Archive | War and Armed Conflict

Lawyers for Victims of WWII Internment of Japanese-Americans Urge Overruling of Korematsu

At SCOTUSblog, Lyle Denniston has an interesting post on an effort by lawyers who represented Fred Korematsu and other victims of the internment of Japanese-Americans during World War II to persuade the Obama administration to advocate the overruling of Korematsu v. United States, the notorious 1944 Supreme Court decision that upheld the forcible internment of over 100,000 Japanese-Americans during World War II [HT: GMU law student Rebecca Bucchieri]:

Lawyers who worked for years — ultimately successfully — to clear the names of U.S. citizens of Japanese ancestry who were convicted of violating government detention policy during World War II are trying to persuade the Obama administration to join in wiping off the books the Supreme Court rulings of that time, upholding those detentions. The most famous of those rulings – often reviled – was the 1944 decision in Korematsu v. United States.

The lawyers did so in a letter last week to U.S. Solicitor General Donald B. Verrilli, Jr., attempting to shape the government’s response to a new Supreme Court appeal that attacks the Korematsu decision. They want the government to formally repudiate that precedent, and tell the Court that it is no part of the justification today for detention of U.S. citizens during the war on terrorism.

The new case is Hedges v. Obama (docket 13-758), an attempt to revive a constitutional challenge to Congress’s recent support of presidential power to detain suspected terrorists….

While Congress was debating that measure, a controversy arose over how far it would go, if at all, to permit the detention without trial of U.S. citizens captured inside the U.S. In a compromise effort to resolve that dispute, Congress included a statement that now seems ambiguous about what was intended. In the Hedges case, the claim is that the statement can be

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New Paper on International Criminal Court’s Jurisdiction over Israeli Settlements

My paper, Israel/Palestine — The ICC’s Uncharted Territory, has just been published in the Journal of International Criminal Justice. It explains that the International Criminal Court does not have jurisdiction over the oft-threatened and much-discussed Palestinian referral of Israeli settlements, despite the General Assembly’s recognition of Palestine as a non-member state. In brief, the relevant conduct does not occur “in the territory” of Palestine as required by Art. 12 of the Court’s Statute. Abstract here.

The article also provides perhaps the most comprehensive analysis thus far of the ICC’s territorial jurisdiction, which has thus far not caused much controversy, but could have significant implications for American forces in Guantanamo Bay, border incidents in the Koreas and elsewhere in Asia, and numerous other contexts.

The timing is fortuitous: Nabil Shaath, a top Palestinian official and negotiator, last week reemphasized threats to attempt to bring Israel before the ICC after the current negotiation period ends this spring. OK, not that fortuitous, as such threats come with considerable regularity, and it does appear this is Abba’s next move.

A separate article will explain why such a case might not satisfy the ICC’s requirement of dealing only with the gravest of the world’s atrocities. (I say might, because it is anyone’s guess; though the gravity threshold is a key component of the Court’s jurisdiction, it remains entirely undefined.) Thinking about calling it “When Gravity Fails” but that might be too cute. [...]

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China Asserts Air Defense Identification Zone Around Disputed Pacific Islands

Julian Ku at Opinio Juris notes that while much of the foreign policy community is focused on the Iran deal, China has undertaken a significant political escalation of its dispute with Japan over the Senkaku (or Daioyu) Islands, by invoking a so-called Air Defense Identification Zone (ADIZ) around the disputed islands.  The Wall Street Journal and other newspapers reported on it yesterday, noting criticism from both Washington and Tokyo; the response from Beijing, Julian adds, is for the US to mind its own business.   The WSJ quoted a “senior U.S. official” saying Sunday that there would likely be a demonstration of American military resolve to continue operating in the area of the islands without Chinese interference. The unspecified display, added the Journal’s story, “isn’t likely to involve a direct military confrontation.”

That demonstration came Monday night in the form of two US military aircraft, on what the Defense Department described as long-scheduled training mission, according to NBC news:

“We will not in any way change how we conduct our operations,” Pentagon spokesperson Col. Steve Warren said, adding that the U.S. maintains that the newly expanded ADIZ is in international waters. Monday evening ET, two B-52 bombers took off from Anderson Air Force Base in Guam as part of an ongoing training exercise called Coral Lightning Global Power Training Sortie. The bombers were in the ADIZ for less than one hour, Warren said. This was a “long-planned training exercise,” and the U.S. did not inform the Chinese of their flight plan, Warren said. The flights occurred without incident, Warren said, adding that there was no reaction, no Chinese aircraft were spotted in the air, and the Chinese did not contact the U.S. military about the flight.

What’s an ADIZ?  Speaking loosely, it’s a zone of airspace beyond a coastal state’s national borders projected [...]

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Does Nigeria Share Responsibility for Pirate Attack on US Sailors?

Two Americans have been kidnapped off an oil supply vessel off of Nigeria by local pirates, according to breaking new accounts.

Nigeria, like many nations, has been making it difficult for private security contractors to work off its shores. For example, it has recently arrested 15 Russian sailors from a ship operated by a security company, and held them for a year before dropping charges. Such nations do not like private security because, I gather, they would rather force oil companies and shippers to pay for their state-provided security monopoly.

India has in recent weeks arrested a ship operated by a U.S. based security company, and is holding the crew on weapons charges. India in turn is probably particularly jumpy about these things because of the Italian Marines who accidentally killed some Indian sailors thinking they were pirates, leading to an ongoing conflict between the two countries. Of course, this underscores that private contractors certainly do not have a monopoly on excessive use of force.

However, countries have a duty to repress piracy, codified in Art. 100 of the United Nations Convention on the Law of the Sea. Private security is the most effective measure against piracy: i for example, no ship with private security has been successfully hijacked in the entire Somali pirate epidemic. Thus I would argue that nations that make it difficult for private security to operate are in breach of their duty under international law, not that that amounts to much.

There will doubtless be speculation about a “Captain Phillips”-style dramatic rescue. If the hostages have been take back to Nigeria, I hope Abuja does not raise difficulties about American assistance in a rescue, as there own efforts will likely result in a bloody mess.

[Updated w/minor correction.] [...]

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A “Libertarian” Case for Conscription?

There are a number of standard arguments for military conscription. But Pascal-Emmanuel Gobry’s recent essay for Cato Unbound is unusual for claiming that conscription can be justified on libertarian grounds. With the possible exception of strict pacifism, it’s difficult to imagine an ideology more antithetical to conscription than libertarianism.

As it turns out, most of Gobry’s “libertarian” arguments for conscription are fairly conventional rationales for the draft dressed up in libertarian terminology. And the sheep’s clothing doesn’t make the wolves any more convincing than they are in their usual garb.

I. Conscription as a Threat to Liberty.

The most fundamental flaw in Gobry’s argument is that he ignores the extent to which conscription is not just any restriction on liberty but a very severe one. Subjecting millions of people to forced labor and harsh discipline for two to three years or longer is a very high level of coercion. It can be justified, if at all, only by strong evidence that the draft produces some great good that cannot be achieved by less oppressive means. You don’t have to be a libertarian to see this. A great many conservatives and liberals also understand this point, which is one of the reasons why the vast majority of Americans (most of whom are not libertarians) oppose the reintroduction of conscription. Libertarians set a higher value on liberty than adherents of other ideologies, and thus should require an even higher burden of proof before endorsing conscription. Libertarians should be the last people to accept a form of coercion that even most non-libertarians now reject.

Gobry tries to sidestep this issue by comparing conscription to taxation, mandatory jury service, and mandatory education for children, all of which he claims libertarians accept. But taxation and jury service are much less severe impositions than conscription. There [...]

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Congress’ Options on the Syria AUMF in Light of the Russian Offer to Transfer Assad’s Chemical Weapons to International Control

The Russian government and the Assad regime recently offered to transfer Syria’s chemical weapons to “international” control, in exchange for the US and its allies foregoing a military strike on Assad’s forces. Obviously, the offer raises many issues, including whether Russia’s and Assad’s assurances can be trusted and effectively verified. In this post, I only want to consider the implications for the authorization for the use of military force currently under consideration by Congress.

As I see it, Congress now has four options. First, it can simply pass something like the AUMF that was recently adopted by the Senate Foreign Relations Committee, regardless of the Russian offer. If President Obama decides to accept the offer, he doesn’t have to actually use the authority that Congress grants him. This would essentially leave the final decision up to the president.

The second option is to definitively vote down the present AUMF draft, and refuse to pass any other one. For those, like myself, who were skeptical of the desirability of launching an intervention even before the Russian offer, this might be an attractive choice. If an intervention was undesirable even before the Russian offer, it is even less desirable now. If the Russian proposal turns out to be a fraud, we would be no worse off than if we chose not to intervene in the absence of that proposal. If it really does lead Assad to give up some or all of his chemical weapons, that’s icing on the cake.

Third, Congress could issue a conditional AUMF, which would allow the president to use force only if the Russian offer turns out to be inadequate in some way. Obviously, the devil here would be in the details. Congress would have to decide what qualifies as an adequate offer in terms [...]

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The Nature of the Syrian Rebels and the Case for Intervention in Syria

I have previously suggested that the case for military intervention in Syria depends in large part on the nature of the rebels fighting to overthrow the regime of Bashar Assad. If the rebels are primarily radical Islamists who would establish a government as oppressive and anti-American as Assad’s, it would be both foolish and immoral to launch an intervention that ends up strengthening their position. Assad’s use of chemical weapons is a great evil. But it makes no sense to combat it by indirectly supporting an equal or greater evil.

The nature of the rebels should concern even those Americans who may be indifferent to the effect of intervention on Syria and care only about US strategic interests, narrowly defined. To put it mildly, radical Islamists tend to be strongly anti-American, and helping them seize power is unlikely to benefit the United States. If, as a result, al Qaeda-aligned elements among the rebels capture some of Assad’s chemical weapons, the consequences for the US might be dire indeed. And a “shot across the bow” attack that avoids helping the rebels because it doesn’t have much effect on Assad’s forces would be simply useless.

Last week, Secretary of State John Kerry told Congress that most of the Syrian rebels are moderates, and only 15-25% are radical Islamist extremists. Unfortunately, Kerry’s optimistic view is contradicted by independent experts (see here and here), and by US and allied intelligence assessments. No one doubts that there are Syrians opposed to Assad who want to replace his regime with a liberal democracy, or at least a less oppressive government than the status quo. The key question is whether such people will come to power if the rebels prevail, or whether the radical Islamists would dominate instead.

I am far from an expert on [...]

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Rep. Charles Rangel Cites Possible Intervention in Syria as a Justification for his Call for Reinstating the Draft

Democratic Representative Charles Rangel cites the possibility of intervention in Syria as a justification for reinstating the draft, a cause he has long advocated:

America seems increasingly inclined to engage in a new military conflict every few years, faced with a new populace to defend, a new democracy to design, and a new dictator to dethrone. We intend to wage a so-called “limited war,” when there is, in fact, no such thing. It is unfortunate that we don’t give enough thought on why and how we decide to get involved, and who we send into harm’s way when we do….

What enables this war-friendly philosophy is the fact that there is no military draft to dodge. Our soldiers are signed up and ready to go, so there’s no American public to convince because so few have any skin in the game.

I discussed some of the flaws in Rangel’s argument here. Public opinion data undercuts the notion that people who can’t be drafted are more likely to support war. In addition, the lack of a draft has not prevented majority public opinion from consistently opposing military intervention in Syria.

It’s also worth noting that Rangel is simply wrong in his assertion that there is “no such thing” as limited war. The US has in fact conducted numerous tightly limited wars over the years, including military interventions in Grenada, Panama, Libya, and Kosovo, among others. It’s certainly true that not all wars can be kept limited in this way, and that some military interventions are unwise or unjust even if they are limited. But Rangel’s rejection of the very possibility of limited war is incorrect.

I largely agree with Rangel’s bottom line position on Syria. Like him, I think the US should probably stay out. But not all arguments [...]

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Does it Matter if US Intervention in Syria Violates the UN Charter?

Most international law experts agree that a US military intervention in Syria would violate the United Nations charter, which forbids the use of force against another state except in self-defense or when authorized by a UN Security Council Resolution. In this case, the Assad regime has not attacked the United States, and there is no chance of a Security Council resolution authorizing intervention, because Russia and China would veto it.

Thus, US military intervention would indeed probably violate the Charter. I am skeptical of the case for intervention on other grounds. But if intervention were otherwise justified, US and its allies should not abandon it out of respect for the UN Charter. The Charter’s requirements are procedurally unjust, and there is no reason to believe that adhering to them has beneficial consequences.

I. Procedural Justice.

Sometimes, we have a moral obligation to follow just procedures even if they produce bad results in particular cases. But the Charter’s procedures for authorizing military intervention are deeply unjust. No matter how egregious a regime’s atrocities against its own citizens, it forbids outside intervention unless the intervention has the consent of two brutal authoritarian states: Russia and China. These governments have an obvious interest in curbing intervention against their client states, and also in shielding their own oppression from outside pressure. It is as if domestic law enforcement operations against organized crime required the prior approval of the two most powerful Mafia families. This is not to say that any intervention opposed by the Chinese or Russian governments is necessarily justified. Sometimes, as in the case of Syria, it may not be. But there is no good procedural reason to give these regimes an automatic veto over interventions being considered by liberal democracies.

If the process by which the Security Council makes [...]

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A Hands-Tied Presidency?

In an essay for the NYT Sam Tanenhaus argues that President Obama “holds office at a time when the presidency itself has ceded much of its power and authority to Congress.”  No, really.  This is what he says.  It is, frankly, a rather bizarre claim.  As a great deal of academic work has documented (including an important piece by one Elena Kagan) there has been a distinct trend toward greater executive authority and control over domestic policy.

Tanenhaus notes that Obama, like George W. Bush, has had a difficult time getting major legislation through Congress, particularly in his second term.  Yet it is not as if Congress is pursuing some separate agenda, against the will of the President. Rather, it’s not pursuing any agenda at all.  And congressional abdication — combined with extensive delegation of quasi-legislative authority to the executive branch — has abetted the accumulation of executive power.  Throughout the 1980s and 1990s, Congress regularly adopted all sorts of measures, including appropriations riders, to constrain executive action.  This has been particularly common when Congress was held by the opposition party.  Yet with today’s divided and dysfunctional Congress, relatively little is done to hold the executive in check.  Even arguably illegal executive actions prompt little more than the occasional oversight hearing.

Tanenhaus’ essay is prompted by Obama’s decision to seek congressional approval for intervention in Syria which, he believes “shows a greater deference on war and peace than any president since Franklin D. Roosevelt.”  Really?  The Bush Administration sought Congressional approval for the wars in both Afghanistan and Iraq, did it not?  Admittedly these authorizations were fairly open-ended, but the authorizations were obtained nonetheless.  And lets not forget about Libya.  Not only did the Administration not seek Congressional approval, it also rejected the opinion of this Administration’s own OLC [...]

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Will Obama Order Military Intervention in Syria Even if Congress Refuses to Authorize it?

Although President Obama has asked Congress to authorize the use of military force against Syria, he and other administration officials continue to insist that he has the power to order a strike even if Congress refuses his request. In my view, anything more than an extremely limited operation requires congressional authorization under the Constitution. But President Obama, unlike Senator Obama, clearly doesn’t agree. In 2011, he ordered a military intervention in Libya without even trying to secure congressional support. This raises the question of whether Obama might choose to order an attack even in the face of a hostile congressional vote. At least at the moment, a majority of the House of Representatives seems to be leaning against authorizing intervention. So the issue may turn out to have more than theoretical significance.

Despite the administration’s dubious stance on the constitutional issue, I actually think Obama would probably back down if he can’t get Congress to approve a strike. Launching an attack in the face of explicit congressional opposition would be a very risky move, especially since numerous polls show that public opinion opposes an attack on Syria. If anything goes wrong, Obama would get a huge amount of blame, possibly wrecking his presidency for the remainder of his second term. By contrast, backing down in the face of congressional rejection carries much less political risk, for reasons Jack Balkin has outlined. President Obama is not the sort of politician that often takes major political risks. And I doubt this will be one of those times. One can argue that, as a second-term president, he is likely to be less risk-averse, because he does not face reelection. But even second-term presidents still worry about their historical reputation and the impact of their actions on their parties’ prospects. For [...]

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Senate Foreign Relations Committee Passes Syria AUMF

By a 10-7 vote, the Senate Foreign Relations Committee passed an authorization for the use of military force in Syria today. The AUMF adopted by the committee appears to be similar to the draft I discussed in this post (though I have not yet seen the final text). However, the nonbinding Statement of Policy section of the the AUMF includes two amendments co-sponsored by Sen. John McCain. The key part of the second amendment reads as follows:

(a) It is the policy of the United States to change the momentum on the battlefield in Syria so as to create favorable conditions for a negotiated settlement that ends the conflict and leads to a democratic government in Syria.

(b) A comprehensive U.S. strategy in Syria should aim, as part of a coordinated international effort, to degrade the capabilities of the Assad regime to use weapons of mass destruction while upgrading the lethal and non-lethal military capabilities of vetted elements of Syrian opposition forces, including the Free Syrian Army.”

This amendment was inserted because McCain previously stated he wouldn’t vote for an AUMF if it was only narrowly focused on the need to deter future chemical weapons use. But since it is only part of the nonbinding policy section, it doesn’t actually increase the legal authority granted to the president, a point emphasized by McCain’s co-sponsor, Democratic Sen. Chris Coons. It’s also worth noting that the amendment is somewhat vague. If you take seriously concerns about the radical Islamist nature of many of the Syrian rebels, “chang[ing] the momentum on the battlefield” in a way that helps the rebels could actually undermine rather than further the goal of establishing “a democratic government in Syria.” The reference to strengthening “vetted elements” of the rebel forces in Section b is probably [...]

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Thoughts on the Senate Foreign Relations Committee’s Narrow Version of the Syria AUMF

The Senate Foreign Relations Committee has drawn up its own version of a resolution authorizing the use of military force in Syria, which imposes significantly tighter constraints on the president than the administration version. Here is the key language [SEE IMPORTANT UPDATES BELOW]:

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

(a) AUTHORIZATION-The President is authorized, subject to subsection (b), to use the Armed Forces of the United States as he determines to be necessary and appropriate in a limited and tailored manner against legitimate military targets in Syria, only to: (1) respond to the use of weapons of mass destruction by the Syrian government in the conflict in Syria; (2) deter Syria’s use of such weapons in order to protect the national security interests of the United States and to protect our allies and partners against the use of such weapons; and (3) degrade Syria’s capacity to use such weapons in the future.

(b) REQUIREMENT FOR DETERMINATION THAT USE OF MILITARY FORCE IS NECESSARY- Before exercising the authority granted in subsection (a), the President shall make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that—

(1) the United States has used all appropriate diplomatic and other peaceful means to prevent the deployment and use of weapons of mass destruction by Syria;

(2) the Syrian government has conducted one or more significant chemical weapons attacks;

(3) the use of military force is necessary to respond to the use of chemical weapons by the Syrian government;

(4) it is in the core national security interest of the United States to use such military force;

(5) the United States has a military plan to achieve the specific goals of responding to the use of weapons of mass destruction

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Syria and the Morality of Humanitarian Intervention

Legal scholar Fernando Teson, a leading academic expert on humanitarian intervention has an interesting post on why the humanitarian case for intervening in Syria is weak. Like Fernando, I’m not opposed to such intervention on principle. But it can only be justified if there is a high probability of improving the situation in the targeted nation. In this instance, the case is dubious for reasons Fernando describes:

Some supporters of the proposed intervention in Syria call it a genuine case of humanitarian intervention….

In reply, critics may:

A) Deny the validity of the doctrine itself…., or

B) Accept the doctrine but deny that it can justify the intervention in Syria.

I have long defended the doctrine of humanitarian intervention….. I would like to explain, therefore, why my position on Syria falls under B) above: the military action proposed by the Obama administration (limited aerial bombings) would not be justified under the doctrine. In contrast, a full-fledged intervention that would overthrow Al-Assad while neutralizing Al-Qaeda could be justified under the doctrine if it complied with the principle of proportionality. Given the predictable dire consequences of a full invasion for the region and the world, such action is unlikely to be proportionate, and therefore the United States should stay out…

For starters, the proposed action is caught in a dilemma. Either the bombings will weaken the regime or they will not. If they do, they will help Al Qaeda win. The (putative) humanitarian action will predictably open the door for something much worse for the Syrians and the world. If instead the bombings do not weaken the regime, they would have served no purpose and would have been therefore impermissible under the humanitarian intervention doctrine, especially given the fact that the bombings would have killed innocent persons for no reason.

As I [...]

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