The Volokh Conspiracy

The Obama administration memo on targeted killing has drawn an enormous amount of commentary, much of it hostile. To my mind, a lot of the criticism is overblown because it doesn’t give enough consideration to the fact that the memo’s rationale for targeted killing is strictly limited to American citizens who are “senior operational leader[s] of al-Qa’ida or an associated force.” On the other hand, there is a very troubling issue that the memo does not address: Who decides whether a potential target qualifies as a senior operational terrorist leader, and how much evidence does he need to have?

I. Al Qaeda Leaders Are Legitimate Targets.

Many critics, such as Gerard Magliocca and Conor Friedersdorf focus on the weaknesses of the memo’s three additional requirements for a targeted killing of a US citizen: that “(1) an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the United States, (2) capture is infeasible and the United States continues to monitor whether capture becomes feasible, and (3) the operation would be conducted in a manner consistent with applicable law of war principles.” Gerard, for example, argues that “[t]he White Paper says that a citizen is eligible for death-by-drone when ‘an informed, high-level, official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.’ In my opinion, this threshold is too low.” But the “imminent threat” test applies only to people located outside the United States who are “senior operational leaders of al-Qa’ida or an associated force,” not to just anyone who “an informed...official” believes to be a threat. In other words, the requirements that the target pose an “imminent threat” and cannot be captured are in addition to the requirement that he be a senior leader of Al Qaeda or one of its “associated forces.”

Once this key point is recognized, many of the objections to the memo are weakened. In wartime, the individualized targeting of an enemy commander is surely both legal and moral. And the US is presently at war with Al Qaeda and its allies. If it is permissible to individually target a uniformed enemy officer, such as Japanese Admiral Yamamoto in World War II, it is surely permissible to do the same to the leader of a terrorist organization. Indeed, it would be perverse if terrorist leaders enjoyed greater protection against targeting than uniformed military officers. Unlike the latter, terrorists don’t even pretend to obey the laws of war and they deliberately endanger civilians by choosing not to wear distinctive uniforms.

This analysis does not change if the targeting enemy leader happens to be a US citizen. Surely the targeting of Admiral Yamamoto would not have become illegal or immoral if he had acquired US citizenship while living in the United States during the 1920s. Similarly, it was surely permissible to target Yamamoto even if the US did not have any proof that he was planning “imminent” military operations against US forces. The fact that he was a top enemy commander in an ongoing war is enough. Similarly, it would make no difference if Yamamoto or other Axis leaders were operating from the territory of an officially neutral nation that supported them or was unable to stop them. They would still be legitimate targets there.

Finally, it is important to remember that banning or severely limiting targeted killing won’t necessarily reduce civilian casualties and could easily increase them. Conventional military operations aimed at larger groups of enemy combatants are more likely to result in the death of innocent bystanders than targeted killings which apply smaller and more precise levels of force. If targeted killing is banned or severely constrained, officials will rely more heavily on conventional operations, thereby likely increasing civilian casualties.

II. Who Determines Whether You are a Senior Al Qaeda Leader and How Much Evidence do they Need to do it?

So far so good for the Obama administration. Unfortunately, however, identifying Al Qaeda leaders is a far more difficult task than identifying enemy officers in a conventional war. Precisely because terrorists don’t wear uniforms and often don’t have a clear command structure, it’s easy to make mistakes. And where US citizens are involved, there is the danger that the government will target someone merely because that person is a political enemy of the current administration. Even if officials are acting entirely in good faith, there’s still a serious risk that innocent people will be targeted in error. The Obama memo doesn’t even consider the question of how we decide whether a potential target really is a terrorist leader or not. But that is in fact the key issue.

The problem is not an easy one. On the one hand, war cannot wait on elaborate judicial processes. And we cannot give a potential target an opportunity to contest his designation in court without tipping him off. On the other hand, it is dangerous to give the president and his subordinates unconstrained power to designate American citizens as “terrorist leaders” and then target them at will.

One possible solution is requiring officials to get advance authorization for targeting a US citizen from a specialized court, similar to the FISA Court, which authorizes intelligence surveillance warrants for spying on suspected foreign agents in the United States. The specialized court could act faster than ordinary courts do, and without warning the potential target, yet still serve as a check on unilateral executive power. In the present conflict, there are actually very few high-ranking terrorist leaders who are US citizens. Given that reality, we might even be able to have more extensive judicial process than exists under FISA. Alternatively, one can envision some kind of more extensive due process within the executive branch itself. But any internal executive process has the flaw that it could always be overriden by the president, and possibly other high-ranking executive branch officials.

Whether the decision is made with or without judicial oversight, there is an important question of burden of proof. How much evidence is enough to justify classifying you as a senior Al Qaeda leader? The administration memo doesn’t address that question either.

I honestly don’t know what the optimal institutional structure here would be. But we should aim for one that provides a check on executive discretion without miring the process in prolonged litigation that makes it impossible to conduct operations in “real time.”

Like Gerard Magliocca and Jack Goldsmith, I hope Congress enacts a framework statute regulating the use of targeted killing, including appropriate procedural safeguards. But I am skeptical that Congress will actually do that anytime soon. Most of the general public is either ignoring the issue or actually happy with the status quo. And there are few if any powerful interest groups lobbying for change either. Congress is unlikely to wade into this swamp just to satisfy law professors and civil libertarians. Unfortunately, it may take a highly visible disaster – such as the deliberate targeting of an obviously innocent person – to get Congress to act.

Co-Conspirator Jonathan mentioned posts at Lawfare blog discussing the Drone White Paper that has been much in the news along with notice that the Awlaki OLC memo will be shared with Congress, and all  with the Brennan hearings for CIA director.  I have added a post at Lawfare that Volokh readers might find interesting; it points out that one of the much commented issues of the White Paper, the question of “imminence” as a condition of attacking in self-defense, actually has a long history in US law and policy.  At least since the early 1980s, the US has embraced a standard of “active self-defense,” as I note at Lawfare.  Here, for example, is a statement of it in 1989 by then-Department of State Legal Adviser Abraham Sofaer, in an interagency cleared speech, and which references statements by then-Secretary of State George Shultz:

Some States, such as Lebanon, are simply unable to exercise authority over terrorists, even if they were inclined to do so. The United States must be free to utilize force with sufficient flexibility to defend itself and its allies effectively against threats resulting from such breaches of international responsibility. As Secretary of State George P. Shultz predicted in 1984: “We can expect more terrorism directed at our strategic interests around the world in the years ahead. To combat it, we must be willing to use military force.” ….

In 1984 Secretary Shultz described this policy as an “active defense.” “From a practical standpoint,” he said, “a purely passive defense does not provide enough of a deterrent to terrorism and the states that sponsor it.” Later that year he described why an active defense was needed to deter:

“We must reach a consensus in this country that our responses should go beyond passive defense to consider means of active prevention, preemption, and retaliation. Our goal must be to prevent and deter future terrorist acts, and experience has taught us over the years that one of the best deterrents to terrorism is the certainty that swift and sure measures will be taken against those who engage in it. We should take steps toward carrying out such measures. There should be no moral confusion on this issue. Our aim is not to seek revenge but to put an end to violent attacks against innocent people, to make the world a safer place to live for all of us. Clearly the democracies have a moral right, indeed a duty, to defend themselves.”

The Pentagon’s recent decision to open up combat roles to women has led legal scholar Gerard Magliocca wonder whether our current system of male-only draft registration is still constitutional. Conservative commentator Dave Carter predicts that the courts will rule that it is not, and women will be made subject to the draft.

In the 1981 case of Rostker v. Goldberg, the Supreme Court upheld the constitutionality of male-only draft registration in part because women were barred from combat roles, and female draftees are therefore less valuable to the military than male ones would be. In the thirty years since then, more and more combat roles have been opened up to women, and the Pentagon’s most recent decision is likely to eliminate most if not all remaining gender-based restrictions. So that rationale for a male-only draft is undercut.

But then-Justice William Rehnquist’s majority opinion also relied heavily the courts’ “lack of competence” on national security issues and the consequent need for “healthy deference to legislative and executive judgments in the area of military affairs.” That deference might justify upholding male-only draft registration even if all or most combat positions are open to women. The federal government could argue that, in the expert judgment of the military, few women have the strength and endurance needed for many combat positions, even if they are not categorically barred from them. Thus, female draftees might still be less useful to the military than male ones. A court applying “healthy deference” might choose not to contest that assertion.

Lower courts applying Rostker could therefore still conclude that male-only draft registration is constitutional, though Rostker is ambiguous enough on the amount of deference due that the issue is not a slam dunk. If the issue gets to the Supreme Court however, I’m far from certain that Rostker wouldn’t be overruled or severely limited. As compared with 1981, the idea of women serving in combat is far more widely accepted by both elite and public opinion. And sex discrimination in draft registration is likely to seem like an outdated relic of the days when women were barred from numerous positions in the military. If the Pentagon sticks to its new policy on women in combat, I think it’s likely that some male plaintiff will bring a new challenge to the selective service registration system, and that plaintiff will have a good chance of succeeding. Like most other constitutional law scholars, I think that Rostker was a dubious decision, and would not shed many tears if it were overruled. For reasons outlined by Steven Calabresi and Julia Rickert, there is also a good originalist case for courts’ taking a strong line against sex discriminatory laws.

Even if Rostker is overruled, it does not follow that women will ever actually be drafted or that such a draft would be constitutional. Elsewhere, I have argued that a draft of any kind violates the Thirteenth Amendment’s ban on involuntary servitude, and that the Supreme Court’s 1918 decision upholding the draft against a Thirteenth Amendment challenge is poorly reasoned and badly misguided, as was a 1916 precedent upholding a Florida law requiring able-bodied male citizens to perform forced labor on public roads. For reasons I outlined here, I am not much moved by arguments that, in some extreme cases, a draft might be the only way to ensure national survival.

I doubt that the Supreme Court will overrule these decisions in the near future. But even if it doesn’t, we are unlikely to see the reinstatement of the draft. Conscription is gradually declining around the world because it is both unjust and inefficient, and tends to degrade the quality of armed forces that rely on it. The public, some 80% of recent veterans, and most political elites oppose the return of the draft in the US. Ultimately, the best way to ensure that women will never be drafted is to not have a draft at all. Men and women should be allowed to serve in the military on an equal basis, but neither should be forced to do so.

The Geneva Convention is generally thought to apply to Israel’s occupation of the West Bank – that portion of the League of Nations Mandate for Palestine previously occupied by the Jordan. This is important because the legal argument against settlements is that they violate Art. 49(6) of the Fourth Geneva Convention, a provision which did not reflect prior international law.

Art. 2 of the Convention provides:

In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Because the West Bank was not part of the sovereign “territory of a High Contracting Party” (or of any country) in 1967, and Israel has argued that “occupation” within the meaning of the Convention can only exist in such territory. Of course, most international lawyers disagree, though in the years after 1967, some very prominent ones agreed.

What is more interesting is what people thought the provision meant before 1967, that is, before they knew the identity of the alleged violator. There is very little written on this, and few have looked at pre-1967 sources. However, one quite serious (pro-Israel) blogger has unearthed this intriguing discussion from Hans Kelsen in 1952, which clearly does not assume that the occupation of non-sovereign territory has the same consequences as the occupation of sovereign territory:

The principle that enemy territory occupied by a belligerent in course of war remains the territory of the state against which the war is directed, can apply only as long as this community still exists as a state within the meaning of international law. This is hardly the case if, after occupation of the whole territory of an enemy state, its armed forces are completely defeated to that no further resistance is possible and its national government is abolished by the victorious state. Then the vanquished community is deprived of one of the essential elements of a state in the sense of international law: an effective and independent government, and hence has lost its character as a state. If the territory is not to be considered a stateless territory, it must be considered to be under the sovereignty of the occupant belligerent, which—in such a case—ceases to be restricted by the rules concerning belligerent occupation. This was the case with the territory of the German Reich occupied in the Second World War after the complete defeat and surrender of its armed forces. In view of the fact that the last national government of the German Reich was abolished, it may be assumed that this state ceased to exist as a subject of international law.

There is a lot of research to be done in this vein. I recently came across a discussion in the U.N.’s International Law Commission from 1950, as part of the drafting of the Draft Declaration on Rights and Duties of States. There were quibbles from countries such as France about whether annexation is always banned, or whether there might be various exceptions.

In response, the Secretary observed: “It might be suggested that in order to constitute a crime under international law an annexation must be carried out through the use of armed force, with a view to destroying the territorial integrity of another State.” [See I Yearbook of Int. Law Comm. 137 (1950).]

Indeed, it was not surprising that there was some confusion and concern about the extent of an annexation norm, since as the delegates admitted, there were some “frontier adjustments” made by the Allies after WWII.

If the Pentagon’s recent decision to open up combat positions to women leads conservative Dave Carter to worry that women will be drafted, liberal Democratic Rep. Charles Rangel embraces the idea and calls for the establishment of a draft that applies to both men and women:

Since January 2003, at the height of the debate on the possible unilateral strike against Iraq, I have advocated for a reinstatement of the military draft to ensure a more equitable representation of people making sacrifices in wars in which the United States is engaged....

Currently the burden of defending our nation is carried by less than 1% of the American population. The 2.2 million members of the armed forces in active duty, the National Guard and the Reserve have become a virtual military class that makes the ultimate sacrifice of laying down life and limb for our country....

Since we replaced the compulsory military draft with an all-volunteer force in 1973, our nation has been making decisions about wars without worry over who fights them. I sincerely believe that reinstating the draft would compel the American public to have a stake in the wars we fight as a nation. That is why I wrote the Universal National Service Act, known as the “draft” bill, which requires all men and women between ages 18 and 25 to give two years of service in any capacity that promotes our national defense.

Rangel’s equality argument for the draft is dubious. If we reinstate the draft, it would still be true that only a small percentage of Americans would ever actually serve in combat during wartime and take the risk of “making the ultimate sacrifice.” Even during World War II, only about 16 million Americans served in the armed forces out of a population of 132 million in 1940. And only a minority of the 16 million served in combat positions. Under Rangel’s proposal, the burden of combat duty would still fall on a very small fraction of the population: those unlucky enough to be between the ages of 18 and 25 whenever a war happens to occur. The big difference is that the small group that bears the burden will be selected by force rather than choice. Coerced inequality is no improvement over inequality created by voluntary choice. At least in the latter case, the government has a strong incentive to adequately compensate servicemembers for the risks they take, if only because they would face manpower shortages otherwise. Unequal risk of death is partially offset by extra pay and benefits and by the attractions of military life to those who find it appealing. Draftees get far less in the way of compensation for the inequality imposed on them.

Rangel’s view that the public would be more reluctant go to war with a draftee military is also questionable. During the Vietnam War, young men eligible for the draft actually supported the war at higher rates than other demographic groups. Today, veterans support the wars in Iraq and Afghanistan at higher rates than the general public, and post-9/11 veterans who actually served in combat are more supportive than those who didn’t. The evidence is not completely one-sided. Some recent experimental data suggests that a draft might reduce public support for war after all. Overall, however, we don’t yet have enough evidence to show that the impact of the draft on public support for war is an exception to the general rule that there is little causal connection between public opinion on political issues and narrow self-interest.

Even if the establishment of a draft would make the public less willing to go to war, it is not clear that this would be an improvement. One can certainly point to cases where public opinion was too willing to fight. But there are also plenty of examples of the opposite problem, such as the period leading up to World War II, or the period right before 9/11, when both the public and political elites were too slow to act against the threat posed by radical Islamist terrorism.

Finally, Rangel simply ignores all the major downsides of the draft, such as its tendency to reduce the quality of the military, its economic inefficiency, and the incentive it creates for governments to squander lives. Most of all, Rangel doesn’t take seriously the moral costs of the draft. Subjecting millions of people to two years of forced labor is a severe infringement of liberty that can only be justified, if at all, by some truly enormous good that cannot be achieved by less draconian means.

As I have explained elsewhere, I am not opposed to the draft under all conceivable conditions. If, for example, having a draft were the only way to avoid getting conquered by an enemy that would impose a totalitarian state on us, I would support it. The draft is a great evil. Still, there can potentially be situations where it is the only way to stave off an even greater one. But the arguments advanced by Rangel and other modern draft supporters don’t even come close to meeting the burden of proof needed to justify such massive coercion.

UPDATE: A point I made in an earlier post on conscription is relevant here as well:

Many people resist the comparison between conscription and other forms of forced labor because they see military service as providing a great good that is essential to our society. But military service is far from unique in that regard. Historically, slaves and forced laborers often performed work that was vital to the social order. The entire economy of the antebellum South depended on crops produced by slaves. So too with ancient Rome, Russia in the era of serfdom, and so on. The key point to realize is that this work, however noble and necessary, can be performed by free laborers. Thus, the use of forced labor to carry it out is still unjust. The same goes for military service. Both the United States and other liberal democracies can field more than adequate military forces without conscription. Indeed, they can create better armies without it than with it.

The Pentagon’s recent decision to abolish most restrictions on women serving in combat leads conservative commentator Dave Carter to worry that women will now be subject to the military draft:

It was 22 or 23 years ago, I think, that I wrote in the Air Force Times a cautionary article on the combat exclusion that prohibited women from joining front line combat units. My concern then, as now, was that lifting the combat exclusion would removed the only remaining barrier to our daughters, wives, moms, and sisters being eligible for a military draft....

In 1982, the Supreme Court ruled in Rostker v. Goldberg, that the requirement for males to sign up for Selective Service was constitutional precisely because women were excluded from serving in front line combat units. “The court ruled that the Selective Service process is designed to assemble combat-ready people, and right now women are excluded from combat arms,” said Professor Anne Coughlin, of the University of Virginia School of Law in Charlottesville. “Therefore,” she said, “they can’t participate in the very thing that the draft is for.” But that was then. Now, retired Colonel Peter Mansoor, a former US Army brigade commander and veteran of two tours of duty in Iraq, currently a professor of military history at Ohio State, says, “If women are acceptable to serve in combat, they are acceptable to serve whether they volunteer or not. You can’t have the frosting on the cake and not the cake underneath....”

It speaks volumes that the party of young men who once gleefully burned their draft cards has degenerated into the party of old men who declare their daughters and granddaughters eligible for the draft. But to do so in Orwellian tones of, “…moving forward with a plan to eliminate all gender-based barriers to service,” adds injury to insult....

Personally, one of the reasons I spent 20 years in uniform and volunteered to go to very unpleasant places was so that my daughter, my sisters, my mother and grandmothers might never have to taste the bitter cup of life under such inhumane and inhuman conditions. It seems now that my service in that regard might have been squandered.

Carter’s military service is admirable. But his logic in this post is far from compelling. The obvious way to avoid drafting women is to not have a draft at all. For reasons I summarized here, conscription reduces the quality of the military, is economically inefficient, and makes it more likely that military commanders will squander lives in wartime. In addition, it is a form of forced labor that severely infringes on individual liberty. Carter is absolutely right that we should not force women to “taste the bitter cup of life under such inhumane and inhuman conditions.” We shouldn’t force men either.

Furthermore, opening up combat positions to women increases the potential pool of volunteers for the military, and thereby actually reduces the likelihood that we will ever need a draft. Perhaps only a very small percentage of women will have both the ability and the desire to serve in combat. But in a nation of 300 million people, that very small percentage might still amount to a significant number of troops in absolute terms.

I can imagine hypothetical cases where having a draft may be justified because it is the only way to avoid conquest by a totalitarian enemy that will impose even greater violations of liberty than the draft itself. In the real world, however, abjuring the draft both promotes freedom and improves the quality of the military.

In the highly unlikely event that such an extreme case were to arise, I don’t see the justice of limiting the draft to men. It is true that female draftees might face terrible risks. But that’s also true of men. Male POWs have been raped, tortured, and otherwise abused by our enemies, just as women have. Think of John McCain’s experiences in the Hanoi Hilton.

It may well be that a much smaller percentage of women than men have the physical strength and endurance needed for some combat jobs. But when a draft is justified at all, that statistical variation is no reason to exclude those women who do meet the required physical standards. If members of a particular racial or ethnic group are, on average, smaller and weaker than members of other groups, that is no justification for categorically excluding all members of that group from draft eligibility. The same point applies to women.

UPDATE: In the original version of this post, I accidentally failed to include a link to the post by Dave Carter to which I am responding. I have now corrected that mistake.

UPDATE #2: A commenter asks whether I support abolition of today’s male-only system of selective service registration. Indeed, I do. Since I oppose the draft, I also oppose mandatory draft registration. In the highly unlikely event that a draft will ever be justified in the foreseeable future, I believe registration should apply to men and women equally.

In this interesting exchange from John Kerry’s confirmation hearings for the position of Secretary of State, Republican Senator Rand Paul presses Kerry on the contradiction between his longstanding view that President Richard Nixon’s bombing of Cambodia during the Vietnam War was unconstitutional because it lacked congressional authorization, and his defense of President Obama’s 2011 bombing of Libya, which also lacked congressional approval. Kerry first became nationally famous as an opponent of the Cambodia bombings and the Vietnam War generally in the early 1970s.

Kerry’s efforts to distinguish the two cases are far from successful. He claims that the Libya intervention was legal because of the need for swift, decisive action. But of course Nixon could and did make the same argument. Paul correctly points out that the Constitution gives the power to declare war exclusively to Congress and does not create any exceptions for cases where presidents believe that they need to act quickly. Moreover, as Allahpundit points out, the president actually had plenty of time to seek and gain congressional approval before he started the bombing, as he spent weeks mobilizing support from the United Nations, our European allies, and others.

If anything, there is a much stronger case for the constitutionality of the Cambodia bombing than for the Libya intervention. The Cambodia bombing was brought on by the fact that North Vietnamese and Viet Cong troops were using the country as a staging area for their operations in the Vietnam War, which Congress had authorized in the 1964 Tonkin Gulf Resolution. If enemy forces in the course of a war authorized by Congress use a neutral country’s territory, the president has the authority to order strikes against them without seeking further congressional authorization. If, for example, German forces had operated from Spanish or Swiss territory during World War II, FDR could have legally ordered air strikes against them without additional congressional action. Similarly, almost everyone agrees that President Obama had legal authority to order strikes against Osama Bin Laden and other Al Qaeda members in Pakistan, even though Congress never specifically authorized incursions into that country, which like Cambodia in 1970, is at peace with the United States. I am very far from being a fan of Nixon. But when it comes to Cambodia, he had a pretty good legal argument.

By contrast, there were no hostile forces using Libyan territory to attack the United States when Obama ordered his air strikes in 2011. If, as I believe, this was a military action large enough to qualify as a war, it required congressional authorization.

I previously wrote about the constitutionality of the Libya intervention here, here, here, and here.

UPDATE: I recognize that it’s easy to find similar self-contradiction by Republican politicians, including those who claimed that the War Powers Act is unconstitutional, only to later attack Obama for violating it in the case of Libya. But that doesn’t justify Kerry’s position.

UPDATE #2: Rand Paul also correctly pointed out that Obama’s defense of the Libya intervention contradicted his 2007 statement that “[t]he President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” Like Paul, I think candidate Obama was closer to the truth in 2007 than President Obama in 2011.

France is fighting a rather serious war in Mali. What does international law say about this go-it-alone incursion into a foreign country? Given the controversy over recent interventions with mixed motives, such as the U.S. war in Iraq, it is worth consider the international legal basis for the assault and its conduct.

I. Security Council Resolution.
France has invoked the U.N. Security Council Res. 2085, passed on Dec. 20th, as the basis for their intervention. However, this is not so simple. Yes, the Council did use its Chapter VII authority to “authorize the deployment” of foreign forces to Mali – just not French force. Rather, the entire resolution is about green-lighting the African-led International Support Mission in Mali (AFISMA), a ECOWACS effort. France is not part of AFISMA, or of ECOWACS. Only AFISMA is authorized to “support the Malian authorities in recovering the areas in the north of its territory under the control of terrorist, extremist and armed groups.” (Par. 9b).

As for other U.N. member states, the resolution merely calls on them to provide logistic, training and other kinds of “support” to the ECOWACS mission (par. 14). France is not providing support, it is taking the lead role in direct combat operations. Indeed, it jumped in before AFISMA got there, because it judges the U.N. authorized African effort would be too little, too late.

Alas, an authorization by one group of countries to intervene is not a carte blanche to all interested parties, and we will have to look elsewhere for France’s authority. One should add that this aggressive reading of UN resolutions is a bit ironic given France’s criticism of US readings of resolution before the Iraq War.

II. Third-party defense: Mali’s invitation.
France’s use of force in Mali is a lot less troublesome because it was done at the invitation of the government of Mali. Every nation has the inherent right of self-defense, recognized by Art. 51 of the U.N. Charter; the charter also allows states to come to the defense of others. This kind of thing should raise no eyebrows.

There are two wrinkles in the current situation worth mentioning. First, the Malian leadership was, at least until France’s invasion, not recognized by the international community, or France for that matter, as the country’s constitutional government. Last March, a group of soldiers lead by junior officers overthrew the democratically elected government. The action met with broad international condemnation. France, for example, proclaimed that it “condemns this forceful overthrow of the constitutional order in the strongest possible terms. It calls for the restoration of the constitution and institutions.” The military junta agreed to put in a puppet prime minister for to head an interim government pending elections, easing some international concerns. But then the army sacked the new interim prime minister in December, in what I would call a “re-coup.”

Indeed, the ECOWACS forces were first being sent to Mali to topple the government they are now coming to assist. The dubiousness of the government may be way France makes its weak Security Council resolution claim.

France is of course free to recognize anyone it wants as the legitimate government of Mali, and one does not need to be to “legit” to be a legitimate government. I do not know the status of EU, French or US relations with the government. But it is at least not fully satisfying if the invasion of Mali, and bombardment of its cities at the risk of innocent casualties, is authorized by a new half-baked junta. We wouldn’t want that to become a rule, to put it mildly.

There is a further wrinkle: France is helping Mali against an internal threat. The International Court of Justice, however, ruled that “self defense” within the meaning of the UN Charter only applies to foreign invasion. Now of course it said that in an advisory opinion which in no way binds France, or any other country. Moreover, it was the opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, so the reasoning was probably of a very sui generis kind (and was criticized as such by Judges Buergenthal and Higgins).

III. Self-defense.
France has also described the action as one of its own self-defense. The defense minister has said that they were acting quickly to prevent the creation of “a terrorist state at the doorstep of France and Europe.” Of course, this would expand the concept of anticipatory self-defense beyond any broad contours suggested for it, and should probably not be understood as a legal justification, rather than an explanation of why it choose to intervene in this former colonial conflict, and not, say, the much bloodier one in its former colony of Syria.

IV. Conclusion.
Whatever reservations one might have about the legitimacy of the Malian military-run government, they do appear to be the de fact authority in the country to the extent there is one. Certainly in the absence of protest by any other claimants to official authority, French action does not seem to violate international law in any formal way. However, its invocations of Security Council resolutions and self-defense are as spurious as superflous.

NEXT WEEK: Hopefully some discussion of France’s use of force, especially given it is conducting operations against ununiformed combatants in civilian population centers. I would like to know more about the extent of civilian casualties, but doubt there will be an international inquiry.

I’m delighted to see Rick Pildes will be guest-blogging, and the exchange with Nick on the Treaty Power will be a treat.

I would invited them to consider an aspect of the question that has long interested me:
What is the relationship between the Offenses Power, the Treaty Power, and the Foreign Commerce power? All three might overlap at their edges (assuming they are not entirely congruent), and the extent of the overlap would say a lot about the extent of the other powers. If for example, the Foreign Commerce power is even broader than the Interstate one, then the scope of the treaty power becomes even less important.

Hamilton, as I’ve mentioned before saw the Treaty Power as in some ways ways being not coterminous with the Foreign Commerce power, and my understanding of the Offenses Power has always been that it was distinct from the Treaty Power. An example of how such delimitations might matter would be whether the courts can consider, as they sometimes do, unratified treaties in determining the “Law of Nations.”

UPDATED with minor edits.

Continuing the analysis of possible Art. I authority for applying the Material Support of Terrrorism statute to three Somali nationals fighting on behalf of al-Shabab in Somalia, with no identifiable link to the U.S. – other than being brought here for trial.

War Powers
The U.S. is not at war with Shabab. They are at war with our pals, Somalia’s notional Transitional government, in a civil war to which we are not a party. It is important to distinguish enemies in the “really hate” sense to war in the constructive or declarative sense.

True, Shabad has aligned itself with Al-Queda. Do the War Powers allow banning anyone in the world from fighting in a conflict to which the U.S. is not a party, but on behalf of a force sympathetic or allied with forces hostile to the U.S.? I don’t know, but my first reaction is that is a stretch. By such logic one could say that the ACA, by making healthier Americans, would make for better soldiers.

Note how this discussion recapitulates government’s move in Hamdan II: first it the argued “material support” rule was an exercise of Offenses Clause powers, then in last minute downgraded D&P to second-stringer, and brought out the general war powers for Art. I support.

With the Supreme Court having declared a limit on the Commerce Clause, the Treaty Power may remain the broadest, least defined governmental power. I do not think general treaties denouncing terrorism would be enough; they specifically do not do what the U.S. wants to do here – establish universal jurisdiction over the crime. Much easier would be to sign a quick executive agreement with the nominal government of part of Somalia, over which the U.S. presumably has a lot of control as it struggles between being nominal and dead.

To be sure, a non-treaty treaty with a non-governing government could be an illustration of the possible excesses of the Treaty power as broadly interpreted. But it might serve the government in a pinch.

Protective Jurisdiction
Assuming their is an Art. I basis, one might ask whether this application of the law would be consistent with international law. Lacking a universal jurisdiction crime, the next fall-back would be “protective jurisdiction.” Definitions of the protective principle require the acts to be “directed against the security of the state” or certain core interests (Restatement). Classic examples have a tight nexus: espionage, counterfeiting. Designation as a foreign terrorist, on the other hand, only requires a determination that the group “threatens” the national security of U.S. or its nationals. I don’t think “threaten” in this context requires any particular intent. Moreover, posing some danger to some U.S. nationals overseas would probably not qualify for the invocation of the protective principle either.

The government is prosecuting three foreigners for the participating in “combat operations” in a foreign civil war.

The indictment apparently alleges no connection to America, or even foreign commerce (unlike a similar 2011 case that lacked an apparent connection to the U.S.) The defendants are Somalis who fought in Somalia. In a previous post, I discussed why the prosecution exceeds’s Congress’s Define & Punish powers; here we’ll consider other possible Art. I grounds. Today – the Foreign Commerce Clause; later today, War and Treaties. Tomorrow: additional thoughts about American exceptionalism in universal jurisdiction.

Foreign Commerce Clause
My previous post focussed on the Define & Punish Clause as the basis for the MST law; today, we will examine some other suggestions. I addressed the Define & Punish clause first because it is the first Art. I power Congress cited in its “findings” in support of the section. (sec. 301(a)(2) of the public law). Later, the findings do suggest the Commerce powers as a tertiary rationale: terrorism discourages travel from the U.S. to affected country, and vice versa. It also mentions general harm to “market stability.” This sounds a lot like the arguments rejected by the Supreme Court in U.S. v Morrison . Surely Congress’s can’t regulate any crime anywhere in the world just because it upsets things. The commerce argument is even weaker here: if someone moves out of their state because of violence against women, they presumably move to another U.S. state. But if they move from Somalia, they do not presumably move to the U.S.

The connection to U.S. commerce would have to be shown. In the one prior universal jurisdiction “material support” case, Ahmed , the government claimed in the indictment, without providing specifics, that it could show real links to commerce. The district judge accepted that as sufficient for starters [in an unpublished opinion, 2011 WL 5041456]. The present indictment says nothing about foreign commerce.

The Supreme Court has said little about the scope of the power. As a textual matter, the foreign commerce power does not allow Congress to simply regulate “foreign commerce,” but rather that part of it which is “with” the United States. It is not clear that the same kind of “foot-bone-is-connected to the ankle bone” games can be played with the Foreign Commerce clause as with the domestic on. Andrew Colangelo, in the leading article on the subject, argues that it requires a substantial U.S. nexus. Indeed, without that, the Constitution would have incorporated broad universal jurisdiction, without anyone knowing about it until now!

If the Foreign Commerce clause is enough here, it would mean several recent federal cases finding no universal jurisdiction over drug trafficking and piracy conspiracy case were wrongly decided: surely those things are linked to foreign commerce in the most general sense.

One can imagine a broader argument that the terrorist group designation is a regulation of foreign commerce, and the material support statute “necessary and proper” to that. And that would turn on the particular group and executive finding...

Some have suggested that the Foreign Commerce Clause should, on the contrary, be broader than the Interstate clause, because there is no background principle of federalism to protect. I see the point, but am hesitant for two reasons.

First, Congress is a government of limited and delegated powers. It can only have powers to regulate conduct anywhere in the world with no demostrable nexus if these were either preexisting powers of states, or somehow a natural emergent power of national sovereignty. I think neither is the case. The latter point can be seen from the fact that no other country exercises universal jurisdiction over this kind of thing...

Second, while Foreign Commerce authority is not concurrent with states, it is shared with other countries, whose existence and sovereign competency the Framers were aware of. Consider Hamilton’s discussion of the Foreign Commerce power (Camillus XXXVI):

Congress (to pursue still the case of regulating trade) may regulate, by law, our own trade and that which foreigners come to carry on with us; but they cannot regulate the trade which we may go to carry on in foreign countries; they can give to us no rights, no privileges, there. This must depend on the will and regulations of those countries; and, consequently, it is the province of the power of treaty to establish the rules of commercial intercourse between foreign nations and the United States. The
legislative may regulate our own trade, but treaty only can regulate the national trade between our own and another country

In the next few days, I’ll discuss possible sources of Art. I authority for the the federal prosecution of three foreigners for fighting on the side of al-Shabab in Somalia, and brought forcibly to the U.S. for trial. Previously, I’ve argued that this prosecution cannot be sustained under the Offenses Clause. But first lets put this in historical and political context.

The use of the material support statute to prosecute foreign fighters in foreign wars is certainly novel, but it has a a historical cousin, which highlights the unusualness of the present prosecution in Brooklyn.

The Neutrality Proclamation of 1793, and subsequent Act, banned Americans from participating, or providing what we might call material support, to the belligerents in the Napoleonic Wars. The idea was such involvement could drag the U.S. into the war. The measures were extremely controversial, leading to the Pacificus-Helvedius debate between Hamilton and Madison. One of the secondary questions was the source of constitutional authority: it was variously placed in what I’d call the “dormant war power” – violations of neutrality by citizens undermined Congress’s prerogative of choosing our wars – or various treaty obligations to the particular warring states. Foreign commerce would do too. (I discuss the Art. I basis for the law in Part II.D.2 of this new article.)

The extraterritorial application of the Material Support statute to foreigners engaged in foreign wars essentially applies the Neutrality Act to the world. Not only must Americans stay of the of designated conflicts, everyone else must to. Of course, the effect is the opposite of the Neutrality Act: instead of distancing the US from foreign wars, it imports them into U.S. court rooms.

It is interesting to note that two of the men have Swedish citizenship, and the third had British citizenship. He became a news item last year when the U.K. revoked his citizenship shortly before his mysterious disappearance in Africa. He only reappeared in Brooklyn federal district court.

Given the lack of protest by Sweden, and the citizenship-stripping by Britain, one might think they are happy/complicit about the U.S. prosecution. I’ve noted before the process of “Goalization,” how countries transfer pirates to African countries with less cumbersome justice systems – a kind of cheapest-justice-provider. Apparently the European governments were watching these Islamist fighters for a while but couldn’t move against them. So maybe transferring terror suspects to the U.S. for trial is the European version of America’s sending them to Egypt or Iraq...

A few days before Christmas, the U.S. indicted three men at the Federal District courthouse in Brooklyn for plotting suicide bomb attacks. This is an extraordinary, almost unique case: none of the people or conduct has any connection to the U.S. The defendants are foreign nationals, captured by some African government ont their way to join up with al-Shabab, the Somali Islamist group. To be clear, there is no suggestion that they planned to target American nationals or facilities, or had even ever been to this country before.

This is an aggressive – and unconstitutional – assertion of universal jurisdiction. The U.S. is prosecuting foreign nationals for their participation in a foreign civil war. Congress, as the Supreme Court recently reminded us in the Health Care decision, is truly one of limited regulatory powers, and thus the first question about such a case is what Art. I power gives Congress the power to punish entirely foreign conduct with no U.S. nexus.

The men have been charged under the “material support for terrorism” statute, 18 USC 2339B . Apart from the many controversies about the substantive sweep of the law, it casts a very broad jurisdictional net. By its terms, it applies to foreigners who support designated foreign terror groups with no connection to the U.S. In other words, it makes terrorism anywhere a federal offense.

While the statute has previously been used to prosecute extraterritorial conduct by foreigners that conducted significant dealings in the U.S., this is only the second apparently “universal” prosecution.

The Art I. authority for prosecuting conduct under universal jurisdiction is the “Define and Punish” clause. Yet the clause limits universal jurisdiction to crimes, like piracy, that are i) “offenses against the law of nations,” and ii) treated as universally cognizable by the law of nations. Congress cannot “define” something as a universal offense when the law of nations has not done so – not because of any superiority or comity of international law, but because that is the limit place by the Define and Punish Clause.

I have elaborated this theory of the Define and Punish Clause and its implications in a series of recent papers.

More importantly, recently several federal courts have adopted this position.
Thus in U.S. v. Bellaizac-Hurtado, 700 F.3d 1245 (2012), the 11th Circuit held unconstitutional a universal jurisdiction prosecution of drug trafficking in a foreign country. It held that drug trafficking had not been recognized as a “offense against the law of nations,” and thus cannot be reached by Congress under the Offenses Clause. One of the judges added in concurrence that because drug trafficking is not universally cognizable in international law, it cannot be punished universally through the Offenses power.

Similarly, in U.S. v. Ali, the a D.C. federal district court threw out charges of piracy and conspiracy to commit piracy because universal jurisdiction for such acts only ran on the high seas. And the Fourth Circuit in U.S. v. Dire
680 F.3d 446 (2012) agreed in dicta. (And of course, in Kiobel the Supreme Court is reconsidering whether universal jurisdiction exists under the Alien Tort Act.)

Material support for terrorism is a particularly weak case for the Offenses Clause, as the D.C. Circuit had ruled in Hamdan that it was not a war crime (though this does not rule out its being another type of international offense), and terrorism itself does not violate international law, as the Second Circuit has held in Yousef.

Indeed, I know of know other case in the world of material support for terrorism being prosecuted through universal jurisdiction. In prosecutions under the Define and Punish Clause, courts have increasingly (and properly) required actual evidence of past state practice to establish an international norm, as I’ve discussed here before.

The policy behind the material support statute, when applied without a U.S. nexus, is to punish actors whose political actors whose goals and methods the U.S. disapproves of. Al Shabab is a pernicious and destabilizing force, but that does not give the U.S. Congress Art. I power to criminally punish entirely foreign conduct simply because it runs counter to U.S. foreign policy.

There are other ways the U.S. can, consistent with the Constitution, engage and repress Al Shabab and other purely foreign terror groups. It can help local governments that are fighting them. It can even use military force itself. It the beef with Al Shabab is that it is an ally of other forces actively hostile to the U.S., it members (but perhaps not supporters) could perhaps even be detained militarily as co-belligerents.

(Thanks to Jon Bellish for the pointer.)

UPDATE: The defendants seem to be among the folks discussed in today’s Washington Post renditions story:

The three European men with Somali roots were arrested on a murky pretext in August as they passed through the small African country of Djibouti. . . . U.S. agents accused the men — two of them Swedes, the other a longtime resident of Britain — of supporting al-Shabab, an Islamist militia in Somalia that Washington considers a terrorist group. Two months after their arrest, the prisoners were secretly indicted by a federal grand jury in New York, then clandestinely taken into custody by the FBI and flown to the United States to face trial.

In the recent oral argument in Fisher v. University of Texas, and in his amicus brief on behalf of the United States, Solicitor General Donald Verrilli emphasized the military rationale for affirmative action. Without racial preferences in college admissions, we will not have an adequate supply of minority officers in the armed forces, which would undermine military efficiency. As the brief puts it:

Military leaders have concluded that an officer corps that is markedly less diverse than the enlisted ranks, and that is unattuned to the diverse perspectives of those they must lead, can undermine the military’s combat readiness. Fostering a pipeline of well-prepared and diverse officer candidates is therefore an urgent military priority. That military policy judgment reflects the lessons of actual battlefield experience during the Vietnam War when the disparity between the overwhelmingly white officer corps and the highly diverse enlisted ranks “threatened the integrity and performance” of the military.

The same argument played an important role in Justice Sandra Day O’Connor’s majority opinion in Grutter v. Bollinger, which ruled that racial preferences can be used to promote diversity in college admissions:

[H]igh-ranking retired officers and civilian leaders of the United States military assert that, “[b]ased on [their] decades of experience,” a “highly qualified, racially diverse officer corps … is essential to the military’s ability to fulfill its principle mission to provide national security.” Brief for Julius W. Becton, Jr. et al. as Amici Curiae 27. The primary sources for the Nation’s officer corps are the service academies and the Reserve Officers Training Corps (ROTC), the latter comprising students already admitted to participating colleges and universities. Id., at 5. At present, “the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies.” Ibid. (emphasis in original). To fulfill its mission, the military “must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse setting.” Id., at 29 (emphasis in original). We agree that “[i]t requires only a small step from this analysis to conclude that our country’s other most selective institutions must remain both diverse and selective.” Ibid.

This argument has an important kernel of truth. A nearly all-white officer corps commanding enlisted personnel who include a high percentage of racial minorities could easily lead to racial tensions that undermine military efficiency. This could potentially justify racial preferences in the military service academies, and for students at other institutions who plan to take part in ROTC. Minority officers admitted under such preferences might suffer a degree of stigma. But perhaps the tradeoff is worth it, at least if race-neutral admissions really would lead to a racially homogenous officer corps that could not relate to the ranks.

I’m not offering any definitive opinion on the issue of whether racial preferences in the military academies and ROTC programs are constitutional. But the case for them is at least serious and plausible.

Yet I don’t see how that argument justifies racial preferences in admissions to civilian institutions, where only a small fraction of the graduates will go on to become military officers. The Supreme Court in Grutter concluded that moving from preferences at military academies and ROTC programs to preferences at all “selective institutions” is just a “small step.” But it sure seems like a pretty big step to me.

Maybe the size of the step doesn’t matter if we are simply going to let universities decide for themselves which racial preferences are justified. But Grutter repeatedly emphasized that racial preferences adopted by state institutions must be subject to strict scrutiny, which includes a requirement of “narrow tailoring” to the “compelling state interest” the preferences are supposed to address. Even the liberal justices who argue that affirmative action programs should get less scrutiny than traditional discrimination against minorities still assert that it should be subject to “intermediate scrutiny” similar to that required of gender classifications. Intermediate scrutiny still requires a fairly close relationship between the size of the preference and the goal it serves. As Justice Ruth Bader Ginsburg explains:

The mere assertion of a laudable governmental purpose, of course, should not immunize a race-conscious measure from careful judicial inspection.... Close review is needed “to ferret out classifications in reality malign, but masquerading as benign,” Adarand, 515 U.S., at 275 (Ginsburg, J., dissenting), and to “ensure that preferences are not so large as to trammel unduly upon the opportunities of others or interfere too harshly with legitimate expectations of persons in once-preferred groups,” id., at 276.

And the military rationale for affirmative action simply can’t pass any kind of “close judicial inspection” if it is used to justify affirmative action in civilian institutions where only a small fraction of graduates will ever become military officers. At least not when schools have the obvious alternative of limiting such preferences to applicants who commit to joining an ROTC program.

In sum, I might well buy the military rationale for the University of Texas affirmative action program if UT were a military academy or if the vast majority of UT students were going to join ROTC programs. But for a civilian institution, it seems like a big stretch.

New York Times columnist Ross Douthat has an interesting column describing some of President Obama’s evolving positions on executive power. He now engages in many of the same practices that he and numerous other liberal Democrats denounced as unconstitutional in the days of the Bush Administration:

When George W. Bush was president of the United States, it was an article of faith among liberals that many of his policies were not just misguided but unconstitutional as well....

Obama campaigned as a consistent critic of the Bush administration’s understanding of executive power — and a critic with a background in constitutional law, no less. But apart from his disavowal of waterboarding (an interrogation practice the Bush White House had already abandoned), almost the entire Bush-era wartime architecture has endured: rendition is still with us, the Guantánamo detention center is still open, drone strikes have escalated dramatically, and the Obama White House has claimed the right — and, in the case of Anwar al-Awlaki, followed through on it — to assassinate American citizens without trial.

These moves have met some principled opposition from the left. But the president’s liberal critics are usually academics, journalists and (occasionally) cable-TV hosts, with no real mass constituency behind them.

The majority of Democrats, polls suggest, have followed roughly the same path as the former Yale Law School dean Harold Koh, a staunch critic of Bush’s wartime policies who now serves as a legal adviser to the State Department, supplying constitutional justifications for Obama’s drone campaigns. What was outrageous under a Republican has become executive branch business-as-usual under a Democrat.

Douthat does not mention what was perhaps Obama’s biggest reversal on executive power. The man who in 2007 wrote that “[t]he President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,” last year waged a war against Libya without any congressional authorization. Even Bush never went that far.

Like Douthat, I don’t believe that all of Obama’s reversals were for the worse. In some of these cases, I think the president’s new position is more correct than his old one. That said, it is unfortunate that Obama has adopted such an extraordinarily broad view of executive power, and that Democratic partisans have largely accepted it. In fairness, their unprincipled behavior is little different from that of many Republicans when the GOP controls the White House. But that hardly justifies it.

For those who want to argue that I myself only turned against a broad view of executive power when Obama got into the White House, I refer you to my January 2007 Federalist Society debate on wartime executive power with John Yoo and others, and this post.

UPDATE: I have revised the last paragraph of this post for stylistic reasons.