Law School, including Harold Koh as lunchtime keynote speaker and a host of luminaries on the panels.  Advance registration required.  See program details below the fold.

Controversy and Developments in the Law of Armed Conflict: Customary vs Treaty Law; Law of the Sea Manual; Manual on International Law Applicable to Air and Missile Warfare

Friday, April 23, 2010

The Catholic University of America
Columbus School of Law
Washington, DC 20064

This program will examine three important efforts relating to International Humanitarian Law: the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, the more recent Commentary and Manual on International Law Applicable to Air and Missile Warfare (prepared by the Harvard Program on Humanitarian Policy and Conflict Research), and the ICRC’s multi-volume study on Customary International Humanitarian Law. To what extent do the manuals reflect state practice, and what role do such manuals play in the formulation and application of customary international humanitarian law?  Panels of international law experts and practitioners will discuss these important issues in a format designed to encourage lively debate, and to draw conclusions based both on scholarly treatises and the actual practice of states.

Registration: The program will take place at the Columbus School of Law at The Catholic University of America, 3600 John McCormack Road, N.E., Washington, D.C. The law school is located one block from the Brookland-CUA stop on Metro’s Red Line. The fee of $40 per person will cover morning coffee, lunch and an afternoon reception. Advance registration is required. To register, please send a check (payable to The Catholic University of America) to Professor Michael F. Noone, Jr., Columbus School of Law, The Catholic University of America, Washington, D.C. 20064. Please include full name, title, affiliation, daytime phone number and e-mail address. To request directions or parking information, please call 202-319-6126 or e-mail nooneATlawDOTedu.

9:00 a.m. COFFEE AND REGISTRATION

9:45 a.m. WELCOME REMARKS

James Burger, for the American Membership of the Society

Maj. Gen Charles J. Dunlap, USAF (retired), former Deputy Judge Advocate General of the Air Force

10:00 a.m. PANEL ONE: CUSTOMARY VS. TREATY LAW IN THE DEVELOPMENT OF LOAC

Moderator: James Burger, Office of the General Counsel, Department of Defense

Arne Willy Dahl, president of the International Society for Military Law and the Law of War, Judge Advocate General, Norwegian Armed Forces

Jamie Allan Williamson, legal adviser, International Committee of the Red Cross Regional Delegation for the United States and Canada

Professor Ken Anderson, Washington College of Law, American University {accepted but not confirmed}

Hays Parks, Office of the General Counsel, Department of Defense

Ashley Deeks, Office of the Legal Adviser, Department of State

Richard Jackson, Office of the Army Judge Advocate General

12:00 p.m. LUNCHEON AND KEYNOTE ADDRESS

Hon. Harold Hongju Koh, Legal Adviser, U.S. Department of State

1:00 p.m.  PANEL TWO: SAN REMO NAVAL WARFARE MANUAL

Moderator, Professor Michael Noone, Catholic University School of Law

John Norton Moore, Walter L. Brown Professor of Law at the University of  Virginia School of Law;

Director, Center for National Security Law and Center for Oceans Law and Policy

Capt. J. Ashley Roach, JAGC U.S. Navy (Retired), and Office of the Legal Adviser, U.S. Department of State (retired)

Joe Baggett, Capt. U.S. Navy (retired) JAGC, Acting Chief, Navy Code 10 (Operations Law) Division,

U.S. Navy Judge Advocate General’s Office

Capt. Stephanie Smart, U.S. Navy JAGC, Office of the Legal Adviser to the Chairman of the Joint Chiefs of Staff

by Kenneth Anderson

Alas, I don’t agree with very much of KJH’s critique of Eric Posner’s Wall Street Journal opinion piece last week – Eric commenting on the suspension of Spain’s crusading universal jurisdictionalist judge, Baltasar Garzon.  However, rather than get back into that, I wanted to flag instead Financial Times columnist Christopher Caldwell’s comment on the subject.

Baltasar Garzón, the radical and ambitious investigative magistrate, made his name in Spain by revealing the tactics of Spanish counter-terrorism officials in the 1990s. In 1998, he ordered the arrest of the Chilean dictator Augusto Pinochet in a London hospital and in 2009 he proposed trying White House lawyers for the advice they gave George W. Bush on the legality of detaining prisoners at Guantánamo Bay. His agenda is consistently controversial. To some it looks like battling corruption on an ever bigger stage. To others it looks like corruption itself.

Last week’s proceedings concerned allegations brought by conservative activists that Mr Garzón collected big fees for university lectures in New York, and then dropped a case against a director of Banco Santander, which underwrote the lectures. Mr Garzón denies all wrongdoing. But it is a second case against Mr Garzón that has divided Spanish public opinion. In the autumn of 2008, he opened an investigation into the almost four decades of Francisco Franco’s rule, which ended with the dictator’s death in 1975. Mr Garzón called for opening more than a dozen mass graves, including the one in which the poet Federico García Lorca is thought to lie. Under the terms of a 1977 amnesty, enacted during the transition to democracy, political crimes committed under the dictatorship are not prosecutable. Mr Garzón carried on regardless, denying the law’s validity on human rights grounds. In so doing, magistrates argue, he overstepped his judicial mandate. He may soon be suspended from the bench. Mr Garzón’s supporters claim he is the victim of a rightwing put-up job. The claim has considerable plausibility. He has been investigating the so-called “Gürtel” case, a pattern of alleged political pay-offs that implicates two dozen members of the conservative Popular party. Mr Almodóvar has made the outlandish claim that Mr Garzón is being pursued by the Falange, a fascistic movement founded before the Spanish civil war, which is now senescent and marginalised.

The problem is not so much with the Spanish right in particular as with the Spanish judicial system in general. Judges are highly politicised. Mr Garzón is no exception. His justice is selective. He moved against Pinochet at a time when Fidel Castro was visiting Spain. Mr Garzón once told the magazine Mother Jones that he watched Costa Gavras movies when preparing for important hearings. You don’t get much more ideological than that.

So foreigners, those of us outside of Spain, might want to take a little care, as some of the OJ commenters have urged, and maintain a little distance on Garzon personally.  Kevin’s concern is the general question of amnesties; fair enough.  (Update: re-reading this, I realize that my complaint about non-Spaniards not aware of Garzon’s controversies in Spain looks like it is aimed at Kevin and his argument; that’s not my aim, and apologies to Kevin.  Kevin’s concerns are, first the general question of amnesties, which I discuss below, and, second, Chile.  I don’t intend to impute to Kevin naivete about Garzon’s relation to judicial politics in Spain.  I’ve cleaned up some of this below but not all.)  But in discussions surrounding Garzon, in Spain … it’s complicated.

Garzon is a much more complicated figure than he is often made out to be in the pasturelands of academic and activist human rights.  My time in Spain on sabbatical a couple of years ago echoed what Caldwell says, and more.  Garzon’s grandstanding in the horrific Atocha train station bombing in particular irritated many people in Spain, even across the party lines – Garzon’s arrival at the station and taking charge of the investigation ‘on no authority whatsoever other than his own ego’ (I quote an annoyed Zapatero supporter at the time).

There was also quite a lot of irritation that Garzon seemed to have unlimited capacities for pursuing universal jurisdiction claims and attendant international headlines abroad – but could not manage to find time, so the allegation went, for piled up, years dragged out, quotidian domestic cases on his docket.  Garzon is also not precisely the single-minded advocate of international human rights, at least not when the issue involves terrorism inside Spain – the conduct of his investigations into ETA terrorists might have raised eyebrows.  Then there are the allegations – I stress, allegations which might turn out to be untrue, or susceptible of a completely different and innocent characterization, flagged by Jose Guardia of Barcepundit (he writes in Spanish and does his own English translations, which are not quite perfect).  Guardia notes for the international audience what is an open discussion in Spain; Barcepundit is a conservative and hostile to Garzon, but again, at a minimum, aren’t there obvious issues of recusal that bear answering, at least?  Guardia (not Caldwell) writes:

But, as I said, there’s other cases against Garzón that are being investigated. One (link in Spanish), the year on leave he spent teaching in NYU, between March 2005 and June 2006. He failed to declare he was getting paid a grant for him, his assistant, and his daughter schooling, by NYU, so the Spanish judiciary kept paying him his regular salary as if he didn’t (that’s illegal). More damning, NYU paid him with funds provided by Banco Santander. Garzón asked personally in letters to Emilio Botín, the bank’s CEO and one of its main shareholders, to pay NYU in order for NYU to pay him. Worst of all, just as Garzón’s leave ended and after he came back to Spain and resumed his duties as a magistrate, he immediately acquitted Botín from a high-profile case around the illegal concession of loans.

(Just to be clear, as I’ve mixed up columnists a lot here, the above quote was Guardia.)  You might think that none of these are relevant or important issues of judicial conduct, and all of it might be perfectly okay – likewise the wiretapping allegations, etc. – but, well, if you haven’t actually heard of these controversies around Garzon inside Spain, some modest reservation of judgment might be a good idea.  But Caldwell’s column goes on to discuss amnesties generally; a subject on which, obviously, there is room for a general debate, not something particular to the facts of Spanish judicial politics.  Caldwell (this is updated to make clear who is being quoted) says:

However, it is Mr Garzón’s modus operandi, not his politics, that is on trial. His basic tactic has been to delegitimise the amnesties that often accompany (and make possible) transitions from dictatorship or civil war to democracy. In Mr Garzón’s view, the parliamentary arrangements by which Chile granted Pinochet a limited amnesty and a senatorship-for-life were, under international human rights law, null and void. Spaniards, who for the most part applauded when Mr Garzón inflicted this doctrine on the world, are having second thoughts on seeing it applied to their own history.

They should. Mr Garzón’s approach probably causes more harm than it prevents. Since nobody has legitimate authority to legislate for the world, to invalidate national laws in the name of international “norms” is to replace democratic rule with judicial fiat. It is also to falsify history, by promoting the myth that such amnesties are unnecessary accidents – that, but for the compromises of politics, any given democracy could have been brought into being through the political equivalent of immaculate conception. More pragmatically, although impunity for history’s malefactors is an upsetting thing to have to tolerate, it is sometimes the only means of ending a conflict. Amnesties are not negotiated only because a political class is corrupt or stupid. They are also negotiated because they help stop a cycle of belligerence that can continue indefinitely.

This is a general argument about amnesties, not particular to Garzon or Spain, with which can obviously agree or disagree.  It is closer to Eric Posner’s view than Kevin’s, I guess we could say with some understatement.   Caldwell’s reference to “unnecessary accidents” is a good way to put it.  I would add to what Caldwell says above that when later presidents either attack or defend amnesties, there is often necessarily a strategic political element to the statement – such a statement is made not solely with regards to its content, but with regards to the evolving winners and losers in current politics. Which is fine and as it should be for politicians seeking to navigate the present set against the troubles of the past – but then one cannot take it purely for its content, either.  But it’s worth noting that ‘no justice, no peace’ works better as a moral claim than an empirical historical one; or at a minimum, the authority of the former is not authority for the latter, unless your view of natural law is pretty darn strong.

However, I do not agree with Eric Posner’s analysis of where universal jurisdiction is likely to go, whatever happens in the Garzon case.  In particular, precisely because the allegations against Garzon are so particular to him and to Spain, I do not think they provide much prediction for what happens to the general political trend.  My political guess for the future, on the contrary, is that universal jurisdiction claims against the United States, whether in international tribunals or foreign courts, are dead only for so long as there is an Obama administration.  Things will shift again once there is a Republican administration; the bellweather to watch, of course, is targeted killing by the CIA using drones.

Other countries are moving to restrict access to claims by judges of universal jurisdiction, including in Spain, true.  But my read of those is that rather than plainly stripping out the category, instead the move – as in Spain – is to require highly discretionary political assent from someone, whether the Ministry of Justice or Attorney General or someone similar with political accountability.  (Bear in mind that the magistrate position that Garzon occupies is something between a judge and an investigating district attorney in the American system – it is not a judge in the sense of the arbiter who renders judgment on the case.)  In one fascinating conversation with a well-informed friend in Spain, the comment was that the shift in Spanish process was not on account of pressure from the US – and skepticism that there had been pressure – but instead, if not precisely pressure from China, the anticipatory fear of pressure from China.

Bearding a Republican administration is one thing.  Bearding the New Strong Horse – that is quite another.  The suggestion was that countries wanted political flexibility, to use the category for domestic political benefits of pleasing one or another constituency, particularly when it came to the US – but not to run any risks of offending China.  I do not think Eric is likely to be proven right that the age of enchantment with universal jurisdiction is over.  As for Garzon, I foresee that he steps down from the bench, forced or otherwise, and gets hired with a prominent professorship at NYU.

(Conflict of interest and personal pleading watch!:  I should note, however, that Christopher is an old and good friend.  He has been a journalist long specialized in Western Europe, back when it was considered really, really boring, and the author of an important and controversial book on Muslim immigration in Western Europe.  For that matter, he was regularly cited to me by journalist friends in France, Germany, and Spain as one of the few American journalists who took a serious interest in the economic performance of France and Germany.  Rather than, as one irritated French journalist friend once called (after a series of particularly vapid American news stories around the time of the Sarkozy-Royal election battle) the ‘NYT view of France’, as evidenced by its long choice of Paris correspondents, viz., that all of France consisted of the ‘Disneyland of American imagination in central Paris – food and fashion’.  I said, you don’t mind that he is also a senior editor of the Weekly Standard?  To which I was told, Caldwell is serious.)

by Kenneth Anderson

Former DOS Legal Adviser (and a path-breaking guest blogger here at OJ when in that role a couple of years ago) John Bellinger has a short opinion column out at the CFR site, April 14, 2010 (corrected link, I hope!), discussing continuity and change in US detention policy on counterterrorism.  John takes up a range of issues, from trials to repatriation and more, and concludes that there is mostly continuity with the second Bush term.  I agree.  It is a good, short, robust summary of the issues involved.

(Update: In addition to John’s piece, Rick Pildes and David Golove have a calm, reasoned discussion at Balkinization on ways to deal with terrorism related detentions and trials.  They call for an approach that mingles aspects of criminal law and armed conflict law.  They emphasize the need for a legislated system.  It is true, of course, that I am an advocate of a national security court approach to both detention and trial, so I am predisposed to some form of the “melding” view, and am also strongly committed to legislating a system for all this — but regardless of where you start, I think this is an excellent discussion.)

by Kenneth Anderson

Adam Serwer, a journalist and blogger at the American Prospect, makes this observation in a very interesting post (linked in Robert Wright’s NYT Opinionator column) at the American Prospect Tapped blog (via The Progressive Realist).  (My apologies for interrupting the symposium also; I’ll take a backseat now!):

State Department Legal Adviser Harold Koh’s speech to the American Society of International Law has mostly been read as a justification of the administration’s use of drone strikes against suspected al-Qaeda targets. With the news that the Obama administration has targetedAmerican-born extremist cleric Anwar al-Awlaki for death, I went back to Koh’s explanation for why the drone strikes are legal. It seems to me that his arguments could possibly double as a justification of the government’s authority to kill al-Awlaki without due process.

Serwer then walks back through the text of Legal Adviser Koh’s speech, applying the language about drones to the targeting of Anwar al-Awlaki.  He concludes that it could be seen as a justification for that as well.  I think that’s right, and a good observation.  

Of course, I think also that targeting al-Awlaki is a good idea, legally justified, and moreover think this a persuasive basis for so concluding.

My dear friend Sandy Levinson posts briefly on this over at Balkinization, and comments on a speech by Jack Goldsmith at University of Texas:

I note that Jack Goldsmith gave an excellent talk at the University of Texas last week making the argument that in almost all fundamental respects the Obama Administration is continuing the “anti– and counter-terrorism” policies of the “second Bush Administration,” i.e., the second-term Bush presidency that freed itself, to at least some extent, from the mad-dog unilaterlism identified with Dick Cheney, David Addington, and John Yoo. It is difficult to disagree with Goldsmith’s argument, empirically. Whether we should be cheered or dejected is, of course, another matter entirely.

Curiously, this is one of the few matters on which I think that the Obama administration is not actually continuing the Bush administration policies — at least if policies includes legal justification as well as surface actions.  Legal Adviser Koh’s statement on drones and its explicit appeal to legitimate self-defense apart from armed conflict, as a basis for targeting (and agreeing here with Serwer, including targeting Americans), is simultaneously a break with Bush administration policy (even while, in one sense, broadening it), and a re-affirmation of a legal policy going back to the Reagan-Bush years.

The self-defense assertion is important, and intellectually engaging, precisely because it is not the ground on which the Bush administration claimed its ability to target people.  For the Bush administration, it was always armed conflict, global and plenary; for the Obama administration, it allows for two strikingly different legal rationales.  And yet the self-defense rationale has the further characteristic of being a break with the Bush administration — while also being a return to a longer, and deeper tradition in the use of force by the United States.

Legal Adviser Koh alluded to the importance and, within the executive branch and the State Department, the independent weight of that traditional jurisprudence in the beginning of his speech, in which he made some important — but by the press largely not-understood as being important — prefatory framing remarks about the internal jurisprudence of the executive branch.  Those methodological remarks were at once a response to Koh’s critics on his right, but also a warning (not enthusiastically received, to be sure) to the academic audience at ASIL to his left.

But drones and done targeting constitutes the exception rather than the rule of Obama administration counterterrorism policies and their continuity with the Bush second term; and overall, I quite agree with Jack and Sandy’s assessment.  (Cross posted from Volokh.)

by Kenneth Anderson

I am unable to say much at this moment, either to Kevin’s question below or to this Robert Wright “Opinionator” blog post in the New York Times, but I did want to flag it for your attention.  Wright is unhappy with both drone warfare and targeting of US citizens, and many other things besides:

Students of the law might raise a couple of questions: 1) Doesn’t it violate international law to fire missiles into Pakistan (especially on a roughly weekly basis) when the Pakistani government has given no formal authorization? 2) Wouldn’t firing a missile at al-Awlaki in Yemen compound the international-law question with a constitutional question — namely whether giving the death penalty to an American without judicially establishing his guilt deprives him of due process?

I’m not qualified to answer these questions, and, besides, it doesn’t really matter what the correct answers are. The Obama administration has its lawyers scurrying to convince us that the answers are no and no, somewhat as the Bush administration dispatched John Yoo to justify its torture policy.

Hmm. That said, I must flee the scene, though I’ll try to say something to various of these issues later on; my disagreement with this view is not exactly news to Our Regular Readers.  Meanwhile, though, I’ve been reading through the Virginia symposium pieces, on all their various topics, and it looks like a heck of a good issue and grist for discussion.

by Kenneth Anderson

The Washington Post editorializes today in praise of Legal Adviser Koh’s statement on drones in his speech to ASIL on March 25.  It specifically focused on the self-defense distinction in the statement:

Mr. Koh’s reaffirmation of the right to self-defense — even outside the confines of an existing armed conflict — is particularly important. The Authorization for the Use of Military Force (AUMF) after Sept. 11, 2001, empowered the president to pursue those responsible for the attacks, including al-Qaeda and the Taliban. That authority may wane with time. But the right of self-defense is inherent and may be exercised against current and future enemies that pose an imminent threat, including those operating outside of traditional combat zones.

The Wall Street Journal also praised the speech – or at least the drone warfare part of it – in an editorial a week or so ago.  (Unless I missed something, I don’t believe the NYT has weighed in editorially on this issue.)  The WSJ’s news story on the speech, by Keith Johnson, is here; it has a nice roundup of expert opinion, including Mary Ellen O’Connell, the ACLU’s Jonathan Manes, CFR’s Brett McGurk, and me.

by Kenneth Anderson

by Kenneth Anderson

It’s not true that everything I do is about drone warfare, but it has taken a lot of my time lately and, of course, a lot of stuff is happening, both on the operational side as well as legal side.  So here’s a little round-up of links, more or less at random.

First, the New York Times has a front page article today, looking at the impact of drones on terrorist and militant activities in Waziristan.  It is an interesting piece, not least because it acknowledges not just the effectiveness of the campaign, but the effectiveness of the Obama administration’s sharply ramped-up CIA campaign.  (HT Instapundit.)

A stepped-up campaign of American drone strikes over the past three months has battered Al Qaeda and its Pakistani and Afghan brethren in the tribal area of North Waziristan, according to a mid-ranking militant and supporters of the government there.

The strikes have cast a pall of fear over an area that was once a free zone for Al Qaeda and the Taliban, forcing militants to abandon satellite phones and large gatherings in favor of communicating by courier and moving stealthily in small groups, they said.

The drones, operated by the C.I.A., fly overhead sometimes four at a time, emitting a beelike hum virtually 24 hours a day, observing and tracking targets, then unleashing missiles on their quarry, they said.

The strikes have sharpened tensions between the local tribesmen and the militants, who have dumped bodies with signs accusing the victims of being American spies in Miram Shah, the main town in North Waziristan, they said.

The impact of the drone strikes on the militants’ operations — on freedom of movement, ability to communicate and the ease of importing new recruits to replace those who have been killed — has been difficult to divine because North Waziristan, at the nether reaches of the tribal area, is virtually sealed from the outside world.

None of those interviewed would allow their names to be used for fear for their safety, and all were interviewed separately in a city outside the tribal areas. The supporters of the government worked in positions where they had access to information about the effects of the drone campaign.

Along with that of the militant, the accounts provided a rare window on how the drones have transformed life for all in the region.

By all reports, the bombardment of North Waziristan, and to a lesser extent South Waziristan, has become fast and furious since a combined Taliban and Qaeda suicide attack on a C.I.A. base in Khost, in southern Afghanistan, in late December.

On the legal side, responses trickle in to Harold Koh’s statement about drone warfare in his American Society of International Law address.  As I’ve indicated, as someone who had been highly critical of the long wait for the US government to offer a defense of its lawfulness, I’m very pleased with the statement.  For precisely the reasons I’m pleased, of course, numbers of others are not so pleased, as Ari Shapiro, who was at the speech, noted in his story for NPR.  For a good, even-handed discussion of the Legal Adviser’s statement, see this analysis by Anthony Dworkin of Crimes of War, including the several links provided at the end.

At first sight, Koh’s justification appears to be based on the idea, familiar from the Bush administration, that the United States is engaged in a worldwide armed conflict with al-Qaeda and the Taliban and can use lethal force against anyone fighting on the other side. However a closer reading of Koh’s remarks shows that his position is not so clear-cut. Although Koh clearly refers to an ongoing armed conflict, he also offers the broader notion of self-defence as an alternative justification. This is clear when he answers the possible objection that drone strikes away from a battlefield constitute unlawful extrajudicial killing. Not so, Koh replies—a state “that is engaged in an armed conflict or in legitimate self-defence is not required to provide targets with legal process before the state may use lethal force.”

The suggestion here is that a state that is the subject of sustained threat from an armed group may use lethal force when necessary to defend the lives of its citizens, even outside the context of a recognisable armed conflict. And furthermore that this right of self-defence extends not just to targeting those individuals engaged in an imminent attack against the United States, but those members of the armed group who are integral to the group’s broader campaign of violence against US citizens.

What is striking in Koh’s speech is that the existence of an armed conflict and the broader right of self-defence are both offered as possible justifications without any attempt to delineate the boundary between the two: it is not clear how far Koh is claiming that the purported armed conflict against al-Qaeda and the Taliban extends. Does it cover military actions in Pakistan? Somalia and Yemen? The ambiguity here is consistent with the continued lack of a definitive statement from the administration about the precise legal contours of its fight against al-Qaeda, in a way that is visible as regards detention policy as well.

Koh’s suggestion that drone strikes might be justifiable as self-defence even outside a recognisable armed conflict is in line with the position of earlier US administrations, as the legal scholar Ken Anderson recently argued in an article for the Weekly Standard. But what is missing in the administration’s justification for the drone attacks is any sense of what the limits are on the use of lethal force against individuals who do not pose an immediate threat. The restrictions in the laws of armed conflict, which concern only whether the target is engaged in hostilities against the United States and the degree of harm to other civilians, do not seem adequate here.

I should add that although I do take the view that non-international armed conflict is defined by the facts of where sustained, intense, hostilities are underway — which is one reason I think the applicable legal ground in some cases is self-defense — and in that sense “geographically” limited, it is important to recognize that many in law and policy in the United States, at least, do not accept that at all.

The Wall Street Journal was one of the few major newspapers that said much editorially or as news about the speech; its editorial is here, overall praising the Koh speech:

Count us among those applauding last week for the Obama Administration’s robust defense of the use of unmanned drones for targeted strikes against al Qaeda in Iraq, Afghanistan and elsewhere. In a speech to the American Society of International Law, State Department Legal Advisor Harold Koh presented a broad assertion of the U.S. right to pursue and kill terrorists overseas, on or off an active battlefield.  In laying out the legal argument for the strikes, the former Yale Law School dean was, to put it mildly, meticulous, even fastidious.

Pushback was found, among other places, in some commentary at Huffington Post, for example, by human rights lawyer Chris Rogers:

Koh failed to address serious concerns over the U.S.‘s use of drones to kill al-Qaeda and Taliban militants, and in particular the debate over strikes in Pakistan and other areas outside Afghanistan. Hopefully Koh’s remarks indicate that a fuller account of the U.S.‘s legal position is forthcoming. But for now, the program remains shrouded in secrecy and Koh’s mere assertions of the program’s legality fail to provide the kind of accountability that is urgently needed.

My own assessment of the fall-out is that there is a general sense of satisfaction within the intelligence community that Dean Koh specifically distinguished armed conflict from self defense, although many in it would have preferred to see a direct reference to the CIA and the lawfulness of its role.  Those who were already critical are no more satisfied — partly, I don’t think it is snarky to say, because the issue is not really about knowing more about it, but fundamental objection to it.  Knowing more about it isn’t really the issue for the ACLU or the human rights groups or various UN officials.  Ben Wittes is right in saying that for the international soft-law community, it remains the Next Big Thing.

by Kenneth Anderson

Toward the end of the section on drone warfare in Legal Adviser Koh’s March 25, 2010 speech to ASIL is a discussion that runs to US domestic law and regulation.  For the first time in a very long time — it might be since Koh’s predecessor Abe Sofaer addressed the question in a 1989 speech — the meaning of “assassination” in US law and regulation has been addressed in an authoritative and considered way by a senior US government lawyer.  Legal Adviser Koh said with respect to “assassination”:

[S]ome have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”

To refresh on the background to this.  Apart from questions of international law, the US has had a domestic ban on “assassination” in the form of an executive order that has been in place (or renewed in slightly different language) since the presidency of Gerald Ford.  In 1976, in the wake of revelations of CIA activities in the Church Committee hearings, President Ford issued EO 11905, the single relevant sentence of which read:  “No employee of the United States Government shall engage in, or conspire to engage in, political assassination.”  President Carter reissued the order in 1978 in slightly different language in EO 12036, which read in relevant part:  “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”  President Reagan reissued the order in 1981 using identical language in EO 12333:  “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”  EO 12333 was amended by subsequent EO’s, but the specific assassination ban text remains unchanged.

That said, the term “assassination” is never defined.  Whole forests have fallen as commentators, in law reviews and elsewhere, have debated its meaning over decades, however.  Does it refer to political leaders?  To whom does it apply or not apply?  Non-state actors?  Terrorist groups?  Political leaders of states with which the United States is at war?  Military-political leaders of such states (given how frequently that is the case)?  There is little material in the record as to what was intended — and perhaps not surprisingly.  What little anecdotal information exists from the EO’s issuance in the 1970s suggests that it was intended as a way of placating Congress, and avoiding an actual statutory ban.  The EO was apparently intended to be vague and undefined, and subsequent presidents — and, note, Congresses — have found that to be a useful ambiguity in which to leave it.  It has the status of a binding executive order in domestic law — and amendable, alterable, and revocable should the President want to do it.

I’ve never understood, to be frank, the scholarly agonizing around a single sentence with a wholly undefined term in an order not, and never, codified as a statute.  It defies interpretive settlement, I would have thought, precisely because it was not designed to bear any real legal weight.  It was instead merely a declaration in vague and general terms that whatever wicked killings the CIA did that were revealed in the Church hearings, those would not happen any more, a mea culpa and promise not to do some ill-defined bad things any more.  Well and good — the CIA did some bad and wicked things — but beyond that, one is not really going to get by textual interpretation.  Unsurprisingly, much of the commentary uses the interpretive discussion as a way of launching a normative view of when and what should be acceptable in the way of targeted killing.

The essentially normative launching pad of which much of the commentary consists is reinforced by the observation that US officials did offer two senior commentaries on the meaning of the ban in the late 1980s.  One was offered by senior law of war Department of Defense lawyer Hays Parks in a 1989 memorandum of law.  The conclusion of that memorandum, with respect to the use of military forces of the Department of Defense:

Assassination constitutes an act of murder that is prohibited by international law and Executive Order 12333. The purpose of Executive Order 1233 and its predecessors was to preclude unilateral actions by individual agents or agencies against selected foreign public officials, and to establish beyond any doubt that the United States does not condone assassination as an instrument of national policy. Its intent was not to limit lawful self defense options against legitimate threats to the national security of the United States or individual U.S. citizens. Acting consistent with the Charter of the United Nations, a decision by the President to employ clandestine, low visibility or overt military force would not constitute assassination if U.S. military forces were employed against the combatant forces of another nation, a guerrilla force, or a terrorist or other organization whose actions pose a threat to the security of the United States.

This analysis (or at least this particular concluding passage) is not explicit as to whether the act in question is murder because it is assassination and therefore unlawful, or whether it is assassination because it is murder and therefore unlawful.  In 1989, then Legal Adviser to the DOS, Abraham Sofaer, made a speech at the US Army JAG school in Charlottesville, Virginia, that spoke to this underlying issue of what is the predicate, independent violation of law, murder as such or assassination on grounds independent of murder:

The meaning of the term “assassination”’ in historical context, and in the light of its usage in the laws of war, is, simply, any unlawful killing of particular individuals for political purposes … virtually all available definitions of “assassination”’ include the word “murder,”’ which in law is a word of art. Murder is a crime, the most serious form of criminal homicide. That element is the most fundamental aspect of the assassination prohibition. All criminal killing is therefore potentially subject to the prohibition.

Under no circumstances, however, should assassination be defined to include any lawful homicide. Assassination is also commonly defined as killing with a political purpose. Murders that have no political purpose or context are criminal and remain subject to punishment, but these too should not be characterized as assassinations. Other elements offered in available definitions seem superfluous or even misleading. Thus, for example, whether a killing is done “secretly”’ or “treacherously”’ and whether the person is “prominent”’ would appear to be of little or no consequence for purposes of the Executive Order. Nor should it matter that the assassin “kills in the belief that he is acting in his own private or public interest”’ or whether the action is “surprising”’ or “secret.”  The pivotal elements in terms of controlling the behavior of government officials would seem to be illegality and political purpose … the historical background of the term casts considerable light on its meaning and strongly supports a definition limited to illegal, politically motivated killing.

The assassination ban, on this reading, argues that in order to be an assassination, the killing must already be unlawful on some independent ground — because it is murder, for example, or cannot be justified under international law of self-defense.  The result is that the ban on assassination becomes coincident with killing that would be unlawful under domestic or international law in any case.  The assassination ban does not include lawful acts of self-defense.

Consider again the Koh speech on this topic.  It too emphasizes that the ban is to be understood as not including lawful self-defense:

[U]nder domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.” (Emphasis added.)

This is one of several places in which the Koh address specifically distinguishes “self-defense” from “armed conflict.”  It expresses a view that when acting in lawful self-defense (which might or might not be “armed conflict” in a specifically legal sense of that term), targeting specific high-level belligerent leaders is not (independently) unlawful,and because it is not, it thus does not constitute “assassination.”

This is very significant, for at least two reasons.  One is that this reasoning adopts, as premise about international law, that there is a distinction between self-defense and armed conflict.  This is not the only place that the speech does so.  It specifically holds out that the possibility that there can be acts of self-defense separate from acts of armed conflict (I would say, though this particular passage does not, that lawful armed conflict is a subset of lawful self-defense).

Second, more centrally:  It clarifies, by essentially restating and reaffirming a legal view of the US government. one not re-stated (at least not plainly or very often, if at all, so far as I can tell) on both self-defense in international law and assassination in domestic law, dating back to the 1980s.  If the importance of the implication of the international law premise (the self-defense premise) is clear, however, why do I suggest that the domestic law interpretation of the assassination ban is also so significant? After all, it’s merely an executive order, alterable by a president at any time.

The reason I place such significance on this domestic law interpretation is practical.  Outsiders to government like me do not have much information on the thinking during the last two decades about targeted killing and assassination, including 1990s arguments over targeting Bin Laden and others.  Certainly I am not privy to any special information.  However, there is a reference to an OLC opinion from the 1990s, referenced in the 9/11 Commission report, about concerns that in order to avoid possible violation of the assassination ban, it was necessary to conclude that Bin Laden was a combatant, and therefore a target.  Otherwise — quite apart from any international law considerations — targeting him might contravene the assassination ban.

This led, so far as an outsider like me can tell, to push the US government, as it became aware of the Al Qaeda threat in the 1990s, to regard its actions as having to satisfy the requirements of combatancy, and not to assert any genuinely independent grounds of self-defense as a basis for targeting.  As I have argued at great length elsewhere, the collapse of the use of force into a binary consisting of law enforcement or armed conflict deprived the United States of recourse to the most useful and most obvious category of use of force — self-defense at minimal, targeted, discrete levels of violence that would not constitute a genuine legal armed conflict, using covert “intelligence” actors (or at least to accept constraints arising from a legal characterization of such intelligence uses of force that had to be based around the fundamentally armed conflict framing of combatancy).  Not an armed conflict because it would not be, paradoxically, violent, or intense, or sustained enough.  Which is, after all, what covert action is supposed to be, when successfully carried out as a use of force.

I believe that the precautionary legal view that the categories had to be either law enforcement or full-on armed conflict had an inhibiting effect on the effective use of force against Al Qaeda in the 1990s.  I can’t prove it or corroborate it; I’m not an insider in any sense.  However, I was always struck by a conversation with someone who was an insider in the 1990s; when I asked, sometime around 2004, why the insistence on establishing that someone was a “combatant” for purposes of targeting, the answer was immediate — “Oh, well, if we didn’t, we might be in violation of the assassination ban.”  No reference to a violation of international law — presumably because there was no ICC or courts of Spain or Baltasar Garzon in the mid-1990s — but a very real concern about US domestic law.

I won’t try to re-explain here why in my view it matters whether one appeals to combatancy as the legal frame, in an armed conflict, or the broader category of self-defense; it is discussed at length in this article, and for that matter I have raised it on Volokh and Opinio Juris (and the international law scholar Marko Milanovic has gravely disputed the self-defense argument at EJILTalk! blog).  Given the complete acceptance among the three branches of government that the United States is in an armed conflict with Al Qaeda — so that concepts of combatancy do apply — it would have been very easy merely to say, combatants in armed conflict can be targeted under international law, and targeting them does not violate the assassination ban.  Assuming that one takes a global view of the armed conflict (which, I should say, I do not, believing, as I do, that armed conflict with a non-state actor is limited to places of active, sustained, and intense hostilities, but leave that discussion for another post), one need not get into questions of self defense as an independent and broader category of the use of force.

The fact that this speech goes beyond armed conflict to the broader category of self defense speaks to the care that went into preparing this speech — with a view in mind of the needs of future presidents, facing future threats, and responsible for the safety of the United States of America in circumstances having nothing to do with Al Qaeda.  The Legal Adviser might have stopped merely with armed conflict, taking a narrow and presentist view that all that matters is Al Qaeda today, and not presidents tomorrow.  That he did not speaks highly of his long view of the presidency.  Because the law of self defense, while relevant today particularly to the use of force by the CIA, is most relevant to presidents stretching into the future.

But returning, finally, to assassination.  Yes, in my view, it matters a lot in a practical sense that officials of the CIA and other agencies are able to go about their business with considerably less concern that, quite apart from anything else, the one sentence concerning assassination in the EO might come back to haunt them as a matter of domestic law.  It’s not the end of the matter in a lawyerly sense, of course; memos need to be written, legal opinions given, and while I’m doubtful that the text of the EO would be modified to reflect this explicitly, that would be a good thing (it is possible that all of this has already happened inside government).  A single paragraph in a public speech does not take care of things all by itself.

Still, I think the Legal Adviser’s interpretation is correct, and I think it a matter of considerable significance that it so clearly draws upon a long-standing view within the US government, but one that had fallen (if this is not too strong a characterization) into a certain desuetude, at least to those of us outside of government.  Outsiders like me — and most readers — are not fully able to appreciate just how much work, digging, and evaluation of non-public legal memos, opinions, and reasoning dating back decades must necessarily go into what appears to be a simple conclusion in a couple of sentences.  The work behind it was, I’m certain, very substantial.

(Cross posted at VC.)

by Kenneth Anderson

Update:  I have had a chance to watch the video twice — I strongly recommend watching it, as it adds considerable language to the statements in the ASIL press release.  Given how much I have pressed publicly for a statement by the administration’s lawyers, I want to say this much even while I’m still doing a careful lawyerly parsing of the text.

First, let me praise Harold Koh for stepping up to the plate.  This is a plain, clear statement of the US view of the law and its application.  It is measured, and yet exceedingly direct.  My thanks and congratulations to the Legal Adviser for something that stands as clear opinio juris of the United States.  As someone who has been calling every more sharply for a public statement by the administration’s lawyers on targeted killing and drone warfare — most recently in a Weekly Standard article on exactly that theme, and again this week in a sharply worded statement to a House subcommittee hearing, and a clip on NPR this morning recorded several months ago with Ari Shapiro — this was an enormously positive step.

Second, on the substance.  On first read, I think this is a great statement.  It addresses an armed conflict with Al Qaeda, the Taliban, and associated forces.  But it also asserts self-defense several times as an alternative.  I had been greatly concerned, frankly, that the administration’s lawyers would narrowly confine the justification for targeted killing using drones to situations that would really only cover the military using them on active battlefields. But on first read, this statement does not do that at all. It appears to address situations of safe havens, for example, and indeed reasserts the traditional US view — that sovereignty and territorial integrity are important, but the US preserves its rights to go after its enemies in their safe havens.

I want a chance to go over the written text and say something much more exact.  But given how much, particularly this week on account of the Congressional testimony, my criticisms of the administration’s lawyers have been in the news, I would like to make it known as publicly as possible that,  the Legal Adviser’s statement on targeted killing and drone technology is very positive, very strong, and admirably forthright.  My congratulations and thanks to the Legal Adviser.

*

I couldn’t cancel classes tonight after so many snow days, so I unfortunately had to miss the Legal Adviser’s keynote at ASIL – I’m doing this from a mobile, but after rumors that the speech would address drone warfare and targeted killing at least in part, I’m very curious and eager to see it, and wonder if anyone could point me in the direction of a link to an official written text of the speech (I need to be able to read it on my mobile).  Very grateful if anyone can point me that direction.  Thanks.

by Kenneth Anderson

(Note:  I hear Rumors, Unverified Gossip, and Speculation that Legal Adviser Koh will give a formal statement of views on targeted killing and drone warfare at his keynote address at ASIL this week.  I would certainly welcome such a statement, of course – I hope that it would be sufficiently broad so as to encompass what the President is actually and most controversially doing (via the CIA as well as the military) as well as what future presidents might do in the world of After Al Qaeda – but in any case, certainly I would welcome a public statement by the Obama administration’s lawyers on this vital topic.  Unfortunately, I won’t be able to attend, as canceling class after so many snow days and lost time this semester is a bad idea, but I look forward to the webcast.)

Yesterday (Tuesday, March 23, 2010) I was pleased to appear as a witness before the House Subcommittee on National Security and Foreign Affairs, to discuss drone warfare and Unmanned Aerial Vehicles (UAVs).  The list of witnesses is here, along with a link to a webcast (which I can’t seem to open), and links to the witness statements.  I am always fascinated to listen to Brooking’s Peter Singer, author of Wired for War.  I was particularly interested to hear in this session discussion of the many ways in which UAV technology is entering civilian fields – everything from crop dusting to monitoring schools of fish from the sky.  Someone mentioned (but I haven’t verified) that University of Nevada now offers a degree program in UAV control.   My points were fairly removed from much of the rest of the technological or military discussion, being aimed squarely at policy and legal policy concerns.  In my oral statement, I emphasized the following:

• The Obama administration has embraced drone warfare, but its lawyers have not caught up; presumably they have private concluded that the several drone warfare programs underway are legal, but it is not a good idea to keep the rationales secret.  Not, at least, with a program in Pakistan that is only a matter of official denial, not secret.  It leaves the President and operations people on down hanging out there exposed.
• The drone warfare campaign embraced most thoroughly as a strategic matter – correctly, in my view – by the senior administration officials starting with the President is not the “hot battlefield” use of drones, in which they are essentially a substitute air support weapon for a manned system.  It is, instead, the use of drones in a role unique to them, as a targeted killing mechanism for use in places far off of active battlefields.  There are some questions raised about military battlefield use of drones, but the real questions lie off the active hot battlefield – and it is these uses that are the real reason why senior Obama officials have celebrated them.
• The fundamental issue in a legal policy sense, then, is not so much drones as such – it is their use in a campaign by the CIA of targeted killing.  A better way to understand the drone debate is that this emerging technology has forced onto the table discussion of the lawful and appropriate role of the CIA, in the use of force, and in covert operations using force.  Much of the purely military discussion is interesting technically, but legally somewhat beside the point at least at this point.  A millimeter beneath the surface of the drone discussion is the question of the CIA.  This is the point of the attack on the CIA’s role as criminal made by Mary Ellen O’Connell, and also by Gary Solis in his characterization of America’s “own unlawful combatants.”
• CIA director Leon Panetta has been engaged in a vigorous public defense of the drone program of targeted killing by the CIA.  I am all in favor of it, of course – but as a friend of the program, so to speak, and happy as I am to see Panetta speak up, his defense of the CIA program is slightly beside the point.  He defends the success of the program. Leaving aside criticisms of “blowback” – easy to make, hard to prove or disprove, frankly, but leave that aside – for most of us the success of the program is not the issue.  At issue is its legality, not its success.  Or at least, to know on what basis the lawyers think it is legal.
• Even you believe targeted killing using drones is, as a general proposition, legal under domestic and international law, as I do, it matters what kind of legal rationale one asserts for it.  Not all lawyers would agree, to be sure, and I suspect this includes lawyers inside the administration, but in my view it matters whether one adopts an “armed conflict” justification in which, when the US targets someone in Pakistan or Yemen or Somalia or wherever, that person is determined to be a lawful target – and it doesn’t matter, for the bare legality of targeting, where he is located.  The armed conflict goes where the combatant goes.  Mumbai, Mogadishu, wherever.  I think this is wrong as a question of the laws of armed conflict, because it does not adhere to the threshold requirements of this peculiar non-international conflict with a non-state actor taking place on a global basis that the US has with Al Qaeda.  In my view, the proper legal frame is international law of self-defense – and it is what the US has traditionally viewed the exercise of these discrete uses of force by the CIA, covert or clandestine, as being anyway.
• These two legal rationales eventually lead to different legal conclusions, constraints and authority for the use of force.  My view is that forcing CIA targeted killing in places that might range widely in the world into armed conflict rationales is bad for the CIA’s legal reasoning, and requires ever greater legal contortions to make it fit into a model of armed conflict law that is about the overt meeting of armies and state forces, not covert ops and intelligence services using force.  I don’t think it is a stable legal view for the CIA over the long term.  Moreover, as I thought in analyzing the Bush administration’s “global war on terror” legal frame, forcing all uses of force outside of plain law enforcement into the armed conflict box of law for overt war distorts that body of law and its interpretation, too.  It isn’t about regulating covert ops and intelligence services – there was a good reason why, during all those decades before the 1990s, it was regarded as not unlawful under international law, but not part of the law of armed conflict, either.

So I think it will turn out to matter quite a lot over the long term that the Obama lawyers eventually opt for the specific law of armed conflict, including its definitions and thresholds under treaty and customary law, or some customary law of self-defense.  My guess is that the administration’s lawyers will finally opt for what appears to them to be both a narrower and a superficially reassuring ground of armed conflict that allows them to say that everyone being targeted is a “combatant” in a legal sense.  Again, my own view is that this won’t work over the long run – it will degrade as a rationale for the CIA under withering attack from the soft-law community, and it will have a tendency to degrade the law of war itself as rationales suited to a body of rules about large scale, or at least overt, conflict modeled on inter-state armed conflict, continues to pressed into service in an area that is mostly about covert or clandestine operations, and which aims to avoid overt war.

Put more bluntly, as a political evaluation, I think this rationale will work so long, but just so long, as there is an Obama administration.  As a legal rationale, armed conflict as a rationale will turn out to be a legally and politically “wasting asset.”  The legal attacks on targeted killing and the use of drones therein will be developing, but won’t ripen into active claims of war crimes and so on, at least ones that have teeth, until the Obama administration leaves office.  Like many of the Bush-era legal tools in counterterrorism, my guess is that the Obama administration will rely on them – but not legally defend them in ways that leave them plainly and cleanly available to the next president or future administrations.

by Kenneth Anderson

The excitement over the AQ7 ad put out by Liz Cheney’s organization has died down, but Ben Wittes has this piece up in The New Republic extending the letter that he drafted, and to which I earlier linked, signed by a group of conservative and centrist folks criticizing it.  I was one of the signers, and wound up sticking up by own very lengthy comment about it over at Volokh.  I didn’t link here at the time, as I thought the tone a little waspish for OJ, but with Ben’s article in TNR, I’ll change my mind and link to it (it’s long and the title is “No Righteous Gentile Award, Please”).

I suppose the key point for Ben and me, in somewhat different ways, is that we have each received much praise from folks on the left for defending Obama lawyers such as Neal Katyal or Jen Daskal.  No one objects to praise, or at least I don’t, but much of it was a little misplaced.  The praise tended to be as though, in order to defend the Obama lawyers, we had somehow changed our minds about the Bush lawyers.  Whereas, for Ben and for me, each in somewhat different ways, the issue was the same.  We defended Katyal and Daskal because we had defended the Bush lawyers and thought the same principle applied.  I also followed up with an response to conservatives such as Andy McCarthy who attacked the Wittes letter; it too was fairly waspish in tone.  What with health care reform, and lots of other things on the agenda, the discussion is moving on, but it has been an important one, and at least among conservatives, a clarifying one.

From the opening of Ben Wittes’s essay:

The attacks on the Justice Department lawyers who had represented Guantanamo detainees angered me for several distinct reasons. They typified a growing culture of incivility in the politics of national security and law that I have always loathed and have spoken against repeatedly. They sought to delegitimize the legal defense of politically unpopular clients and to impose a kind of ideological litmus test on Justice Department service. They were also, at least in part, about friends and professional acquaintances. And they reminded me painfully of other friends during the Bush administration who had been similarly slimed and for whom the bar had failed to stand up.

The criticism had been simmering for some time in newspaper columns and editorials, but it exploded in the public arena with the now-infamous web ad by a group called Keep America Safe. The video, ostensibly about the Justice Department’s unwillingness to release the names of all of the lawyers who had worked on Gitmo, brands the unknown ones as the “Al Qaeda 7” and wonders “Why the secrecy” behind them? “Whose values do they share?” The two lawyers whose identities were already public—Principal Deputy Solicitor General Neal Katyal and an official in the department’s National Security Division named Jennifer Daskal—saw individual articles blasting them. Citing their service, The New York Postasked in a January editorial, “Whose side is the Justice Department on: America’s—or the terrorists’?” When the latest video appeared, I typed out a simple statement and began circulating it among colleagues for signatures.

I am a peculiar choice to organize what The New York Times later called “a Who’s Who of former Republican administration officials and conservative legal figures”—not being a former GOP official, a conservative, or even a lawyer. I occupy a strange place in the current debate over law and terror, sympathetic to important arguments made by both right and left. I have fiercely criticized both the Bush administration’s counterterrorism policies and the Obama administration’s—and fiercely defended both as well.

Yet as the attacks mounted, I wondered whether centrist and conservative lawyers, some of whom had suffered similar attacks themselves, would take a strong stand in defense of the Obama Justice Department lawyers. The answer, it turns out, was as encouraging as the attacks themselves were dispiriting. These lawyers responded with an outpouring of enthusiasm, resulting in a powerful rebuke to the political operatives who had launched the attacks.

by Kenneth Anderson

Politico (linked here to Yahoo) carries a story today on a letter drafted by Benjamin Wittes and signed by a number of conservative and centrists lawyers, former Bush administration officials, and policy analysts on conservative attacks on the role of lawyers in terrorism cases – the so-called Al Qaeda 7 at the Justice Department.  I’m one of the signers, but there are many more important and prominent signers, including John Bellinger, Matthew Waxman, David Rivkin and Lee Casey.  It will almost certainly gain more signatures as the week goes on, and my thanks to Ben for putting it together.

by Kenneth Anderson

My new Weekly Standard essay – although “polemic” is probably closer to it.  And thanks, Julian, for the plug below! Well, regular readers have been hearing about this piece for a while, and I have posted various arguments from it (concerning targeted killing and Predator drones and the CIA and armed conflict and self-defense, and my general concern that the Obama administration has embraced a policy that its lawyers have not so far stood up publicly to defend as lawful against its gradually emerging critics in the international “soft law” community) here at Opinio Juris and at Volokh Conspiracy.  I will post a couple of comments on the piece later, including of couple of things I wish I had clarified or said differently.  Meanwhile, if you are interested, it is the cover in this week’s Weekly Standard (March 8, 2010).  It is also very, very long, at some 8,000 words — for which I am deeply grateful to the WS’s editors but you perhaps will not be — and so you might find it easier to read a pdf of the print edition at SSRN.

I have been meaning to add, though, that several positions are emerging in new scholarship coming out on this topic.  I’m not the only person defending “self defense” as the correct paradigm, for example.  Jordan Paust has an important new paper on this, and although we come to very different conclusions as to what and how self-defense does things for you, we share a foundation in international law of self-defense.  Mary Ellen O’Connell also has a well known position, ably set out in this book chapter, and which I criticize in passing in the WS.  John Radsan and Richard Murphy stake out an interesting position that calls for some form of judicial review of targeted killing, in this new Cardozo paper.  And, of course, the Ur-Text on the subject (even when I disagree with it!) Nils Melzer’s treatise, Targeted Killing in International Law (Oxford 2008), which I see is now out in paperback at $50 (but no Kindle edition).  I will come back in a separate post both to comment on some things from the WS essay at a less political level, and also to give a better sense of where my position sits in relation to others in the international law community.  Finally, I’d like to thank and congratulate the Harvard National Security Journal for its upcoming symposium on robotics, drones, and related topics this week – it promises to be very interesting, and I believe the journal might post some account of it or perhaps some video of the program.

by Kenneth Anderson

David Rittgers, a Cato legal analyst and former Special Forces officer, has an excellent op-ed in today’s Wall Street Journal on the use of Predator drones.  He cautions, on the one hand, against reflexively regarding drone attacks as nonjudicial execution or, really, functionally different from other weapons that soldiers might use — as well as cautioning against the idea that Congress or courts could somehow micromanage the use of these weapons.  On the other hand, he cautions against thinking that the problem of drones is that the US should be seeking to capture rather than kill because of the loss of intelligence; he notes that operationally, there are many reasons why capture is very often infeasible.  It’s a good piece, measured and sensible, and I highly recommend it.

I’ve been quiet around here in the last little while as I, too, have been writing about Predators and targeted killing — expanding and moving beyond my book chapter from last year  on this topic.  Barring some big news on health care or some such, the Weekly Standard will be running a piece from me next week arguing something I’ve developed at Volokh Conspiracy and here at OJ blog:  first, that the administration’s lawyers need to step up to the plate and defend targeted killing using Predators and, second, the proper legal basis on which to defend it to the full extent undertaken by the Obama administration is the international law of self-defense, rather than simply the law of armed conflict, targeting combatants.

In another piece coming soon (this one a book chapter in a Hoover Institution online collection of essays from the Hoover Task Force on National Security and Law), I will be arguing a further step in this — one which relates to Rittgers WSJ op-ed.  Underlying much of the argument over drone warfare is a submerged factual and normative frame about who, what, and where.  Rittgers, for example, is drawing upon his extensive experience as a Special Forces officer, and reserve judge advocate, with three tours in Afghanistan, to point out that it is a mistake and really not possible to micromanage military operations in the field.  Nor is the use of a missile fired from a drone in battle significantly different from a missile fired from a manned aircraft, or a helicopter, or some other place.

Critics who call the practice extrajudicial execution, however, are frequently focused upon another scenario.  The version of it analytically furthest from the hot battlefield scenario is a CIA directed drone missile strike upon a target in a compound far away from any theatre of active fighting, such as AfPak — someone in Yemen or Somalia, to take the obvious examples.  From the critics’ standpoint, it is a bit of bait and switch to defend drone missile attacks on the basis of their use on a hot, active battlefield, or even in a general theatre of conflict — for which, the critic will note, one might or might not include the “Pak” part of “AfPak” — and then turn around and say, therefore, a CIA attack in Somalia is similarly okay.  From the critics’ view, even if the theatre of conflict use by uniformed military is okay on traditional military targeting terms (and for the human rights monitors, it likely is not — or, more precisely, permissible in principle, but somehow not in any particular circumstances), that is not the same as the CIA’s global reach.  From the critics’ point of view, that is, what goes on operationally at ground level in Afghanistan somewhat misses the point.  From my view, too, what needs to be defended as legal policy by the United States is not principally that use of drone attacks — that is not at that point so much questioned, although perhaps I am too sanguine about it — but instead the CIA, covert action as a category, and targeted killing outside of the traditionally understood idea of  a zone of armed conflict.

This is one of the reasons that I regard the proper legal basis for Predator targeted killing to be the law of self-defense — it is what the Obama administration really intends, if it is not to fall back into the idea of a “global” war on terror, and yet also intends to preserve the traditional sovereign legal right to strike at non-state actor terrorists in their safe havens, if the relevant state cannot or will not deal with them.  The President and Vice President have said repeatedly — and in so doing, merely re-stating what ever president has asserted since transnational terrorism rose as a threat to Americans — that the US will take the fight to the terrorists, and pointedly said wherever that is and that terrorists will not be allowed safe haven, and that the US will strike on the basis of the terrorists’ intentions.  Nothing new in that, but the legal basis for the United States to do so is different from the legal basis on which it is lawful to use drones and missiles from drones in a theatre of active armed conflict.

The legal, normative, and moral arguments over drones, then, are not so much about hot battlefields, nor even largely about theatres of active armed conflict.  The arguments are about the use of drones and targeted killing by the covert services, the CIA, beyond those confines.  Understood that way, this is about drone warfare as a form of strategic airpower.  The attempt to dominate from the air on a global, or at least potentially extensive geographic, basis using unmanned airpower.  Not all of this is about counterterrorism or the use of smaller and more discriminating, person-specific weaponry.  The Israelis officially unveiled their massive, airliner sized drone aircraft, the purpose of which is presumably to be able to strike at nuclear facilities in Iran — not about targeted killing, but the classic projection of strategic airpower.

Again, one way of understanding the strategic frame is as strategic airpower — leveraging military capital over labor through drones, with the intention of developing a counter-raiding capability that extends over an ever greater geographic range, whether for large-weaponry anti-facility attacks or small-scale anti-individual targeted killing.  Strategic airpower has long been a holy grail — but it has never worked quite as successfully as each new iteration hopes.  The “light footprint” strategy based around counterterrorism, over the horizon drones and missiles, might or might not be a winning strategy; it might be, rather, that counterinsurgency through boots on the ground and denial of territory for safe havens is required, as many have believed in any sustained guerrilla conflict.  I don’t know the answer to that question; the administration’s long delay in determining its Afghanistan strategy was presumably, at the most abstract level, about answering exactly that.  What is clear is that whether pure counterterrorism without on-the-ground counterinsurgency, or counterinsurgency to control territory and population, drones are going to be important.

Put another way, particularly as they are used outside of the active counterinsurgency theatre of AfPak, drones, with sophisticated surveillance gear but also missiles, act as the lightest of light cavalry.  They probe, surveil, and engage in pinprick attacks, behind enemy lines, far beyond one’s own lines.  When the CIA engages in targeted killing against some Al Qaeda operative in Somalia, from a strategic perspective, it is a combat raiding strategy by very light cavalry indeed.  But it is so far beyond one’s own lines, as it were, that from a legal standpoint, I would place it beyond the legal “armed conflict” altogether and treat this combat raiding use of force, as a matter of law, as an exercise in lawful self-defense.

But this will get discussed (in numbing detail, I’m afraid) in the Weekly Standard piece.  How’s this for my proposed title — likely to be shot down by an editor with better taste than me — Predators over Pakistan, Lawyers over Langley?