The Volokh Conspiracy

Since Rick Santorum’s unexpected success, his extreme social conservatism has gotten a lot of attention. In some cases, it goes beyond what even most conservative Republicans would be willing to support. My personal favorite extreme Santorum quote hasn’t yet gotten as much play as some of the others.

In a September GOP debate, Santorum responded to a question about his position on the repeal of Don’t Ask, Don’t Tell by saying that “any type of sexual activity has absolutely no place in the military.” Perhaps Santorum merely meant that military personnel should not be having sex while on duty. But if that’s the case, no one disagrees with him, including supporters of the repeal of DADT. Getting rid of DADT doesn’t change regulations forbidding sexual behavior that interferes with the performance of duty. The more natural reading of Santorum’s quote is that military personnel should be forbidden to engage in “sexual activity” of any kind for as long as they are in the armed forces. If that’s the case, only celibates could serve in the military.

It’s possible that Santorum simply misspoke. But when the moderator asked him to explain his position further, he actually dug the hole deeper:

When moderator Megyn Kelly pressed him on what he would do as President, he fired back, “We are playing social experimentation with our military right now and that’s tragic…going forward we would reinstitute that policy if Rick Santorum was president, period.”

Santorum acknowledged that he couldn’t do much about those men and women currently serving in the military that have admitted to being gay, but concluded by saying, “Sex is not an issue, it should not be an issue, leave it alone and keep it to yourself whether you’re a homosexual or a heterosexual.”

In Santorum’s army, not only would gays be required to keep their sexual orientation secret, but so would heterosexuals. An equal-opportunity closet for all! The problem, of course, is that it’s very difficult to keep your orientation completely secret from long-term coworkers. People naturally mention their spouses, significant others, and so on, in casual conversation. If you wear a wedding ring or have a photo of your spouse on your desk, that might also be an indication of your sexual orientation. As a practical matter, you would probably have to be either celibate or extremely secretive to be safe from punishment under Santorum’s rule.

I can understand, though I don’t agree with, people who claim that DADT must be restored in order to promote unit cohesion. But Santorum’s prudery goes way beyond that.

I suspect that Santorum may not have grasped the implications of what he was saying. If he thought about it more carefully, he might well realize that forbidding all “sexual activity” by military personnel is likely to destroy the armed forces by making it nearly impossible to attract the number of capable volunteers we need to staff the military. Unless he intends to cut the military far more than even Ron Paul, that’s probably not what Santorum really wants. If Santorum wins the presidency, I doubt that he will actually try to implement this policy, if only because it would be a public relations disaster. Even so, it was a foolish and revealing statement.

A recently leaked United Nations report claims that the new rulers of Libya have committed numerous human rights violations:

Thousands of people, including women and children, are being illegally detained by rebel militias in Libya, according to a report by the Secretary-General of the United Nations. Many of the prisoners are suffering torture and systematic mistreatment while being held in private jails outside the control of the country’s new government.

The document, seen by The Independent, states that while political prisoners being held by the Gaddafi regime have been released, their places have been taken by up to 7,000 new “enemies of the state”, “disappeared” in a dysfunctional system, with no recourse to the law.

The report will come as uncomfortable reading for the Western governments, including Britain, which backed the campaign to oust Gaddafi….

The report says that “while political prisoners held by the Gaddafi regime have been released, an estimated 7,000 detainees are currently held in prisons and makeshift detention centres, most of which are under the control of revolutionary brigades, with no access to due process in the absence of a functioning police and judiciary.”

Of particular worry was the fate of women being held for alleged links with the regime, often due to family connections, sometimes with their children locked up alongside them.

“There have also been reports of women held in detention in the absence of female guards and under male supervision, and of children detained alongside adults,” says the report.

A number of black Africans were lynched following the revolution following claims, often false, that they were hired guns for the Gaddafi regime.

I have long expressed the concern that Libya’s new rulers might turn out to as bad or worse than the old (e.g. here and here). The leaked UN report provides further evidence showing that such concerns have a reasonable basis.

However, there are two important caveats. First, the UN is far from a completely reliable information source when it comes to human rights issues. Its record on such matters is a very poor one. The UN Human Rights Council, for example, is often stacked with egregious human rights violators, and, until recently, actively promoted violations of religious freedom and freedom of speech. Given the UN’s dubious record, it’s certainly possible that this report is either wrong or at least exaggerated. Second, even if the report is correct, the new Libyan regime might still be less bad than the old. Even a government that falls well short of being a paragon of liberal democratic virtue can still be better than Gaddafi’s dictatorship was.

Despite these important caveats, the new Libyan government certainly isn’t looking too good so far. And if radical Islamist elements in its leadership get the upper hand, things might get a lot worse before they get better.

The jury is still out on whether NATO intervention in Libya will achieve its original objective of improving respect for human rights in that country. The new Libyan government might yet clean up its act, or be forced to do so by Western pressure. On the other hand, President Obama’s war in Libya may turn out to have been counterproductive as well as illegal.
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Politico recently asked its Arena contributors whether the recent death of Muammar Gadhafi vindicates President Obama’s Libya policy:

How much credit should President Barack Obama get for Qadhafi’s death and the tyrannical regime’s ouster? Does it vindicate the president over Libya mission critics like Rep. Michele Bachmann?

My response is available here:

President Obama deserves credit for facilitating the overthrow of a brutal dictator at little immediate cost to the United States. Republican critics were wrong to claim that this result could only be achieved with a much larger commitment of U.S. forces.

On the other hand, it is far from clear whether the new regime in Libya will be any better than the old. The new Libyan government includes many different groups, including an influential radical Islamist faction….. If radical Islamists do take over Libya, the result could well be a regime that is just as oppressive as Gadhafi’s and much more hostile to American interests.

The United States may also pay a price for violating our 2003 agreement with Libya, under which Gadhafi agreed to stop supporting terrorism and give up his nuclear program in exchange for the US and Britain implicitly committing themselves to not seeking his overthrow….

Obviously, Gadhafi deserved to be overthrown. He certainly had no “right” to tyrannize over the people of Libya. But, after seeing what happened to him, other dictatorships such as Iran may be less willing to sign similar deals….

Finally, by going to war without congressional authorization, the president violated both the Constitution and the 1973 War Powers Act. Then-Senator Barack Obama got it right back in 2007, when he 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.”

I previously wrote on these issues in more detail here, here, here, and here.

Economist Joshua Hall has an interesting article describing an oft-ignored, but very important expansion of freedom over the last several decades: the declining use of military conscription. He notes that, as of 1970, some 80% of the world’s governments used conscription, including the US and many of the democratic nations of Western Europe. By 2009, that had declined to 45%, and many of those nation that still have conscription have reduced the length of conscript’s terms and made it easier to escape the draft. Even France, the nation that first pioneered conscription in the 1790s, abolished it in 2001.

Hall also gives a good summary of the economic case against conscription. Most knowledgeable people are aware of the standard points that conscription reduces the quality of the military because professionals are, on average, better soldiers than short-term conscripts, and that conscription creates major social costs by forcing people to serve who would be more productive in other occupations. Hall notes two other ways in which conscription is inefficient that are less well-known – that it creates deadweight losses by diverting people from their preferred occupations to those which have draft exemptions, and that it encourages governments to underinvest in military equipment and instead sacrifice more lives in battle rather than capital:

Like all taxes, conscription has distortionary effects that create deadweight losses. During the Vietnam War, for example, draft dodging and college enrollment motivated by draft avoidance created deadweight losses. More recently, World Bank economists Michael Loshkin and Ruslin Yemtsov estimated that 90 percent of eligible men are able to avoid Russia’s draft through a variety of means.

In his 1967 article making the case for a volunteer army, Milton Friedman argued that a volunteer army would lead the military to use more and better equipment. One consequence of an artificially low cost of military labor is that it discourages the military from substituting away from labor and towards capital. This point was perhaps best made by German economist Johann Heinrich von Thunen, in his nineteenth-century book, Isolated State:

The reluctance to view a man as capital is especially ruinous of mankind in wartime; here capital is protected, but not man, and in time of war we have no hesitation in sacrificing one hundred men in the bloom of their years to save one cannon.

In a hundred men at least twenty times as much capital is lost as is lost in one cannon. But the production of the cannon is the cause of an expenditure of the state treasury, while human beings are again available for nothing by means of a simple conscription order…

On the latter point, Hall cites a chilling quote by Napoleon, the founder of the first modern conscription system: “When the statement was made to Napoleon, the founder of the conscription system, that a planned operation would cost too many men, he replied: ‘That is nothing. The women produce more of them than I can use.’” Napoleon regarded conscripts as a “free good” and therefore didn’t much care how many of them got killed. Democratic governments tend to be more casualty-sensitive than he was. But even they tend to waste conscripts’ lives at a higher rate than those of professionals who have the right to quit. The introduction of the all volunteer force has clearly led the US military to be more careful about losses than it was in World War II, Korea, and Vietnam.

In addition to its inefficiency conscription is also objectionable because it is a form of forced labor that severely undermines personal freedom. There are few more severe violations of human rights than forcing a person to do work he doesn’t want at below-market rates for years at a time. In addition, conscripts’ lives are often tightly regulated even when they are not actively carrying out their duties. And, of course, they are sometimes forced to risk their lives.

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.

One can imagine hypothetical situations where conscription might be justified even on libertarian grounds. For example, it might be the only way to avoid conquest by a totalitarian state that would impose more brutal and more universal forms of forced labor. In the real world, however, no such scenario is even remotely plausible for the foreseeable future. And it is likely to become even less plausible as military technology becomes more complex and soldiers need more and more specialized skills that are best provided by professionals rather than temporary conscripts.

CNN has an interesting article about Abdul Hakeem Belhaj, a radical Islamist who is a prominent leader of the Libyan rebels whom the US and its allies have supported against Gaddafi. Belhaj has a long history of association with radical Islamist groups, including fighting for the Taliban against the US (he fled Afghanistan after the collapse of the Taliban regime in 2001).

The prominent role of such people among the rebels highlights one of the risks of the US intervention Libya that I noted here: the possibility that the new government will be as bad or worse than the old. If radical Islamists take over the new regime, their rule would likely be just as oppressive as Gaddafi’s was. In addition, they could use Libya’s oil wealth to sponsor anti-Western terrorism, something Gaddafi has abjured since cutting a deal with the US and Britain in 2003.

To be sure, Belhaj claims that he doesn’t want to establish an Islamist regime and has no desire to support terrorism against the US. However, this is what we would expect him to say at a time when he still needs US support against the remnants of Gaddafi’s regime. Even if he is sincere on these points, other radical Islamists among the insurgents may not be.

It’s also possible that a radical Islamist government will be deterred from supporting terrorism by fear of US retaliation. That still, however, would not make the Libya intervention a success. After all, Gaddafi had been similarly deterred since at least 2003. If a nonterrorist but highly oppressive new government takes power, we would still have gained nothing from removing him.

Obviously, not all of the Libyan rebels are radical Islamists, and it’s far from clear that Belhaj and others like him will control the new regime. A much better outcome is certainly possible, perhaps even probable. On the other hand, many historical examples demonstrate the advantages that well-organized, ruthless radicals have in a revolutionary situation. Often, they can seize power even if more moderate groups have greater public support. The French Revolution, Russia in 1917, Cuba in 1959, and 1979 Iran are among the best examples of this phenomenon.

I worry that the Obama administration and its European allies have not given this problem sufficient consideration. Obama’s greatest success in Libya so far has been to facilitate Gaddafi’s overthrow with only a minimal commitment of US and NATO forces. But that very minimalism will make it more difficult for the US and its allies to prevent radical Islamists from taking over if the latter win the internal struggle for power among the rebels after Gaddafi is gone.

On this point, Obama’s failure to follow the Constitution by getting congressional authorization for the Libya war also increased the chance of failure on the ground. Given the narrow base of political support for the intervention and the lack of “buy-in” by Congress, Obama will find it difficult to increase our level of commitment if it becomes necessary to do so to stave off a radical Islamist takeover. Even setting aside legal considerations, he might well have done better to either get congressional authorization or not intervene in Libya at all.

As I write this post, it looks like the regime of Libyan dictator Muammar Gadhafi is about to fall. Few will shed any tears for him. Gadhafi is a highly oppressive ruler and was for many years a leading supporter of terrorism against the US and others. The Obama Administration deserves credit for helping achieve his overthrow at a fairly minimal cost in American resources.

Nonetheless, there are still serious questions about the legality and wisdom of the administration’s policy. Even a successful outcome doesn’t obviate the fact that the intervention was probably both unconstitutional and a violation of the 1973 War Powers Act. Adherence to the Constitution is not the only important value out there, and I’m willing to admit that there are situations where it can be outweighed by other considerations. Even if the Emancipation Proclamation was unconstitutional, as critics claimed, getting rid of slavery was a good enough justification for violating the Constitution. I am skeptical that getting rid of Gadhafi is in the same class, however – especially since the administration could probably have gotten proper congressional authorization for its actions had it asked for it early on. Moreover, even if this intervention was both moral and effective, it sets a precedent for future unconstitutional uses of force, some of which may be neither.

I also have two prudential concerns about the administration’s policy. First, it is far from clear that the new regime in Libya will be better than the old. The Libyan opposition is a hodgepodge that includes many different elements. Some are liberal democrats, but others are radical Islamists. In a revolutionary situation, ruthless totalitarians are often able to seize power from more liberal groups and establish a regime that turns out to be far worse than the one it replaced. That’s what happened in Russia in 1917, Cuba in 1959, and Iran in 1979, among other examples. It’s far from inevitable that the same thing will happen in Libya. However, the risk exists, and it’s not clear whether the Obama administration and its allies have given it adequate consideration. In the worst case scenario, we could end with a regime that is both more repressive internally than Gadhafi and more of a threat to the West. Gadhafi is a brutal dictator. But he’s not a mass murderer on par with Hitler and Stalin, or even the Assads and Saddam Hussein (both of whom killed tens or hundreds of thousands of people). There’s plenty of room for Gadhafi’s successors to be worse than he is.

Second, it’s important to remember that the US and Britain cut a deal with Gadhafi in 2003, under which he agreed to give up his nuclear weapons program and stop supporting terrorism, while we agreed to normalize relations and forego efforts to overthrow him [UPDATE: This latter was not an official part of the agreement, but it was certainly understood as a crucial implicit element without which Gadhafi would never have gone for the deal].

It seems that Gadhafi has upheld his side of the bargain, whereas the US and Britain have just massively violated theirs. I’m certainly not suggesting that Gadhafi had some kind of moral right to stay in power and have the US and its allies respect the 2003 agreement. However, it may have been in our interest to keep the deal regardless. Our blatant reneging will make it harder to make similar agreements with other dictators in the future. If foreswearing nuclear weapons and terrorism will lead to your overthrow in a US-supported revolt, any dictator would be a fool to make the deal – or at least to live up to its terms. This point has surely not been lost on Iran, North Korea, and others. The damage to our credibility might have been acceptable if Gadhafi were a large-scale mass murderer or a serious threat to the US. But he was neither.

In sum, the overthrow of Gadhafi is a success for the Obama Administration, and the British and French governments. But the jury is still out on whether they did the right thing.

This Wednesday at 12:15 PM, I will be debating the legality of the Libya intervention at the University of Akron Law School with Akron law professor Wilson Huhn.

I previously wrote about these issues here, here, here, and here.

The audio of my debate with economist Bryan Caplan on libertarianism and foreign policy is now available here. Thanks to Chris Baylor for organizing and producing the audio, and to Bryan for posting it.

Note that I had trouble downloading the file from Mozilla Firefox, but was able to download it easily using Internet Explorer.

UPDATE: I should note that Bryan’s debate page includes a copy of the outline for my opening speech. This outline was intended for my use during the speech, rather than for publication. So some of it may not be very clear to readers. But we thought it might interest some people anyway, so I gave him permission to post it.

I recently did a Bloggingheads TV dialogue with Glenn Greenwald, a prominent liberal legal blogger. We focused on several ongoing legal controversies, including the debate over legality of the Libya war, the constitutional controversy over the debt limit, and recent developments in the War on Drugs. It turns out that there was a high degree of agreement between us on all three of these issues (somewhat predictably on the first and third, but less so on the second). Bloggingheads TV has also put together a helpful compilation of links to articles and posts mentioned in our discussion, including some of our previous writings on the relevant issues.

Thanks to Glenn for his insightful comments, and to Bloggingheads TV for organizing this event.

On July 13 at 7 PM, I will be debating George Mason University economist and prominent blogger Bryan Caplan on libertarianism and foreign policy. The debate will take place at George Mason Law School, 3301 Fairfax Dr., Arlington, VA, in Room 221.

Bryan summarized his case for “pacifism” (by which he means opposition to all warfare, but not all violence of any kind) in this post. I outlined my own far less dovish view here.

Bryan and I agree on the vast majority of other issues – not only in terms of bottom-line policy preferences, but in the way we get to those conclusions. Bryan’s book The Myth of the Rational Voter even made my list of fifteen books that influenced me the most. So it’s both interesting and thought-provoking that we disagree so much about this question, one that tends to divide libertarians among themselves, just as it also often divides liberals and conservatives. It should be a fun debate, and hopefully an enlightening one.

President Obama recently decided to continue the Libya intervention without congressional authorization, despite the advice of his own Office of Legal Counsel that this decision violated the War Powers Act. Commentators such as Bruce Ackerman and Jack Balkin condemned this decision, comparing it to similar actions by the Bush Administration. Balkin even dubs the president “George W. Obama.” I agree with their legal points and also with the comparison to Bush.

But I am more skeptical than Balkin that illegal presidential action can be constrained through better consultation with legal experts within the executive branch. The fact is that the president can almost always find respectable lawyers within his administration who will tell him that any policy he really wants to undertake is constitutional. Despite the opposition of the OLC, Obama got the view he wanted from the White House Counsel and from State Department Legal Adviser Harold Koh. Bush, of course, got it from within the OLC itself, in the form of John Yoo’s “torture memo.” This isn’t just because administration lawyers want to tell their political masters what they want to hear. It also arises from the understandable fact that administrations tend to appoint people who share the president’s ideological agenda and approach to constitutional interpretation. By all accounts, John Yoo was and is a true believer in nearly unlimited wartime executive power. He wasn’t simply trying to please Bush or Dick Cheney.

Better and more thorough consultation with executive branch lawyers can prevent the president from undertaking actions that virtually all legal experts believe to be unconstitutional. But on the many disputed questions where there is no such consensus, the president will usually be able find administration lawyers who will tell him what he wants to hear. To his credit, Ackerman is aware of this possibility, and recommends a creative institutional fix in his recent book: a new quasi-independent tribunal for assessing constitutional issues within the executive branch. I am somewhat skeptical that his approach will work, and it may well require a constitutional amendment to enact. I may elaborate these points in a future post, if time permits.

Regardless, for the foreseeable future, the main constraints on unconstitutional presidential activity must come from outside executive branch – that is, from Congress, the courts, and public opinion. These constraints are highly imperfect. But they do impose genuine costs on presidents who cross the line. Ackerman cites the Watergate scandal, Iran-Contra and the “torture memo” as examples of the sorts of abuses of executive power that need to be restricted. True enough. But it’s worth remembering that Nixon was forced to resign over Watergate, Reagan paid a high political price for Iran-Contra, and the torture memo was a public relations disaster for Bush, whose administration eventually ended up withdrawing it (thanks in large part to the efforts of Jack Goldsmith). On the other side of the ledger, Bill Clinton paid little price for waging an illegal war in Kosovo, though he avoided it in part by keeping that conflict short and limited. It remains to be seen whether President Obama will suffer any political damage over Libya.

A bipartisan group of ten members of the House of Representatives recently filed a lawsuit challenging the constitutionality of the US military action in Libya. Meanwhile, Speaker of the House John Boehner has sent a letter to the president stating that the Obama Administration will be in violation of the 1973 War Powers Act unless they get congressional authorization by June 19.

It is unlikely that Kucinich’s lawsuit will prevail in the courts. Judges will probably throw it out because it raises a “political question” or on other procedural grounds, such as standing. Nonetheless, I think Kucinich and his allies are right on the merits. The Libya intervention has long since passed the point where it is large enough to be considered a war. And only Congress has the power to declare war under the Constitution. Therefore, the war is unconstitutional unless and until the president gets congressional authorization. This is true regardless of whether or not the judiciary issues a ruling on the subject. Congress and the President have an independent duty to obey the Constitution even when the courts do not force them to do so. Then-Senator Barack Obama got it right back in 2007, when he 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.” I discussed the relevant constitutional issues in more detail here, here, and here. This is one of the rare issues where Dennis Kucinich and I agree.

Boehner’s War Powers Act argument raises a different set of issues. The Act requires the president to get congressional authorization for any deployment of military forces in “hostilities” abroad within 90 days of the start of the conflict. It’s pretty obvious that the Libya intervention involves the kind of “hostilities” covered by the Act, and that the administration will therefore be in violation of the Act if it doesn’t get congressional authorization soon. The Administration argues that the War Powers Act does not apply because “U.S. operations [in Libya] do not involve sustained fighting or active exchanges of fire with hostile forces.” This argument is barely worthy of response. US warplanes have been bombing Libyan forces for weeks, and the Libyan troops have returned fire (even if ineffectively). This state of affairs sure looks like “sustained fighting” and “active exchanges of fire” to me.

However, there is a longstanding dispute over the constitutionality over the War Powers Act itself. Numerous presidents, legal scholars, and even members of Congress have long argued that it usurps the constitutional prerogatives of the executive. The latter include Speaker Boehner himself, who previously questioned the Act’s constitutionality and even voted for its repeal. In my view, the Act is constitutional because it exercises Congress’ Article I power to “make rules for the Government and Regulation of the land and naval Forces.” This authority includes the power to regulate the time and place of the armed forces’ deployment. But there are serious arguments on the other side of this dispute as well. Be that as it may, the Libya intervention is illegal regardless of the legal status of the War Powers Act. Even in the absence of that law, the president still could not start a war without congressional authorization.

Legal questions aside, the growing willingness of Congress to challenge Obama over Libya illustrates the political dangers of waging war without congressional approval. If anything goes wrong, the president ends up taking all the political blame. That’s why most presidents have in fact sought congressional authorization for major military actions, whether or not they believed it to be legally necessary. President Obama can reduce his political exposure if he now gets congressional support or if he quickly brings the conflict to a successful conclusion. If he does neither, his political problems are likely to get worse. Boehner’s new-found willingness to challenge Obama on this issue could be a sign of things to come.

UPDATE: The full text of the Administration’s report to Congress defending the Libya intervention is available here. While the report makes a reasonable policy argument for the administration’s actions, the legal argument (pg. 25) is extremely weak. In addition to the point analyzed above, the report emphasizes that the majority of air strikes are now being flown by European planes, rather than American ones. However, it acknowledges that US forces are still launching airstrikes for “the suppression of enemy air defense and occasional strikes by unmanned Predator UAVs against a specific set of targets.” That sure sounds like armed “hostilities” and “sustained fighting” to me.

UPDATE #2: The full text of Boehner’s letter to the president is available here [HT: commenter David W.].

The LA Times has an article describing how ROTC programs have returned to many elite universities in the wake of the abolition of the Don’t Ask Don’t Tell policy:

Helped by the recession, more active recruiting and a sea change in student perceptions of the military, enrollment in ROTC programs on college campuses is booming.

Even with ongoing U.S. involvement in conflicts in Afghanistan, Iraq and now Libya, participation in the program has surged 27% over the last four years — to 56,757 men and women, according to the Defense Department. The military boosted the number of ROTC scholarships to help expand the wartime officer corps, and the recession made the offers attractive to students.

Today’s college students, who never faced a military draft and whose childhood memories include the terrorist attacks of Sept. 11, 2001, are more receptive than their parents’ generation to seeing fellow students in uniform. Returning veterans who served in Iraq and Afghanistan and are now enrolled in college also create a more sympathetic, and familiar, image of the military.

In another sign of the changing times, the congressional rescinding last year of the “don’t ask, don’t tell” ban on gays serving openly in the military has recently led Stanford, Harvard and several other elite universities to take steps to welcome the ROTC back to their campuses for the first time in 40 years.

On-campus military training still raises hackles for some. Yet even critics acknowledge that most current college students are willing to accept the ROTC.

I previously wrote about the return of ROTC here and here. Although I thought that DADT was a shortsighted and unjust policy, I also argued that banning ROTC and military recruiters from campus was not the right way to combat this form of anti-gay discrimination. Be that as it may, the return of ROTC to schools that had previously banned it is a positive development.

The debate over the morality and legality of targeted killing has been rekindled by the death of Osama Bin Laden and shows no sign of stopping. But most of the debaters have overlooked a key point. If it is moral and legal to individually target uniformed enemy military officers, surely the same goes for leaders of terrorist organizations. It cannot be the case that law and morality give the latter greater protection than the former. I made this point in a recent statement that got quoted by Al Jazeera (not a media outlet that I would ever have expected to be cited by, but they asked me to comment, so I did):

Ilya Somin, a professor at George Mason University’s School of Law, echoed Greenberg’s argument that “targeting individual enemy combatants in war is perfectly legal and moral”.

Somin points at US targeting of Admiral Isoroku Yamamoto, the commander of the Japanese fleet during World War II, and the British and the Czechs’ killing of German SS General Reinhard Heydrick [sic] in 1942, as precedents.

“Surely international law does not give terrorist leaders greater protection than that enjoyed by uniformed soldiers such as Admiral Yamamoto.”

“And if it is legal to individually target the commander of a uniformed military force, it is surely equally legal to target the leader of a terrorist organisation, including Osama bin Laden,” he told Al Jazeera.

To my knowledge, hardly any serious commentators claim that the targeted killing of enemy military commanders such as Yamamoto and Heydrich is either illegal or immoral. With the possible exception of Justice John Paul Stevens (who questioned the morality of the Yamamoto attack, but not its legality), everyone understands that individual military officers are legitimate targets. A capable high-ranking officer is a military asset in much the same way as an individual anonymous mass of low-ranking soldiers. In Heydrich’s case, there is the complicating factor that, as one of the architects of the Holocaust, he was an even greater criminal than Bin Laden. However, this was not the reason why he was targeted for assassination by the Allies (who in early 1942 did not yet know of his crucial role in the Holocaust). And Admiral Yamamoto was not guilty of committing any atrocities; the US targeted him simply because he was a more effective commander than his likely replacements.

What is true of uniformed officers surely also applies to leaders of terrorist organizations such as al Qaeda. The latter, too, represent enemy military assets that we can legitimately target in wartime. If anything, targeting terrorist leaders is more defensible than targeting individual uniformed officers. Unlike uniformed soldiers, terrorist leaders openly target civilians and don’t even pretend to obey the laws of war.

The only significant countervailing consideration is that terrorists are sometimes more difficult to distinguish from innocent civilians than military officers are. This creates the danger that unscrupulous governments will use bogus accusations of terrorism as a justification for killing people they dislike. This is a genuine problem. But it doesn’t justify a categorical ban on the targeted killing of terrorists. Instead, such abuses can be constrained in two other ways.

First, targeted killings, like other military tactics, can only be used against terrorists in conflicts that are large-scale enough to qualify as a war. One can legitimately debate the exact point at which a terrorist threat rises to that status. But surely al Qaeda, given the enormous scale of its atrocities, qualifies. The boundary between war and small-scale conflict is also disputable in the case of traditional armed confrontations between states, as the recent debate over the US military intervention in Libya demonstrates. As with many legal concepts, the boundary between “war” and other types of conflict is difficult to define with absolute precision. But most real-world cases are clear enough to readily be classified on one side of the line or the other.

Even when we do have an antiterrorist conflict that qualifies as a war, the deliberate targeting of innocent people under a pretextual accusation of terrorism can still be prosecuted as a war crime. In the same way, officials can be prosecuted for deliberately bombing a civilian target under a bogus claim that it is actually an enemy military unit. No one argues that the use of air strikes or artillery against military targets is categorically illegal or unjust merely because governments sometimes use bogus military rationales to justify attacks on civilians. The same reasoning applies to the abuse of targeted killings.

Sometimes, of course, a targeted killing may end up killing innocent people even though the government that ordered the operation genuinely believed that they were attacking a terrorist. But the same risk is present in conventional military operations against uniformed soldiers. Indeed, far more innocent civilians have been accidentally killed by air and artillery attacks aimed at military units than by targeted killing operations gone awry.

In sum, if we assume that the targeted killing of enemy military personnel is a legal and moral tactic in wartime, the same reasoning also justifies the targeted killing of terrorists.

UPDATE: I previously defended the morality of targeted killing of terrorists here.

UPDATE #2: Kevin Jon Heller responds to this post here, but offers no substantive critique of my argument. He seems to assume that it is obviously wrong to believe that there is no “difference between targeting a military officer in an international armed conflict and targeting a terrorist in something that Ilya Somin is really convinced is a war,” but doesn’t explain why. He also accuses me of claiming that “everything the US does is fine,” which of course I did not say. Heller also conveniently ignores the reason I gave for why the conflict with al Qaeda qualifies as a war: the massive scale of Al Qaeda’s terrorist activities.

UPDATE #3: Heller responds again in an update to his post. He claims that he didn’t make a substantive argument because I didn’t either. But of course my post notes multiple relevant similarities between terrorists and enemy uniformed military officers. Heller also points to this earlier post, where he claims that he addressed “precisely the IHL issues that [Somin] ridicules.” Setting aside the point that I didn’t “ridicule” anything, Heller’s earlier post actually reaches a conclusion very similar to mine:

I have no doubt that killing UBL was legal. To begin with, I think the applicable legal regime is international humanitarian law (IHL), not international human-rights law (IHRL) — a conclusion that can be reached in a number of different ways. The best rationale is that UBL was a member of an organized armed group (”original” al Qaeda) taking part in the armed conflict in Afghanistan. In the alternative, I think we can say (although it is a closer call) that the hostilities in Pakistan rise to the level of armed conflict and that UBL was a member of an organized armed group (original al Qaeda or al Qaeda Pakistan, if the two are distinct entities) taking part in that conflict. Either way, UBL was legitimately targetable with lethal force at any time, subject only to the principles of distinction and proportionality.

Indeed, Heller’s theory of when targeted killings can be used against terrorists is actually broader than mine. He seems to believe that we can target them any time they are members of “an organized armed group” engaged in an “armed conflict” whereas I argued only that we can do so when they are engaged in an armed conflict that qualifies as a war.

UPDATE #4: In this CNN video, former Clinton administration solicitor general Walter Dellinger makes the argument that killing Bin Laden (and presumably other similarly situated terrorists) was legal because he was an “enemy combatant.” Notice that Dellinger’s argument, like mine, does not distinguish between enemy combatants who are uniformed members of a military and those who are not.

UPDATE #5: Kevin Jon Heller digs his hole deeper in a further update to his post:

Somin replies again, and only makes things worse for himself. He claims that “Heller’s theory of when targeted killings can be used against terrorists is actually broader than mine. He seems to believe that we can target them any time they are members of ‘an organized armed group’ engaged in an ‘armed conflict’ whereas I argued only that we can do so when they are engaged in an armed conflict that qualifies as a war.” Somin obviously doesn’t understand my post, because I was quite clearly discussing targeting in non-international armed conflict, not in “armed conflict” generally, which is a meaningless concept in terms of IHL.

That said, Somin is absolutely right that his view of targeted killing is narrower than mine — just not in the way he imagines. It is, of course, legally impossible for a state to be in a “war” — i.e., in an international armed conflict — with a non-state actor like al Qaeda, as the Supreme Court recognized in Hamdan.

Nothing in Heller’s argument turned on a distinction between “international” and “non-international” armed conflict, unless he is prepared to claim that targeted killing is illegal in the former. Indeed, the earlier post Heller references does not even mention that distinction. As for Hamdan, the Supreme Court majority opinion in that decision repeatedly refers to the “war with al Qaeda” and also describes the Civil War as a “war,” even though the latter was not an international armed conflict, since neither the US nor any other nation recognized the Confederacy as an independent state. Clearly, the Court does not share Heller’s view that it is “impossible” for a state to be in a war with a non-state actor. The Court did rule that the war with al Qaeda was not an “international armed conflict” because it is not against a state. But, in its view, at least some non-international armed conflicts still qualify as wars.

This Thursday, I will be taking part in a panel on the legal issues raised by US intervention in the Libya, sponsored by the George Mason University International Law Society. The panel is entitled “Is There Any Law to Hold Us in Libya?” and will be held at George Mason University School of Law at noon. The address is 3301 Fairfax Drive in Arlington, Room 121.

The other panelists will be my law school colleague Jeremy Rabkin, Professor Jeremy Mayer of the GMU School of Public Policy, and Professor Agnieszka Paczynska of the Institute for Conflict Analysis and Resolution.

Perhaps best of all, there will be free food, including pizza.

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

National Review has posted a symposium on the constitutionality of the Libya intervention. The symposium includes a large number of legal scholars and commentators, mostly conservative ones, as one would expect from a conservative publication. Interestingly, most of the participants reject the view (advanced by John Yoo and some others in the George W. Bush administration) that the president has unilateral authority to commit US forces to battle at any time, regardless of the scale of the conflict envisioned. My own contribution to the symposium is here. It largely tracks the position I outlined in greater detail in several VC posts on this issue (see here, here, and here).

My bottom-line view is that, while the president can undertake small-scale military actions on his own, engagements large enough to amount to a “war” require congressional authorization, unless the president is responding to an actual or imminent attack. The fact that we cannot draw an absolutely precise line between the two categories doesn’t mean that the distinction between them is meaningless, any more than our inability to precisely specify the exact minimum height at which a person can be considered “tall” proves that there is no meaningful difference in height between a seven foot tall man and one who is only five feet tall.

Charlie Savage of the New York Times reports that the Obama Administration is arguing that the Constitution does not require congressional authorization for the Libya intervention because it is not a “war,” but merely some smaller scale of military action:

“The 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,” Mr. Obama told The Boston Globe in December 2007.

The administration’s legal team appears to be distinguishing between a full war and a more limited military operation, on the theory that the Libyan intervention falls short of what would prompt any Congressional authority to control decisions about whether to initiate hostilities.Asked about Mr. Obama’s 2007 statement, Tom Donilon, Mr. Obama’s national security adviser, said Monday that the administration “welcomes the support of Congress in whatever form that they want to express that support.” But, Mr. Donilon added, Mr. Obama could authorize the operation on his own.

“This is a limited — in terms of scope, duration and task — operation, which does fall in the president’s authorities,” he said.

As I have pointed out here and here, this may be a reasonable argument if the Libya operation remains short and very limited in scale. But if it drags on or the fighting escalates, the administration’s legal position will become increasingly tenuous. Moreover, as Jack Goldsmith points out, the administration may be relying on Clinton-era arguments justifying the 1994 Haiti and 1995 Bosnia interventions. But those arguments relied heavily on the notion that the interventions in question were “consensual” (US forces had been invited by the governments of those countries). By contrast, the Libyan government certainly hasn’t invited us to bomb its forces, and the administration has not recognized the rebels as as the “true” government in Gaddafi’s place.

Some might say that none of this really matters. After all, no court is likely to enjoin military operations against Libya, even if a lawsuit were filed. But the president and Congress have an independent duty to uphold the Constitution even if courts cannot or will not force them to do so. We should strive to establish a political culture where all three branches of government take their constitutional obligations seriously. I am not naive enough to believe that politicians will ever do so fully. But we can certainly do better than the present situation where most of our elected leaders give the Constitution no more than lip service unless forced to do by defeat in Court.

Constitutional considerations also matter in so far as they might sway public opinion. While people who strongly support or strongly oppose the Libya intervention are unlikely to change their minds on the basis of constitutional concerns alone, many observers are on the fence. I am one such fence-sitter myself, since I see some strong arguments on both sides of the policy issue. The Libya action has split both the right and the left in interesting ways. In such a fluid situation, constitutional arguments might have a greater impact than in a case where partisan divisions are tightly drawn and most people have strong commitments to one side or the other.

Harvard law professor Jack Goldsmith, a leading constitutional law and international law scholar, has an article in Slate defending the constitutionality of President Obama’s use of force against Libya without congressional authorization.

I am a big fan of Goldsmith and his academic work. He’s one of the leading scholars in his field. In this case, however, I think his argument falls short.

Goldsmith makes two central claims: that the original meaning of Congress’ power to declare war is ambiguous and that longstanding practice supports presidential power to initiate war unilaterally. There is some merit to both arguments. But both are much weaker than Goldsmith suggests.

I. The Problem of Ambiguity.

Here is Goldsmith’s argument based on ambiguity:

Legal scholars disagree about the original meaning of the Constitution’s conferral on Congress of the power “to declare war.” Many contend it required Congress to formally approve all uses of U.S. military force abroad, save, as James Madison said at the Convention, in situations needed to “repel sudden attack.” Others maintain the “declare war” clause provides more leeway, allowing the president to use force abroad as long as the force does not rise to the level of “war,” whatever that means. Yet others argue that the framers meant simply to give Congress the authority to signal under international law a state of war; the real work in controlling presidential initiation of force, under this view, was Congress’ control over appropriations and the size of the standing army.

It is true that there is disagreement about these issues among legal scholars. But under either the first or the second view that Goldsmith lists, a large-scale military action that involves US forces in prolonged combat surely qualifies as a “war.” There is indeed some ambiguity about exactly where a small-scale “conflict” ends and “war” begins. But the fact that we cannot draw a precise line between the two does not mean that there aren’t numerous cases that clearly fall on one side or the other. We can’t draw a precise line between people who are “short,” those who are “average” height, and those who are “tall.” But that doesn’t mean that we can’t easily determine that Pee Wee Herman is short, while Shaquille O’Neal is tall.

Similarly, the existence of ambiguous borderline cases does not prevent us from readily concluding that Vietnam, Korea, and the two Iraq conflicts are wars, while President Clinton’s 1998 decision to launch a few missiles against Al Qaeda camps in Afghanistan probably wasn’t. As I noted in my previous post on this subject, the small scale of US military involvement in Libya so far might put the case in the ambiguous category. But if US air and missile strikes against Gaddafi continue for any great length of time, it will fairly rapidly clearly become a war – even if we cannot pinpoint the exact moment when it does so.

As for the claim by a few legal scholars such as John Yoo that Congress’ power to declare war does not limit the president’s ability to initiate force at all, the historical evidence is overwhelmingly against it. Even Alexander Hamilton – the biggest supporter of sweeping presidential power among the Founders – admitted that “the Legislature have a right to make war” and that “it is…the duty of the Executive to preserve Peace till war is declared.”

II. Historical Practice.

Goldsmith also argues on the basis of historical practice:

[P]ractice confirms that the president, under his commander-in-chief and other executive powers, has very broad discretion to use U.S. military force in the absence of congressional authorization. Presidents have done this, in military actions large and small, over 100 times, since the beginning of the republic. The largest and most consequential unauthorized military action is the Korean War launched by President Truman in 1950. Another big conflict without congressional authorization—and, indeed, in the face of an overt congressional vote that declined to provide such authorization—was President Clinton’s Kosovo intervention in 1999. Some less significant unilateral uses of military force in the past 30 years include Haiti (2004), Bosnia (1995), Haiti (1994), Somalia (1992), Panama (1989), Libya (1986), Lebanon (1982), and Iran (1980)….

Critics will claim that a pattern of consistently violating the Constitution cannot remedy the illegality of these actions. But that is not the right way to view this pattern. An important principle of constitutional law—especially when the allocation of power between the branches is at issue—is that constitutional meaning gets liquidated by constitutional practice.

I am skeptical that a pattern of practice automatically validates what would otherwise be violations of the Constitution. Did decades of longstanding segregation laws validate the constitutionality of Jim Crow?

Even if practice does have the force Goldsmith attributes to it, that practice is much less clear than he suggests. Most of the cases of “unilateral” executive use of force Goldsmith cites were small-scale actions where little or no actual combat was expected. These examples don’t qualify as “wars” unless virtually any use of force does. Such cases include Haiti, Somalia, Lebanon, and others. Other cases on Goldsmith’s list (e.g. – Libya 1986 and Iran 1980) were responses to terrorist attacks sponsored by the regime in question. Even those who advocate a narrow interpretation of presidential war power don’t deny that the president can use force to respond to direct or imminent attacks on Americans. The 1989 Panama intervention – a much larger use of force – also falls within that category. Before the US invasion, Panamanian dictator Manuel Noriega foolishly declared that a “state of war” existed between the two nations and threatened US troops and civilians in the area of the Panama Canal. Both points were cited by President George H.W. Bush in his justification for the invasion.

As I have pointed out in the past, Bill Clinton’s 1999 Kosovo War really is an example of large-scale unilateral use of military force by the president in the face of congressional opposition. But there are many more cases where the president sought and obtained congressional authorization in advance of military action or very soon after it began. These include Vietnam, Afghanistan, the two Iraq conflicts and others. Going back further in time, presidents also got congressional authorization for the War of 1812, Mexican War, the Spanish-American War, and the two world wars. Indeed, the actual historical practice suggests that the larger and more unambiguously “war”-like a planned military action is, the more likely the president is to seek congressional authorization and to avoid action that Congress is unlikely to endorse.

The Korean War is a major exception to this pattern, and I apologize for previously mistakenly suggesting that it was not. President Truman never sought congressional authorization for that conflict, even though he could easily have gotten it. However, Harry Truman’s decision to enter the war did enjoy overwhelming congressional support and most of the congressional and public criticism of his conduct of the fighting came from Republicans who claimed that he wasn’t acting aggressively enough.

In sum, the historical record cuts both ways. But there are many more cases where presidents have gotten congressional authorization for large-scale military action than those where they have not.

Several liberal Democratic members of Congress are claiming that President Obama’s decision to use force against Libyan dictator Muammar Gaddafi requires congressional authorization:

A hard-core group of liberal House Democrats is questioning the constitutionality of U.S. missile strikes against Libya, with one lawmaker raising the prospect of impeachment during a Democratic Caucus conference call on Saturday.

Reps. Jerrold Nadler (N.Y.), Donna Edwards (Md.), Mike Capuano (Mass.), Dennis Kucinich (Ohio), Maxine Waters (Calif.), Rob Andrews (N.J.), Sheila Jackson Lee (Texas), Barbara Lee (Calif.) and Del. Eleanor Holmes Norton (D.C.) “all strongly raised objections to the constitutionality of the president’s actions” during that call, said two Democratic lawmakers who took part.

Kucinich, who wanted to bring impeachment articles against both former President George W. Bush and Vice President Dick Cheney over Iraq — only to be blocked by his own leadership — asked why the U.S. missile strikes aren’t impeachable offenses….

Saturday’s conference call was organized by Rep. John Larson (Conn.), chairman of the Democratic Caucus and the fourth-highest ranking party leader. Larson has called for Obama to seek congressional approval before committing the United States to any anti-Qadhafi military operation.

“They consulted the Arab League. They consulted the United Nations. They did not consult the United States Congress,” one Democrat lawmaker said of the White House. “They’re creating wreckage, and they can’t obviate that by saying there are no boots on the ground. … There aren’t boots on the ground; there are Tomahawks in the air.”

Andrew McCarthy, a prominent conservative legal commentator, makes a similar argument here.

This is another of those rare cases where I agree with Dennis Kucinich, though I would not go so far as to advocate impeachment. Unlike Kucinich (and Andrew McCarthy), I tentatively think that Obama has chosen the right policy on Libya. But whether right or not, military action on this scale surely does require congressional authorization under the Constitution.

Article I of the Constitution clearly gives Congress, not the president, the “power… to declare War.” The Founding Fathers sought to avoid a situation where one man had the power to commit the nation to war on his own initiative.

It’s arguable that some small-scale uses of force don’t rise to the level of a war and therefore can be undertaken by the president acting alone under his authority as commander-in-chief of the armed forces. President Reagan’s 1986 airstrike on Libya might be an example, as were Bill Clinton’s 1998 missile strikes against Al Qaeda base camps in Afghanistan. If all the Obama administration intends is to launch a few Tomahawk missiles, perhaps this action would fall in the same category. However, it seems highly likely that the president plans to go well beyond this. Military operations are likely to continue for some time, perhaps until Gaddafi has either been overthrown or at least compelled to leave the rebel-controlled parts of Libya unmolested. If so, it seems quite clear that congressional authorization for military action on that scale is required.

Congressional authorization also might not be needed if all the president is responding to an ongoing or imminent attack. However, Gaddafi has not attacked the US in recent years (though he did sponsor numerous anti-American terrorist attacks in the 1980s and early 90s) and there doesn’t seem to be any evidence that he had any immediate intention of doing so.

As Andrew McCarthy recognizes, congressional authorization need not specifically use the words “declaration of war.” It is enough that it clearly authorize large-scale military operations against the enemy in question, as the Authorization for the Use of Military Force against Al Qaeda and the Taliban did in 2001.

For all the hoopla about the supposedly overwhelming growth of presidential power, presidents have in fact gotten advance or nearly simultaneous congressional authorization for almost every major military intervention the United States has undertaken since World War II. This was true in Korea, Vietnam, the two Iraq wars, and many other cases. Bill Clinton’s 1999 military action in Kosovo was the one time during that period when a president entered into a major conflict in the face of actual opposition by the majority in Congress. In part for that reason, Clinton strictly limited the scale of American involvement, avoiding the use of ground forces and ensuring that US troops didn’t suffer any combat casualties. Perhaps Obama plans to do the same thing with Libya; but if so, he will be in a difficult position if more coercion is needed to succeed.

In addition to constitutional reasons, presidents also have strong political incentives to seek congressional support for military action. Without it, the president will have to take the sole political blame if anything goes wrong.

In this case, I have little doubt that Obama could get congressional authorization if he tries to do so. There is considerable Republican support for the Libya intervention, and Obama can also count on the support of most of his fellow Democrats. The Democratic leadership in both the House and the Senate is backing him, despite the opposition of some House liberals.

For both constitutional and political reasons, the administration should seek a congressional vote as soon as possible.

UPDATE: I have changed the spelling of the Libyan dictator’s name in this post to what seems to be the more common English usage at this time: “Gaddafi.”

UPDATE #2: It’s worth noting that then-Senator Obama reached a similar conclusion back in 2007, when he said the following:

The 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.

Obama’s 2007 position is actually more sweeping than mine, since it appears to apply to all military attacks, whereas I think that the president can unilaterally launch small-scale military operations that are not large enough to amount to a war.

UPDATE: I should acknowledge that President Truman in the Korea War never did get a clear congressional authorization for the war. I was wrong to suggest otherwise and apologize for the error. On the other hand, Truman’s decision to enter the war did enjoy overwhelming support in Congress, and most of the congressional criticism of his waging of the war came from Republicans who claimed that he wasn’t waging it aggressively enough.

So argues Benjamin Wittes (Lawfare), and suggests that there’s a pattern (see his earlier posts here and here). I read his posts and the editorials, and I think his criticisms are generally sound. Here’s an excerpt:

The general point is that the Times repeatedly states, often in very strong terms, that detention without trial is unlawful. And it refuses, in doing so, to give a minimally correct account of the body of cases that say precisely the opposite. The latest editorial on detention, published yesterday, reads in relevant part as follows:

Much of the public and most politicians seem to feel that as long as these suspects are held out of sight on the island of Cuba, they can be held indefinitely without trial, in violation of basic constitutional protections and international treaties.

Once again, the Times is clearly alleging that detention without trial is unlawful — contrary both to “basic constitutional protections” and international law. And once again, it is doing so either without reference to or by grossly mischaracterizing a large and growing body of case law that stands for precisely the opposite proposition — the proposition that detention without trial for counterterrorism suspects can be lawful under the AUMF and, indeed, is an inherent incident of the power to wage war…. The Times is actively and repeatedly propounding a theory of law to its readers as though it were an established principle that the federal courts have, in fact, consistently rejected. It is no more complicated or defensible than if the Times described its preference for the legality of same sex marriage (which I share) by describing same-sex marriage as “legal in every state.”

Note that the Times is not simply saying that particular detentions might be illegal, for instance because there hasn’t been an adequate military combatant status review tribunal hearing to determine whether the detainee is indeed an enemy combatant, or because the conditions of confinement are allegedly inadequate. Rather, the claim (in this editorial and in others) appears to be that indefinite detention of suspected enemy combatants without civilian trial is unconstitutional; that claim is indeed false as a matter of existing precedents. And while in context “this is unconstitutional” may sometimes be understood by readers of some kinds of publications as “I think this is unconstitutional under the right reading of the Constitution, whatever courts might say,” I agree with Wittes that this is not how a casual reader would understand the statement in the Times editorials.

Presswires are reporting that Judge John Bates has dismissed the case which the ACLU and the Center for Constitutional Rights sought to bring on behalf of Anwar Al-Aulaqi’s father, contesting the ability of the President to target an American citizen hiding abroad in Yemen who the government says is a targetable participant in a terrorist group covered by the AUMF.  (Thanks commenter Dom, the opinion is here; thanks also Instapundit, & corrected grammar above.)  The news story points to standing problems for the father.  Says the AP:

U.S. District Judge John Bates said in a written opinion Tuesday that al-Awlaki’s father does not have the authority to sue on his son’s behalf. But he says the case raises serious issues about whether the United States can plan to kill one of its own citizens.

Quick update:  On a fast read of the opinion – well, anyone interested in these questions needs to read it post haste.  Far from merely being a narrow discussion of standing, it goes on to discuss the political question doctrine in great detail, and concluding on this point:

…this Court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case, see El- Shifa, 607 F.3d at 841 (quoting Baker, 369 U.S. at 211), and the doctrine does not contain any “carve-out” for cases involving the constitutional rights of U.S. citizens. While it may be true that “the political question doctrine wanes” where the constitutional rights of U.S. citizens are at stake, Abu Ali, 350 F. Supp. at 64, it does not become inapposite. [p. 77 opinion, emphasis added]

But opinion contains much, much more.  A very interesting discussion of why the Alien Tort Statute does not offer an avenue; state secrets doctrine; there is a lot of stuff here.  More when I’ve read it more closely.  It is an impressive work in judicial opinion-crafting by Judge Bates, regardless of what one thinks of the outcome.

Update:  Larkin Reynolds at Lawfare offers a bunch of snippets from the opinion.  Also at Lawfare, Bobby Chesney offers an objective outline, sans commentary, of the quite long opinion, and Jack Goldsmith and Ben Wittes weigh in with commentary.

I was puzzled, frankly, at the coverage in both the Post and the Times this morning. Charlie Savage, for example, seemed to think that the language I quoted above was what Judge Bates rejected, if I understood his writeup correctly. Rather, this is what Judge Bates found, albeit in a collateral and perhaps purely dicta way, given that he did not need to reach this once he had dismissed on standing grounds. The best one might say for plaintiffs here is that Judge Bates confined himself to narrow facts, even while concluding that the executive’s decision was unreviewable.

Basically, I agree with Ben’s five points at Lawfare, and agree with him that the ruling is likely bullet-proof on appeal. The one point I’d add to Ben’s discussion is that it seems to me that Judge Bates’ motivation was to provide at least the beginning of clear institutional settlement on a crucial aspect of the executive’s national security prerogatives, even if it was arguably “mere” dicta.

I’d also note in passing that this holding illustrates in a backhanded way one of the aspects of the Alien Tort Statute that I find troubling, at least as applied to conduct outside the territorial United States. Viz., it confers special rights upon aliens that are not available to US citizens – including, in this case, a citizen named Al-Aulaqi. His alien father can at least begin to bring a claim that the citizen son cannot, because he is, well, not an alien. This makes sense to me in one context only, viz., when the conduct occurs in the territorial United States, and the alien present in the US might suffer at the hands of state courts or US citizens, who themselves have ample avenues open to them; it levels the playing field. Abroad, arguably, it gives aliens something that US citizens don’t have.

(c) Jean-Marie Simon

Over at SSRN, I have posted up a very old article by Jean-Marie Simon and me, Permanent Counterinsurgency in Guatemala.  It appeared in 1987 in the critical theory journal Telos (No. 73, Fall 1987, 9-46).  Here is the abstract, which includes a bit of information on why I have posted it up now:

This 1987 article in the critical theory journal Telos examined the counterinsurgency carried out in Guatemala during the late 1970s and 1980s by the Guatemalan army and security forces, and the country’s transition to civilian democracy in 1986 under the presidency of Vinicio Cerezo. The article, as an exercise in radical sociology of the Left, argues sharply that the transition is little more than the appearance of democracy, while beneath lies a “permanent counterinsurgency” and authoritarian control by the army. Based on extensive interviews by the authors with many actors in Guatemala, including leading military officers, it offers an inside look at how the Guatemalan military leadership conceived its extensive and brutal counterinsurgency campaign, particularly by comparison to other conflicts in Central America at the time – El Salvador and Nicaragua in particular.

Although parts of the account are of course dated twenty years later (it suffers particularly from the authors’ youthful radical social theory, in which seemingly nothing, not even in principle, could show “actual” democracy as opposed to mere false consciousness) it is noteworthy for two features today. First, it offers an uncompromising account of what counterinsurgency requires, in the view of the Guatemalan army, including its view of the US-advised strategy of “hearts and minds” in neighboring El Salvador. That account remains relevant today by comparison to US counterinsurgency strategy in Iraq and Afghanistan. Second, it observes that the success of the Guatemalan army’s countersinsurgency depended crucially upon its internal nationalist coherence against corruption, whether by the private interests of the oligarchy which, strikingly, is clearly distinguished as often working against the interests of the “nation” by army officers – or the then-emerging drug trade.

Twenty years later, Guatemala, including its military, oligarchs, and others, are all deeply enmeshed in the drug trade and the effect is tearing apart society in ways often more extreme than, but overshadowed by, neighboring Mexico. Continue reading ‘Counterinsurgency Then and Now’ »

I’m at Penn Station, waiting for the train from New York City back to DC, happy but slightly dazed after the intense three day conference in celebration of the 35th anniversary of Michael Walzer’s Just and Unjust Wars that I mentioned in an earlier post. My thanks and congratulations to Gabby Blum, Ian Scobbie, and Joe Weiler for organizing it, and to NYU for hosting it. I was humbled to be in the presence of so many great intellectuals, not just in law, but in moral philosophy – Professor Walzer himself, Jean Elshtain, Thomas Nagel, Paul Kahn, David Luban, and many other luminaries in philosophy and other disciplines.

Three intense days, with Professor Walzer offering a few short comments at the end. I think it is okay to paraphrase them from my notes. His final comments go to a running theme of the meeting – the distinction, and its persistence or not, of a moral and legal independence of jus in bello from jus ad bellum. He says that even though a defender of their independence, they come together in the following crucial and urgent moral way. (This is my paraphrase, not a direct quote, and should not be quoted as something directly said by Professor Walzer or taken as suggesting that he has approved any of this as a quote):

The worry is that if you fight in accordance with the legal regimes of international law, you can’t win. That is a major challenge, and I was very happy that General [Charles] Dunlap denies that and says you can. Still, it is a worry. It must be possible for the good guys to win within the rules, at least as a possibility, but also as a real possibility. That’s where ad bellum and in bello come together: to win a just war fighting justly.

But suppose it isn’t possible. That’s what moral philosophers partly do – worry. What follows if it is not possible, or not a real possibility? What then? Well, the rules would have to be changed. We would have to reconsider the content of the rules jus in bello if we could not live within jus in bello and still have the just side win on the battlefield.

In my own crude, unphilosophical way, I suppose this means … jus in bello is not a suicide pact.

A general observation about the tenor of Professor Walzer’s (paraphrased) remark here. Just and Unjust Wars is taken in the United States academic and human rights advocacy community as the manifesto of the introduction and, more emphatically, the triumph of individual human rights in war. In part that is right. But it is correct in the sense of rejecting “realism,” in the amoral Hobbesian “by a necessity of nature” sense, on the one hand – but not thereby embracing a genuinely full Christian view of just war as an expression of immanent natural law, on the other hand.  The meta-theory underlying Walzer’s normative ethics of war is one of making it secular and an expression of modernity (and the touchstone for modernity, something quite alien to Catholic ethics in any very strong sense, the hegemony of consent, and its obverse, something central to Walzer’s ethics, resistance to coercion, or resistance to ‘un-consent’).  But it does so by giving up the full, immanent ground of God’s natural law. In the full Christian just war ethics, justice as such is the key concept, because it is an expression of the love of God for all his children, and not the far narrower and circumscribed (because “merely” human) notion of rights upon which Walzer relies, the obligations which we owe to one another because man is the measure of all things.

Rights gives up the fully foundational, fully immanent understanding of justice of Christian just war ethics.  It does so not in favor of relativism as to right and wrong in war, but in favor of something that seeks moral grounding and judgment in fact – and yet still vastly more contextual, contingent, and human than a fully realized theory of justice in war would offer. We see through a glass darkly, etc. – and, alas, that’s all we ever hope to do. And yet practical reason requires, as Walzer emphasizes in the opening chapters to Just and Unjust Wars, that we make moral judgments as best we can.  It is both what (descriptively) we do, even Athenian generals embarked upon atrocity and speaking in bad faith, but also what, in genuinely good faith, we ought to do.  Hence our need to argue about war and not merely pronounce upon it.

But that is a long ways, I at least would suggest, from the way in which the rights theory of war has taken Walzer’s work in its long elaboration in politics and institutions. Walzer’s remarks above point to something that I would see as a theme profoundly present in Walzer’s opening chapters in Just and Unjust Wars.  Viz., the book offers a theory of rights, yes, but a theory of human rights in war in the service of a moderate moral realism.  The qualifier is not unimportant.

Walzer’s original theory, as found in the book, is not a theory of rights in war that is somehow opposed to moral realism; quite the contrary.  Human rights in war is offered as a way give content to moderate moral realism, one that fills out (“does real work,” as Walzer puts it at the beginning of a later work, the marvelous Spheres of Justice) to the “moderate moral” part of that formulation.  But the formulation, moral realism, is itself a conjoining of “moral” and “realism.”  In that regard, it puts forth plural and not necessarily consistent demands, and sometimes those inconsistent demands will require tradeoffs and sometimes they will require genuinely tragic choices.  We usually think of this sense of pluralism of values leading to tragic choices in the tradition of Isaiah Berlin, and that is true, but I actually have something different in mind.

Pluralism of tragic choices that strives to avoid the trap of relativism on the one hand, and an angelic purity of rights to elide the tragic choices, on the other, leads to Walzer’s theory of rights – rights that are in some sense universal, but also contextual and contingent, which is to say, a human institution to human ends.  ”If it is not possible to win just wars fighting justly, then we will have to revise the jus in bello.”  Yes.  I myself have always linked Walzer’s view, not to the purist theories of rights which many rights advocates and academics seem to think that it is, but instead to sources that Walzer himself would probably find idiosyncratic (everyone else does), but I think fit.

When I read the opening chapters of Just and Unjust Wars, leading through the attack on amoral realism and the embrace of a certain rights-defined moral realism, and finally to the assertion that this is a theory of resistance to aggression in which, all other things being equal, one ought to resist, I find it wholly natural to think of the great French moralistes of the 20th century, Albert Camus and the poet and Resistance leader Rene Char.  Char, after all, referred to the war in his diary as “this time of damned algebra” and captured, haiku-like, the essence of the tragic choices of moral pluralism in one of his most famous expressions:

Bitter future, bitter future, a dance amongst the rosebushes.

The problem is, however, Walzer of Just and Unjust Wars – a book offering a moderate moral realism in inevitable tension with itself – is not how much of the world has read and “operationalized” the theory in the decades since.  In the public version of the theory of Just and Unjust Wars that has, so to speak, come to “own” the book, it is a theory of some quite (and increasingly) strident, if not absolutist, version of individual human rights in war, triumphing over the part about winning.  As Walzer seems to suggest above, that was not quite what he intended.

Interest in targeted killing and drone warfare is not letting up in intensity – at least to judge by the pace of events on the topic. Right on top of my debate with Notre Dame’s Mary Ellen O’Connell on this at Washington University two weeks ago, Professor O’Connell and the Brookings Institution’s (and Hoover Institution’s) Benjamin Wittes undertook another one, this past Saturday at International Law Weekend in New York. It was considerably more testy than the Washington University debate. Some in the audience were unhappy with the confrontational nature of the exchange; some thought it refreshingly direct; my view is the latter and congratulations to Vincent Vitkowsky for an excellent job of moderating the debate. I’m sure it will generate a lot of interest and a lot of pushback in several directions. Ben (I’m going to use first names in this post for both of them and hope they don’t mind) has posted up video of the event at Lawfare.

Ben has also added a second post with some transcription, specifically on the question of whether, if one takes Mary Ellen’s statements at what they say, Barack Obama is not therefore a “serial killer” for having directly ordered the CIA to carry out what Mary Ellen characterizes as “crimes” and Harold Koh at the least an aider and abetter. Ben has in mind, for example, statements in Mary Ellen’s widely noticed article, “Unlawful Killing with Combat Drones,” which among other things declares that “members of the CIA are not lawful combatants and their participation in killing—even in an armed conflict—is a crime.”

One might argue Ben’s choice of provocative words in the debate – serial killing – or one might argue various technical points over whether it is murder or not murder, whether or not there can be the proper intent given the presumed opinions of many lawyers advising inside the government (many of those questions came up, of course, in the detention-interrogation-rendition arguments as well). His fundamental point is to say, as far as I understand it (and if I do, I agree), if you declare that CIA participation is a crime, then it follows that somewhere there is a perpetrator. Not to go after him or her is to permit impunity; it is not a matter of saying, well, you are committing crimes, but all we want to do is persuade you to change your policies going forward to bring you into compliance with international law. Crime is a charge of more than mere non-compliance. If there is a crime, someone must be responsible for doing it, whether you call it murder, criminal extrajudicial execution, what have you.

And whether one calls these crimes serial killing, murder, extrajudicial execution, etc., they are still a large number of killings. It’s not the kind of crime that just happens to be a tort or civil infraction criminalized, but for which as a regulatory matter one can simply agree not to do it any more, like various of the lesser environmental “crimes” for which corporations routinely pay criminal fines in the domestic United States. Killing is not like that, presumably, at least not when it’s systematic, systemic, large-scale, and under direct orders.

The article by Mary Ellen specifically says who commits a crime – members of the CIA. Yet they are not acting as rogues in this, but rather under direct orders of the President. If it is correct to call the acts a crime, then it is correct to identify the criminals, and those criminals will have to include those who ordered them to do the crimes. So what is it to be? I think it a salutary reminder that one ought to be careful in cranking up the machinery of international criminal law over contested interpretations of international law. One risks either over-invoking it or trivializing it or both. I take it that was Ben’s larger point in seeking to force the question onto the table by insisting on using an ordinary, non-legal term like serial killing.

I have another concern beyond this, however. It goes to one of the responses in the debate from Mary Ellen when Ben insisted in pressing the point. It is that it would be politically unrealistic to consider going after Barack Obama or Harold Koh, so there is no point to raising the issue of criminality and, I took by implication, Ben was engaging in a strawman argument to do so. But why should it be seen that way? Ben did not assert the question of criminality in the first place, and then suddenly or unreasonably put it on the table, after all; it is not a proposition tossed up by Ben. “Crimes” as an issue were raised in the first place by Mary Ellen against CIA officers. Ben has pointed out that they are acting under perhaps the clearest, deliberately and (admirably, in my view) least deniable set of orders from the President of the United States in a long time on contentious national security matters. If there is a crime, there must somewhere be a criminal or else it is merely a series of unfortunate events; if there is a criminal, he or she did not act alone, because these agents acted under instructions from a principal.

So this is my concern: If it is politically unrealistic to consider going after Barack Obama and Harold Koh and Leon Panetta and Joe Biden, et al., and that is the reason (or a big part of it) for not pursuing criminal sanctions that follow upon criminality, well, one has to wonder when it will be politically realistic.   Continue reading ‘Targeted Killing and Drone Warfare Debate between Mary Ellen O’Connell and Benjamin Wittes’ »

Over the past year, I’ve been spending much time on the questions of drone warfare and the legal issues raised – many talks, panel discussions, debates, and so on.  In the course of those discussions, as well as discussions with many experts one-on-one, I’ve wanted both to clarify a couple of my views and acknowledge a change in how I would currently characterize some of what we might call the “legal geography” of armed conflict.

So, I have been strongly identified with, and have been robustly urging, that one possible ground justifying the use of drone warfare and targeted killing, as well as setting rules for its conduct, is the international law of self defense.  I maintain, and certainly continue to maintain, that there are circumstances in which the use of targeted killing can and as a proper legal description should be understood to be the use of force as a lawful act of self defense even though it takes place outside of an armed conflict, and even though that use itself does not create an armed conflict.  It seems to me, before as now, crucial to be clear of the existence of this category of the use of force as a lawful possibility for the United States, particularly looking down the road to conditions and situations that do not implicate the current struggle with Al Qaeda, has nothing to do with 9/11, is not covered by the AUMF – a new terrorist group with different terrorist aims, for example, emerging in Latin America or somewhere in Asia twenty-five years from now, and having no connection to any of today’s issues.

I have suggested that this is an appropriate way of characterizing the legal status of attacks carried out by the US in Yemen or Somalia, or elsewhere that terrorists might go in seeking safe haven, or by new groups emerging that increasingly are not directly linked to AQ even if they take inspiration and aims from it.  I have queried at what point jihadist groups threatening the US become only “notionally Al Qaeda” and part of our existing legal framework of a non-international armed conflict only in theory, increasingly remote from the reality.  Territory or legal geography of conflict matters in that, not because the armed conflict is inherently bound to a territory or geography, but instead because the group at issue is only tenuously connected to the group initially defined as part of the armed conflict – partly under domestic law considerations and partly under international law considerations.  The non-international armed conflict goes where the participants go; and likewise if new groups engage in co-belligerent action, then they become part of the armed conflict.  But it has seemed to me in the past several years that some of these groups are in other places and not obviously connected, except by a forced abstraction, to the groups under the AUMF.

I still think that is a perfectly good way to see the use of force.  The new groups present a threat; they present a threat in a place where the armed conflict is not actually underway with respect to them; the US targets them as self-defense in the absence of an armed conflict.  Alternatively, however, if you think either that the people you are targeting are part of the armed conflict to start with because they are linked sufficiently to AQ and the authors of 9/11, or even more directly because they are AQ or affiliates fleeing Pakistan or Afghanistan in search of new safe havens, then the case for viewing this as simply the continuation of the existing non-international armed conflict is also highly plausible.

I view these rationales as permissive, rather than a forced choice between them, and think that each is a perfectly plausible and justifiable way of looking at current actions in Yemen or Somalia.  With regards to Pakistan, insofar as those being targeted are as part of the counterterrorism campaign, that seems to me unremarkably part of the on-going armed conflict, albeit one that has broadened out to include Pakistan Taliban and various terrorist groups in Pakistan that have allied themselves with AQ.  The point, however, is that the question of whether the proper framework for legal analysis is armed conflict or self-defense begins not from geography but instead from the identity of whom you fight; if it is a genuinely unrelated group and, even more plainly as a hypothetical, a genuinely unrelated issue – a new form of transnational Maoism in the Andes, say – then the question of legal geography comes into play to ask whether hostilities of sufficient intensity, etc., suffice to evidence a non-international armed conflict.

This is a change in emphasis for me, and in part a shift in view; in the past I have emphasized far more the geography as to where hostilities are underway, but I am persuaded that the correct analytic frame is to ask “who” and then whether, “where” the fighting takes place, the threshold of sufficient hostilities has been met.  But this is in the context of understanding that in places such as Yemen, it seems to me the facts can be plausibly understood to fit either view.  Indeed, an important shift in my view concerning Yemen in particular is that as we understand better the relationships between Al Qaeda in the Arabian Peninsula and other groups in Yemen and AQ proper, the facts increasingly suggest that both in the past and even more strongly today, the best – and not merely a decently plausible – characterization is to understand them as part of the non-international armed conflict.  It seems to me that there are good legal grounds to understand Somalia and Yemen as attacks as individual acts of self-defense, but as I read the Woodward book and what John Brennan in particular says about the movement of AQ operatives into those new safe havens, and talk with well-informed reporters, those factual descriptions are persuading me that the better of the two views is to see attacks there as part of the on-going non-international armed conflict.  That would include the targeting al Al Aulaqi.

I also understand that the Obama administration has reasons grounded in domestic law for preferring to see the best international legal frame as non-international armed conflict in Yemen or Somalia.  This arises from its view that for domestic law purposes, the terms of the conflict are set by the AUMF, and not the discretionary scope of the executive.  I think this is perfectly plausible as an international law rationale – either seems to me available to it – and in any case, my reading of the facts on the ground in those places suggest that the administration is not simply making a “notional” argument by any means for how it sees attacks in Yemen or Somalia.  The Obama administration is on sound grounds in saying that the non-international armed conflict goes where those who participate go, and extends to groups that co-participate with them.  But that is a shift in my read of the facts from two years ago, and it is also a shift in emphasis as to taking geography into account.

As one government lawyer put it to me, the administration’s view is that, yes, it does have independent grounds for self-defense, exactly as Harold Koh said, and in an appropriate circumstance will invoke it nakedly, without recourse to an armed conflict.  But it also holds the view that once parties initiated a non-international armed conflict, and met the thresholds of intensity and all that, the same non-international armed conflict goes where they go, irrespective of geography.  As he immediately added, with notable weariness, this does not mean Predators over Paris, whether France or Texas; Yemen is not France.  Territorial integrity is an important, vitally important principle of international law – but it can be overcome where a state either cannot or will not control its territory – which is to say, assert the lawful sovereignty over territory for which it has both a privilege but an obligation.  No safe havens has also been a bedrock qualification on territorial integrity of states, as a matter of self defense and consistent state practice.

I am (still) completing a new essay on the operational roles of drones, a roster of strategic uses, one that leaves aside the legal issues in favor of trying to get an analytic handle on the increasingly variegated uses of drones and targeted killing.  It seems to me important for legal analysis because the variations are sufficiently great at this stage that different uses suggest different legal frameworks – some are involved in armed conflict, for example, and some might not be.  But as the argument over the use of drones in Afghanistan, Pakistan, Yemen, and beyond intensifies, I thought it would be worth taking a moment both to clarify and advance my own baseline legal position.  Thus:

Although asserting the framework of self defense, and elaborating its constraints based in necessity, discrimination, and proportionality is crucial, because not all uses of force by the United States will always and forever be instances of armed conflict, it does seem to me plausible and – given the current understanding of facts on the ground in Yemen and Somalia – the best understanding of who is being targeted to regard those uses of force as part of the on-going non-international armed conflict.