Following up on Eric’s post re President Obama’s legal authority to target in Yemen … I’m a bit of a broken record on the need for the United States government to articulate a more coherent legal basis for its targeted killing. But it is just more so since the Christmas terrorist attack … the range of places in which the US might well decide it should attack safe havens is likely to grow, and so too the range of people to be targeted. In one way, the fact that “Al Qaeda” took responsibility makes it easier for the USG to expand the range of places in which targeted killing gets used, because it means people (at least in the US) understands that AQ has not gone away. On the other hand, Eric is right to point out that calling it Al Qaeda gets, well, notional after a while. And anyway, the AUMF does not solve any international law problems, either in the resort to force or its conduct; it is an act of Congress.
All of which is why in my view, the United States needs to reaffirm the 1989 Sofaer doctrine on non-state actors, terrorism, safe havens, and self-defense. As far as I am aware, it has never gone away or been rescinded – but it has not been publicly articulated as the view of the US government for a long time. The essential element is that there is a category of use of force in self defense that is neither law enforcement, nor is it armed conflict in all the specificity of the laws of war because the use of force does not rise to the level of sustained fighting required under treaty and customary law of war. It is its own category, self-defense; it is not standardless, because it is subject to the customary law requirements of necessity and proportionality – but it is a doctrine of international law that is flexible in responding to new situations, as the Sofaer doctrine says.
If anyone from DOS, DOD, DOJ, NSC, CIA, DNI, or the White House counsel’s office is reading this following the Christmas attack, and as you sit thinking about Yemen, Somalia, and who knows where down the road … you should be thinking hard about having the State Department Legal Adviser deliver a major speech in which the traditional category of self-defense, and the Sofaer speech in toto, is reaffirmed as the opinio juris of the United States and not “merely” its state practice. If a state cannot or will not control its territory, the United States has no legal obligation to sit idly by – in armed conflict or out – to watch it being used as a safe haven for non-state actors. President Obama has said this repeatedly in the last few months. But that is not the same as the administration’s top legal officials stating so as a matter of the US view of international law on the use of force – publicly articulating it, and pointing out that this has always been the US view and it is nothing new, but is the lawful basis of the President’s policy.
Sammy Finkelman says:
KA> If a state cannot or will not control its territory, the United States has no legal obligation to sit idly by — in armed conflict or out — to watch it being used as a safe haven for non-state actors.
We have to tell any such country that has a haven, that they have to get rid of it and..
We won’t take no for an answer.
AND
We won’t take YES for an answer.
We will only take success for an answer.
That is, if they want to go it alone.
If not, they have to work together with the United States and not withhold any secrets from the United States – of course if it works and they stop it, then they could keep a secret – of
course they can also insist on keepin the information compartmentalized. But it is mnot reciprocal, because that country can be expected to have terrorist moles. The United States too can have moles, and a foreign country should be given the kind of arrangements where this risk can be minimized.
And if they don’t choose choice A or choice B, then the United States reserves the right to intervene in that country with military force in any part of it that the ggovernment does not control effectively and we will try to avoid conflict with the legitimate armed fforces of that country.
In short they have to be confronted with a trilemma:
1) Go it alone, but in such a case we won’t listen to any
excuses for failure – Al Qaeda must be destroyed and we won’t take no for an answer. And we won’t take yes for an answer. We will only take success for an answer,
2) Work together with the Unitede States on combatting this, with no reservations or secrets – but the United States will mnot be under any similar obligation not to keep secrets ffrom that country.
3) The United States will act unilaterally, but will attempt tol avoid fighting anyone that isn’t really our enemy.
December 30, 2009, 9:20 pmBleepless says:
Note that the Somalis discovered and removed an airplane passenger armed with explosive chemicals and the appropriate implements. Somalis — ponder that.
December 30, 2009, 9:38 pmSkyler says:
This is all interesting in an academic and UN weenie sort of way, but the real issue is winning the war against al Qaeda.
Targeted attacks such as you’re discussing only have a minor effect on such a vast organization. The depth of available leaders is far broader than such a tactic can overcome. It is like the proverbial whack-a-mole: Every time you take out one leader or group, another will step up to take their place with only a slight delay in effectiveness.
This war will not be won until we destroy the source of the enemy’s strength. We must end fanatical Islam and the people who support it.
And we need to stop pussy-footing around and use all our military in the war and stop worrying about how many are there and then leave them there (wherever they’re needed to destroy fanatical Islam) until it’s over.
The drone attacks are just a less effective variation on the proven bad idea of the Cheney/Rumsfeld policy of trying to win wars with special forces. Special forces and drones have their place in supporting a war effort, but they can never win wars.
December 30, 2009, 9:39 pmbailey says:
So, if we announce the correct policy, it will produce victory? I’m sorry but the lawfare thinking that goes into these kind of posts might produce huzzahs in a faculty senate meeting but I don’t think they matter a great deal in real world terms. We need Hillary to give a “major” speech on the Sofaer doctrine to attain victory like we need an aerial barrage of law school professors to cleanse Yemen of AQ. Further, what makes you think that these major legal players in the Administration would actually accept this philosophy.
December 30, 2009, 10:12 pmJoe says:
International law in matters of conflict is not some 21st Century invention. For instance, George Washington was involved in a casus belli that directly led to the French-Indian War. This is a mixture of law and foreign policy that does matter in real world terms. The shot at what “Hillary” says is also a bit childish.
December 30, 2009, 10:39 pmSkyler says:
I argued this in my paper for my international law and national security class. I’m not sure many thought it was a good argument.
December 30, 2009, 10:56 pmorca says:
Maybe because it was the United States that harbored and trained the 9/11 terrorists?
December 30, 2009, 11:56 pmyankee says:
For the benefit of those of us who are not international law scholars, could you say a bit about what this doctrine is? I’ve invested over a minute of Googling it and have come up with nothing useful.
This talk of how the law needs to be “flexible” makes me nervous though. It sounds a bit too much like “we here in the government are going to do whatever we want.” I’m not comforted by the supposed constraints of necessity and proportionality, since the government has a remarkable ability to find that everything it wants to do is necessary and proportionate.
December 31, 2009, 1:01 amAvatar says:
This is an interesting assertion. I was not previously aware that Al Qaida had access to untold thousands of experienced terrorist leaders, all of whom have conducted numerous successful terror operations, have strong personal charisma, personal ties with others in the network (but not, of course, knowledge of what they’re up to right now, because that would be dangerous to them upon our faceless leader-minion’s capture.) And, of course, all of them are also able administrators, gifted technicians, and probably better-looking than you too, right?
No organization on Earth can claim that. Businesses who have access to dozens of Ivy League graduates can’t claim that. Even the US military, which has the best leadership training techniques on the planet (and nobody trying to arrest them for having joined up, heh) can’t claim that.
It’s possible you’re arguing your point from the other direction – that there’s no point in targeted attacks on terrorist leaders, because we have no metric to judge whether they’re any good and they’re just as likely to be an incompetent who would be replaced by someone who’s more competent. That’s a tough argument to make, because experience does count for something, as does personal charisma, as do personal contacts with the, er, “terror community”. I don’t think I’d buy it as an unsupported assertion, but at least it’s not grossly illogical like the “whack a mole” argument…
Part of the problem might be characterizing AQ as an “organization”. Bin Laden isn’t sitting in an office somewhere, talking about how the johnson bombing techniques are going to lead to an increase in Q1 plane crashes, if only the Nigerian branch can meet its recruitment targets. In a lot of ways, it’s a label that small groups opt in to; certainly what passes for AQ’s central direction won’t ever have heard of most of the people who think that they’re a part of AQ. It’s not even a “cell” system, because that implies a rigid hierarchy imposed from above to prevent cross-contamination, and AQ’s security isn’t that good.
In that sense, punching out individual terrorist leaders doesn’t hurt the greater structure, because there wasn’t a greater structure in the first place, just a bunch of ramshackle jerry-rigged groups sorta-kinda cooperating with each other. On the other hand, there’s still effective “local” groups, and then there’s the johnson bomber types…
December 31, 2009, 1:07 amKirk Lazarus says:
This isn’t a new position. In 1871 the natives of Taiwan massacred a group of shipwrecked Japanese sailors. When Japan demanded compensation, the Chinese disclaimed responsibility for the acts of the “wild and unsubjugated” Taiwanese. Japan treated this as a disclaimer of sovereignty and invaded the island. AFAIK no other nation protested.
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December 31, 2009, 2:22 amEcon_Scott says:
Actually Kahlid Sheik Mohammed was an engineering student in North Carolina on a Student Visa when he met Radical Brothers in the U.S. If you mean “We” Trained them then Speak for yourself and I surely hope Eugene Volokh hands over your ISP unique numbers and logs to the FBI and Interpol now that Interpol agents have diplomatic immunity in the U.S. by Executive Order to commit any malfeasance against you they wish then fly home to Euroland without prosecution, Kind of like how the Germans exterminated the Bader Meinhoff Gang.
As for “Training the other 9-11 Shaheeds” well most were European students led and directed at the University of Hamburg and in the U.K. so unless you mean they came to the U.S. to go to Flight Schools and Orlando stripper bars once radicalized in Western Nation Engineering Schools, then the “We Trained them” certainly puts you in their Unique clique of friends. You don’t speak for the rest of us.
Have fun with the Interpol enforcement guys. Having my passport checked on a train crossing between Austria and Germany with guys stiking H&K MP5′s in my face so I understood their authority and seriousness, I think they are right up your alley.
December 31, 2009, 2:49 amGuy says:
Or as Yoda put it:
Do, or do not; there is no try.
December 31, 2009, 6:20 amjcm says:
Clinton bombed a pharmaceutical facility in Sudan, and Afghanistan ( hitting Pakistan in the process ) after the attempt against the Kenya and Sudan embassies .He was wagging the dog but nobody questioned him. Well there was no bloggers but still
December 31, 2009, 9:28 amSammy Finkelman says:
…there was Usenet. Plus e-mail mailing lists. And websites.
Of course it was criticized,just that way:
http://whatreallyhappened.com/RANCHO/POLITICS/SUDAN/sudan.html
That website is not something more recent. It is contemorary.
http://whatreallyhappened.com/RANCHO/index.html
says:
IMPORTANT ANNOUNCEMENT
This web site, Rancho Runnamukka, will be shutting down during the first quarter of 2000. Most of the information here will still be available at our new web site, What Really Happened, which will open on January 1, 2000.
————————————–
Here are some usenet threads:
http://groups.google.com/group/alt.current-events.clinton.whitewater/browse_thread/thread/60f8b501b5b6c4a5/7c64e9d9f7a30a8e?hl=en&ie=UTF-8&q=pharmaceutical+Sudan+Afghanistan
http://groups.google.com/group/soc.culture.malaysia/browse_thread/thread/c33779761be2a555/d53c80cd15aa648e?hl=en&ie=UTF-8&q=pharmaceutical+in+Sudan,+and+Afghanistan+Kenya+embassies
http://groups.google.com/group/alt.thebird.liberal/browse_thread/thread/4fe635cc3410c0b0/eb59a01b19cce88b?hl=en&ie=UTF-8&q=pharmaceutical+Sudan+Afghanistan
http://groups.google.com/group/soc.culture.nigeria/browse_thread/thread/56b7677ba54d551/5d9c91bd75cff0f?hl=en&ie=UTF-8&q=pharmaceutical+Sudan+Afghanistan
(These last three are all left-wing)
By the way it wasn’t the embassy in the Sudan, but Tanzania, and the attempts were successful, esecially in Nairobi, Kenya.
Also, Clinton bombed the WRONG chemical plant in the Sudan (there were two), and the empty terrorist training camp he destroyed in Afghanistan was used for training for terrorism against India (Kashmir) not the United States. The Pakistanis assumed that that indeed he cared about terrorism in Kashmir. He did not destroy any real infrastructure. H actually didn’t want to.
December 31, 2009, 10:55 amPatriot Henry says:
the moral, legal, and practical consequences of murdering people? No, no, just focus on CYA.
December 31, 2009, 12:08 pmorca says:
The government of Yemen had as much involvement in the training of the latest failed terrorist as the U.S. government had in the training of the 9/11 terrorists while they were here.
I guess collective punishment should only apply to foreigners living in non-nuclear nations that don’t supply us with oil?
December 31, 2009, 1:27 pmpot meet kettle says:
Prof. Anderson, a clear articulation of the principles behind this kind of warfare is very important. Especially as it raises important philosophical and moral questions about what the bar for indulging in it is, especially considering that the barrier posed by any kind of immediate and direct risk to American soldiers does not exist. Even from a purely pragmatic point of view, here are long-term consequences in terms of antagonizing people on the ground. And further, from a moral point of view, there needs to be more light and discussion on what our threshold of actionable intelligence should be, and how we balance the calculus of risk and the loss of innocent lives. While General McChrystal has (naturally) been concerned about the practical implications of seemingly indiscriminate killing of civilians (especially in events like weddings and funerals) because of the adverse effect on hearts and minds, there seems to be little serious examination of what exactly proportionality means in the context of remote controlled drones dropping multi-100-tonne bombs in civilian areas.
December 31, 2009, 2:59 pmSammy Finkelman says:
I thought Japan took over Taiwan in 1895. Do you have more details?
January 1, 2010, 3:08 pmapep says:
Obama’s authority did the right thing
January 2, 2010, 11:59 pmKirk Lazarus says:
The wash-up of the 1874 invasion was that the Japanese withdrew after some punitive action (and taking fairly heavy casualties to tropical diseases). The 1895 transfer of sovereignty was a result of China losing the First Sino-Japanese War.
January 3, 2010, 1:01 amSteve Roberts says:
Congress is supposed to approve and authorize military force are they not? Isn’t this part of the distribution of power so that a President can’t get us solely into wars? Yet to get around this all the President has to do is say the land is ungoverned? It’s very easy for a President to just declare a land ungoverned and invade. If a terrorist event comes from Georgia (the country) and thus is determined to be ungoverned, are we allowed to invade without Congressional authority just because the President made this determination?
For example, what if Reagan had determined that parts of Nicaragua were ungoverned and invaded instead of just delivering arms?
January 4, 2010, 2:22 pmStars « Rhymes With Cars & Girls says:
[...] Anderson at Volokh Conspiracy wants us to reaffirm the 1989 Sofaer doctrine on non-state actors & self-defense. (No, I had no [...]
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