The Volokh Conspiracy

A group of armed men attack a U.S. warship on the high seas. Piracy under international law? Yesterday, the U.S. District Court in Richmond convicted a group of Somalis for an attack on the U.S.S. Ashland (such incidents are not uncommon). Boy these guys were dumb – what were they thinking?

Of course, if Judge Kozinski’s piracy opinion were wrong, the prosecutors would actually have to prove what they were thinking as an element of the case. That is, attacking a warship is the kind of thing one would ordinarily due for political purposes, so unless one actually takes a purely subjective approach to “private ends” (which I think obviously and entirely unworkable), this prosecution would be difficult under the “private isn’t political” rule.

The defendants argued they were distressed mariners just trying to get the Ashland’s attention. They should have said they were Somali militants protesting the unfairness of global wealth distributions. (The Stolen Seas movie that features me also features Noam Chomsky putting the Somali pirates in some such a light.)

These guys were the ones whose case was originally thrown out by a district judge who read international law very narrowly as not covering attempts, before the Fourth Circuit reversed (citing me...).

Also yesterday, Nigerian pirates released some hostages. The Ashland case is really a throwback; Somali piracy is largley (at least until the sequester kicks in). However, a new and much more violent piracy problem has emerged in the Gulf of Guinea, involving attacks on oil industry there. Thus far the attackers have invariably been described as pirates by the the UN, IMO, and the world at large as far as I known.

Yet the Nigerian pirate attacks are an operation of MEND (Movement for the Emancipation of the Niger Delta), who has carried on attacks for years on and off the high-seas. Its generally thought of as a political group. A big part of MEND’s “politics” is the redistrubtion of oil wealth in favor of local interests. They are treated as pirates (though I don’t know of any foreign prosecutions yet). Thankfully not much turns on their precise state of mind, or the imponderable line between politics and theft.

Piracy is a universal jurisdiction crime. We do not like to have jurisdictional considerations turn on vague, subjective factors – especially sensitive things like universal jurisdiction. Some might say the “political” exemption is for only “purely” political motives, but given the ubiquity of mixed motives, I have no idea how one excludes the possibility of non-political motives, or even how one defined “political” in a world where money and its distribution is a major political issue.

Today, in Clapper v. Amnesty International USA, the U.S. Supreme Court held that petitioners Amnesty International, et al., lacked standing to challenge surveillance of international communications under the Foreign Intelligence Surveillance Act.  The Court split 5-4 along traditional right-left lines.  Justice Alito wrote for the majority opinion.  Justice Breyer dissented.  Here is the introduction from Justice Alito’s opinion:

Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U. S. C. §1881a (2006 ed., Supp. V), allows the Attorney General  and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not “United States persons”1 and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court’s approval. Respondents are United States persons whose work, they allege, requires them to engage in sensitive international communications with individuals who they believe are likely targets of surveillance under §1881a. Respondents seek a declaration that §1881a is unconstitutional, as well as an injunction against §1881a-authorized surveillance. The question before us is whether respondents have Article III standing to seek this prospective relief.

Respondents assert that they can establish injury in fact because there is an objectively reasonable likelihood that their communications will be acquired under §1881a at some point in the future. But respondents’ theory of future injury is too speculative to satisfy the well-established requirement that threatened injury must be “certainly impending.” E.g., Whitmore v. Arkansas, 495 U. S. 149, 158 (1990). And even if respondents could demonstrate that the threatened injury is certainly impending, they still would not be able to establish that this injury is fairly traceable to §1881a. As an alternative argument, respondents contend that they are suffering present injury because the risk of §1881a-authorized surveillance already has forced them to take costly and burdensome measures to protect the confidentiality of their international communications. But respondents cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending. We therefore hold that respondents lack Article III standing.

For background on the case from the VC, here are some posts by Orin on the Second Circuit’s opinion below, the court’s 6-6 split en banc, and the oral argument, and posts by me on the Sixth Circuit’s opinion addressing this issue and the cert grant.  Several posts from the Lawfare Blog providing additional background are linked here.

Former acting solicitor general Neal Katyal writes in today’s NYT in favor of an executive branch court to oversee the use of drones to combat terrorism.  His op-ed begins:

In the wake of revelations about the Obama administration’s drone program, politicians from both parties have taken up the idea of creating a “drone court” within the federal judiciary, which would review executive decisions to target and kill individuals.

But the drone court idea is a mistake. It is hard to think of something less suitable for a federal judge to rule on than the fast-moving and protean nature of targeting decisions.

Fortunately, a better solution exists: a “national security court” housed within the executive branch itself. Experts, not generalists, would rule; pressing concerns about classified information would be minimized; and speedy decisions would be easier to reach.

Katyal raises some reasonable concerns about subjecting oversight of drone strikes to the judiciary, and suggests this may be a viable way to enhance oversight of drone strikes without unduly compromising the military and intelligence communities’ ability to use drones when warranted.

[I'm sure there's additional commentary on the Lawfare blog, but I can't link to any because it appears to be down at the moment.]

Human Rights Watch has just released a report on Israel’s recent “Pillar of Defense” operation to suppress rocket fire from Gaza. The report concludes that 18 airstrikes violated international law by not being properly targeted. I do not know if 18 is a little or a lot for an operation of this scale, as there an no good comparative data (though the report is released as Afghanistan says yet another NATO airstrike hit a house with innocent women and children inside.)

The report, by its description of its methods, appears to be a hit piece. Here is what the report said about the group’s investigative method (emphasis added):

Human Rights Watch sent detailed information about the cases to the Israel Defense Forces (IDF) on January 14, 2013, requesting further information. At a meeting on January 24 and in subsequent phone conversations, the military spokesperson’s office told Human Rights Watch that the military chief of staff had ordered a general (aluf) to conduct an “operational debriefing” (tahkir mivtza’i) concerning “dozens” of Israeli attacks during the conflict, including the cases Human Rights Watch investigated, which would be completed by late February.

Because previous Israeli “operational debriefings” involving attacks were not conducted by trained military police investigators or dedicated to investigating alleged laws-of-war violations, Human Rights Watch has decided to publish its findings rather than wait for their results.

In other words, HRW received high-level and consistent cooperation. A meeting between HRW and the IDF took place on Jan 24 (just 10 days after HRW asked for further information), and were told that the IDF would have a more detailed response by late February after its own investigations were over. One month is not a long time to wait, certainly not covering an incident that occurred months ago.

It is completely baffling why HRW, would rush to publish their report a mere two weeks before they could hear in full Israel’s response to their allegations. Furthermore, HRW’s explanation why they chose not to wait lacks any coherence. What is so special about designated military police as opposed to toeher investigators? And even if the IDF investigations were not conducted by trained military police, it is unquestionable that the IDF investigators would have access to sources HRW does not. One would expect that an organization whose influence is completely based on their reputation for objectivity and thoroughness would wish to have all the facts before rushing to publish.

Well-meaning observers are often puzzled why Israel sometimes does not cooperate with the multitudinous foreign investigations into its military operations. The minimal lack of procedural fairness investigations such as HRW’s is surely one reason for their reluctance.

Hat tip: Gidon Shaviv

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 release by NBC News of a confidential “white paper” outlining the basis upon which the Obama Administration justifies the use of drones to conduct targeted killings of suspected terrorists, including American citizens, has prompted a substantial amount of commentary — mostly negative. Among other things, critics note the expansive notion of what constitutes an “imminent” threat. So, for instance, the memo provides:

the condition that an operational leader present an “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons will take place in the immediate future.

Conor Friedersdorf sees echoes of the early Bush Administration in this rationale (as does Charles at Popehat), and Glenn Greenwald finds it “chilling.” Patterico worries about the slippery slope and Jacob Sullum finds the memo disturbing. But don’t worry. White House spokesman Jay Carney assures us there’s nothing problematic about the administration’s position.

On the academic side of things, Greg McNeal notes “six key points” on the white paper. Kevin Jon Heller comments on the memo’s “confused approach to imminence (and capture)” and its mishandling of al Qaida’s organizational structure.

In the Washington Post Jack Goldsmith argues the white paper highlights the need for a new “rulebook” for the war on terror, preferably a statute debated and adopted by Congress (a step Gerard Magliocca urges as well), and his colleagues at the Lawfare blog have several more posts on the issue.

UPDATE: John Bolton and Senator Lindsey Graham defend the Obama Administration’s use of drones.  According to Bolton, the current policy is a reasonable extension of the Bush Administration’s anti-terror policies.

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.

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...

The federal government does not need to disclose the legal opinions and other documents justifying the use of drone to target suspected terrorists overseas, a federal judge ruled this week. As Josh Gerstein reports, the ACLU and New York Times had sought their release under the Freedom of Information Act (FOIA). While Judge Colleen McMahon noted there were “legitimate reasons” to question the legality of the use of drone strikes for targeted killings overseas, and thought disclosure of the legal rationale relied upon by the administration would further public debate on the use of drones, she concluded the relevant documents were lawfully withheld under FOIA. While I, like many others, would like to see the relevant memos, Judge McMahon’s opinion is likely correct.

Rafaella Wakeman and Robert Chesney comment at the Lawfare blog.

The Washington Post reports on the continuing use of rendition as national security policy tool by the Obama Administration.

Renditions are taking on renewed significance because the administration and Congress have not reached agreement on a consistent legal pathway for apprehending terrorism suspects overseas and bringing them to justice.

Congress has thwarted President Obama’s pledge to close the military prison at Guantanamo Bay, Cuba, and has created barriers against trying al-Qaeda suspects in civilian courts, including new restrictions in a defense authorization bill passed last month. The White House, meanwhile, has resisted lawmakers’ efforts to hold suspects in military custody and try them before military commissions.

The impasse and lack of detention options, critics say, have led to a de facto policy under which the administration finds it easier to kill terrorism suspects, a key reason for the surge of U.S. drone strikes in Pakistan, Yemen and Somalia. Renditions, though controversial and complex, represent one of the few alternatives. . . .

Because of the secrecy involved, it is not known how many renditions have taken place during Obama’s first term. But his administration has not disavowed the practice. In 2009, a White House task force on interrogation and detainee transfers recommended that the government be allowed to continue using renditions, but with greater oversight, so that suspects were not subject to harsh interrogation techniques, as some were during the George W. Bush administration.

It was naive to ever think rendition would go away. It can be a valuable tool, particularly given the constraints on domestic detention and the limits (legal, moral, and otherwise) of drone strikes. But like any such tool, it is also subject to abuse and should be the subject of significant oversight.

UPDATE: Steve Vladeck critiques the Post story here.

Last night, Judge Raymond Lohier of the U.S. Court of Appeals for the Second Circuit issued a temporary stay blocking a lower court’s injunction against a law authorizing the indefinite detention of terrorist suspects, pending appellate review later this month. Last week, a federal district court judge had issued a permanent injunction against the law. As Charlie Savage reported in the NYT:

In the detention case, Judge Katherine B. Forrest of the United States District Court for the Southern District of New York issued a permanent injunction barring the government from relying on the defense authorization law to hold people in indefinite military detention on suspicion that they “substantially supported” Al Qaeda or its allies — at least if they had no connection to the Sept. 11 attacks. . . .

The new statute went beyond covering the perpetrators of the Sept. 11 attacks to also cover people who were part of or substantially supported Al Qaeda, the Taliban or associated forces engaged in hostilities against the United States or its allies. Its enactment was controversial in part because lawmakers did not specify what conduct could lead to someone’s being detained, and because it was silent about whether the statute extended to American citizens and others arrested on United States soil. . . .

The Obama administration fought the move, saying . . . the statute created no new detention authority that did not already exist in the original authorization to use military force. While Judge Forrest said she thought that it did expand detention authority, the fact that the government took the narrower view was “decisive” because it meant that “enjoining the statute will therefore not endanger the public.”

The U.S. Court of Appeals for the Second Circuit is scheduled to hear the appeal on September 28.

In the 1980s, First Lady Nancy Reagan famously urged kids to “just say no” to drugs. Although I’m no fan of the War on Drugs, she was certainly correct to point out that saying “no” is a good way of avoiding the dangers of drug use. Co-blogger Eugene Volokh makes a similar argument with respect to violence intended to pressure Western nations into suppressing “blasphemous” speech. Giving in to the terrorists incentivizes further terrorism, while refusing to do so reduces the risk of future violence. This principle applies to terrorism more broadly: An excellent way to reduce the risk of attacks is to refuse to give in to the terrorists’ demands. Over time, a government that develops a reputation for saying no to terrorists is likely to suffer fewer attacks in the first place.

I. Why Terrorists Rarely Target Dictatorships.

Most terrorist attacks are undertaken in the hopes of extracting some sort of political concession from the targeted nation. The terrorists strike because they think they have at least a reasonable chance of achieving the desired result. Governments that refuse to give in suffer fewer attacks. The most striking evidence supporting this conjecture is that terrorists rarely target dictatorships. That certainly isn’t because dictatorships are so nice that few people have grievances against them. To the contrary, they usually generate far more grievances than democracies do.

For example, it is striking that there is relatively little Muslim terrorism directed at Chinese targets, despite the Chinese governments’ brutal repression of its Muslim minority. In the days of the Soviet Union, Muslim terrorism directed against that government was very rare, despite the invasion of Afghanistan and the USSR’s harsh treatment of its own large Muslim population. Even Osama Bin Laden didn’t engage in terrorist attacks against civilians when he fought the Soviets in the 1980s. The contrast with his tactics against the US is instructive. As Russia became more democratic in the 1990s, the growing conflict in Chechnya began to generate more terrorist attacks, which in turn declined again over the last few years, as Vladimir Putin has consolidated a more authoritarian regime in Russia.

The main reason why dictatorships rarely suffer terrorist attacks is that they rarely given in to terrorists. Potential terrorists know that terrorism directed at dictatorships is unlikely to pay. Obviously, dictatorships also have harsher security policies than democracies do. But that doesn’t explain why terrorist attacks rarely target even those dictatorships that have relatively weak security services, or aim at targets associated with authoritarian governments beyond their borders (where their ability to adopt repressive security policies is much weaker than at home). Western democracies’ embassies and citizens traveling abroad get targeted far more often than those of authoritarian states, even though the latter are comparably vulnerable to attack. Muslim terrorists and rioters rarely if ever targeted Soviet embassies in the 1980s or Chinese ones today, despite the many Muslim grievances against those two governments.

II. The “Just Say No” Approach to Preventing Terrorism.

Saying no has many advantages over alternative antiterrorism policies. Unlike defensive security measures, it doesn’t require much in the way of extra government spending or violations of civil liberties. It is also less costly than offensive military action against the terrorists and creates fewer collateral risks. One can argue that avoiding actions that anger terrorists in the first place is even cheaper. But as the current round of riots at US embassies and many other incidents show, all sorts of things can anger potential terrorists. And it is impossible for a free society to even come close to avoiding all of them. Moreover, if potential terrorists realize that we are preemptively trying to avoid doing anything that might give them offense, that in itself is likely to generate additional demands backed by threats of terrorist attacks if the demands are not met.

Obviously, saying no is far from a complete substitute for these other strategies. But it can incrementally reduce the need to resort to them. In the long run, that reduction can be quite large, since saying no can greatly reduce the incentive of terrorists to target the state in the first place.

Unfortunately, democracies – including the US and Israel – often do make concessions to terrorists. Changing this pattern is not easy. The reason why democracies are more likely to give in than dictatorships is, of course, that they place a higher value on civilian life, and public opinion sometimes pressures them into making concessions in order to secure the release of hostages.

In addition, saying “no” may create genuine moral dilemmas in cases where the terrorists have at least a partially just cause. For example, Chechen terrorists have some legitimate grievances against Russia; but they have also committed horrendous atrocities against civilians. In such cases, saying “no” requires continuation of unjust policies that should never have been adopted in the first place. That creates a potentially difficult tradeoff.

That said, most terrorists are not fighting for just causes, and the genuine dilemma posed by those who are should not be allowed to obscure the virtues of saying “no” to the many who are not. And while it may be difficult for democracies to commit to a consistent policy of saying no, the beginning of wisdom is to recognize the problem and the ways in which committing to no can help solve it. The idea that giving in to terrorists breeds more terrorism is not a hard one to grasp, and even rationally ignorant voters can come to understand it over time. Hopefully, both the general public and political elites will begin to learn the lesson.

NOTE: In this post, I use “terrorism” in the commonly accepted sense of attacks deliberately targeting civilians. Thus, the fact that insurgent groups often target the military and security forces of dictatorships doesn’t count against my thesis. Defeating an authoritarian state’s military can indeed force them to give in, while harming its civilians rarely will.

UPDATE: I should perhaps add that there is a difference between a policy of saying no to terrorism and a policy of never doing anything that any terrorist might possibly want us to do. There is a difference between doing X in order to convince terrorists to stop attacking us, and doing X for unrelated reasons of our own. In some cases, unfortunately, terrorists might mistake the latter for the former. That’s one reason why cases where terrorists have a just cause create a difficult dilemma. A government that takes actions that happen to coincide with the demands of terrorists, but does so for reasons other than a desire to appease them, needs to find a way to credibly convey the reasons for its actions. How best to do that is a difficult issue that I cannot address in a post that is already too long.

UPDATE #2: I recognize, as some commenters note, that the paper I cite for evidence that dictatorships suffer fewer terrorist attacks than democracies mostly attempts to explain variation in attacks between different dictatorships. But the first part of the paper summarizes extensive previous literature showing that dictatorships experience fewer terrorist attacks than democracies. The latter part does not contest this, but merely shows that some dictatorships experience fewer attacks than others and tries to explain why. I intended to rely only on the first part of the paper, the one that summarizes the previous literature.

UPDATE #3: I suppose I should note more explicitly that there have been cases of Muslim terorism in China. However, they are far less common than attacks directed at Western democracies. More generally, the point is not that dictatorships avoid terrorist attacks entirely, but that their incidence is much lower than that of attacks directed at democracies, even though the former create far more grievances among potential terrorists. A consistent policy of saying no can’t eliminate terrorism entirely. But it can substantially reduce its incidence.