The Volokh Conspiracy

A local controversy here in Colorado involves an auto dealer who used the billboard on his property to ask the question ““PRESIDENT or JIHAD?” The rest of the billboard attempts (not very successfully in my view) to connect this question to the issue of Obama’s birth certificate. Last night I was briefly interviewed about the billboard by Channel 7 News, the local affiliate of ABC. My view is that there is not a scintilla of evidence to suggest that our President is a jihadi. Accordingly, I exercised my First Amendment rights to criticize someone else’s foolish use of his own First Amendment rights. As is the norm, not every portion of a taped interview gets used on the air. One portion that didn’t make the cut was my equating the allegation of “jihad?” with the earlier claims of some mean-spirited extremists that President Bush was as evil as Hitler.

Last week, I was interviewed by Radio Free Europe’s Russian-language station about the 30th anniversary of the Iranian seizure of American diplomatic hostages in Tehran. The transcript, in Russian, is here. For the fraction of VC readers who do not read Russian (a fraction that is smaller than almost any other U.S. law/policy weblog), here’s a summary of my key points: The hostage crisis initially helped President Carter fend off a primary challenge from Sen. Ted Kennedy, as Carter stayed in the White House attending to the issue. However, as the kidnapping wore on, Carter’s weakness became increasingly evident to the American people; it was observed that Soviet government diplomat do not get seized, because everyone realized that the Soviets would respond forcefully. Accordingly, one result of the hostage crisis was the election of Ronald Reagan. (Who of course later made his own terrible mistakes in thinking that he could establish a working relationship with the Iranian tyrants.) Today, Iran is still ruled by tyrants who hate the West in general, and the U.S. in particular, and the West has new leaders who, like many of their predecessors, cling to the vain hope that the Iranian regime can be pacified by concessions. The world’s largest exporter of terrorism, the Iranian regime aims to  dominate the Near East and the Muslim world. With nuclear weapons, the the Iranian regime threatens the whole civilized world. Everything would be different if the Khomeni revolution had been stopped at the very beginning. The longer that regime change in Iranian is delayed, the worse for everyone.

Unfortunately, I don’t have time to say anything substantive about this now, but AP reports on the conviction of twenty-three CIA agents in absentia in Italy in a trial over an extraordinary rendition.  The AP story is unusually detailed for a wire story and bears reading.  I am in the middle of something and can’t stop to comment  on the substance.

However, I’ll make again the side observation that I have made before that this is the next step in what I have described here and on the OJ blog as “gaming Spain.”  It has been remarked by many observers how the effect of foreign prosecutions or the threat of foreign prosecutions is a backdoor way of punishing administration lawyers and others, such as these CIA agents, for various things that can’t be or are not pursued in American courts.

Less remarked, however, but I predict is the wave of the future, is how these kinds of backdoor prosecutions will, over time, turn out to track Democratic and Republican administrations differently.  Part of this is driven, in my view, simply by a a shared ideology among actors within the Obama administration with the ability to set the agenda on these matters — given the relatively little interest that Republican members of Congress show.  Your mileage may vary on how to interpret the administration’s polite regret and disappointment over the Italian verdicts, for example, and I suppose it is possible that the Bush administration would have shown no greater willingness to use real muscle to make its displeasure felt.

My personal view is that the administration, or at least key players on these matters, however, have concluded that it’s perfectly okay given that the final result is not actual jail for the US persons (I’m lumping together the Italian prosecutions, threatened Spanish actions, and other places to sum up policy) but instead simply an inability to travel abroad.  On reason I believe this is what key players in the Obama administration think is simply because I’ve heard it so often over the last three or four years.  I have heard it said in many conversations among international law academics, advocates, NGO activists, and so on, that this is a good way both to appropriately punish, for example, John Yoo — and to deter future government lawyers or actors, many of whom do contemplate active professional and personal lives outside of government that might involve travel abroad.  I don’t doubt that this is a reasonably widely held view, for example, among professional and academic readers of the international law blog Opinio Juris, where I also blog.  Heck, it wouldn’t surprise me if it had been urged as its own policy in some paper somewhere on SSRN, although I haven’t actually seen anything like this.  It’s not an accusation of bad faith; it’s just a fairly pedestrian trope in this particular community.

But whether the psychological motivations are as I believe they are or not — whether I’m right or wrong about what the increasingly ‘visible and noisy college of international law’ thinks is a pretty appealing backdoor way of punishing Yoo, et al. — the biggest reason I think this is the wave of the future is the strategic logic of the situation.  Filling out what I said above, it seems to me likely that these prosecutions, threatened or actual, will target Republicans over time and not Democrats, even when the behavior is quite obviously the same.  Targeted killing using Predators seems to me very, very likely — just as soon as there is a Republican in the White House.  Meanwhile, nothing actually happens, but the legal and soft-law groundwork is put in place so that upon a change of administration, somehow things change, at least as far as the legal characterizations and then later how prosecutors like Spain’s Baltasar Garzon see them.

Why one party and not the other, if based on anything other than claimed psychological affinities?  If the advocates, NGOs, activists, European prosecutors, UN folks, etc., were to go after both Democrats and Republicans — for, after all, the same behavior — then Democrats targeted from the Obama administration would hang together with Republicans of President Ummm.  A threat against American behavior as such, behavior undertaken by both administrations, would force the Americans to hang together as Americans.  So if you are the international law community, and even if you would in principle like to go equally after everyone engaging in the same behavior, you get 0%.  That’s so whether or not you have the same appetite for going after people in any administration.

If, on the other hand, you go only after Republicans, you can reasonably count on Democrats, if they know they are not going to be targeted, to hang with you in going after Republicans.  So you don’t get 100%, but you don’t automatically get zero, either, and you might get 50%.  That seems to me a reasonably rational strategic argument, at least from the foreign standpoint.  (There’s a further question about why Democrats would go along with this ‘international law community’ rather than siding with their fellow Americans that does involve extra-strategic preferences.)

I also predict that the behaviors at issue in targeted killing with Predators will suddenly turn out to have mysterious, hithertofor unidentified legal characteristics that make it one kind of thing when it is the Obama administration, and something else — and suddenly legally liable — when it is the next Republican administration.  And that some of those arguing that it was one thing under Obama and another under the next administration will be the current administration’s transnationalist lawyers, out of office and back in the academy or think tanks or NGOs.

I happen to think it is a good thing, however, if Americans hang together as Americans when it comes to successive presidential administrations — national politics and the water’s edge, in that apparently old-fashioned and out-of-fashion and un-cosmopolitan formulation.  So unsurprisingly I think it would be a good thing if Republicans and, even better, some Democrats would take account of this emerging path of international soft-law, and perhaps start taking steps to stop it.  I’m not holding my breath.

(After a couple of annoying/uncivil emails on this, I decided to delete and close the thread as well.  Apologies to any non-abusive commenters whose comments I deleted.)

My Opinio Juris colleague Julian Ku comments on the dismissal of the Maher Arar rendition case by the Second Circuit in an en banc decision, 7–4.  (Arar is the case of the Canadian who was detained by the US and subjected to extraordinary rendition to Syria.)  Like Julian, and perhaps more strongly, I think the Second Circuit made the right call in deciding not to allow a so-called “Bivens action” for alleged constitutional violations by US officials to go forward, for reasons rooted in the conduct of foreign policy.  Read Julian’s brief comment at the link, but he has an earlier analysis in the links to earlier OJ posts.  (If you want to comment, please do so at OJ.)  (Update:  Another OJ colleague, Kevin Jon Heller, citing to Scott Horton, dissents from Julian and me, citing Judge Calabresi’s dissent.)

Reuter’s reports on a speech given by Philip Alston at the UN, criticizing the US for its drone attacks or, at a minimum, for not being forthcoming on its drone attacks.  Professor Alston (a friend of mine and well known to many VC professor-readers as an NYU law professor) is the UN special rapporteur on extrajudicial execution.  (I would be curious to see video of the speech if anyone knew of a link; I found the Reuter’s description a little breathless.)

The United States must demonstrate that it is not randomly killing people in violation of international law through its use of unmanned drones on the Afghan border, a U.N. rights investigator said on Tuesday.

Philip Alston, a U.N. special rapporteur on extrajudicial, summary or arbitrary executions, also said the U.S. refusal to respond to U.N. concerns that the use of pilotless drones might result in illegal executions was an “untenable” position.

Alston, who is appointed by the U.N. Human Rights Council, said his concern over drones, or predators, had grown in the past few months as the U.S. military prominently used the weapons in the rugged border area between Afghanistan and Pakistan where fighting against insurgents has been heavy.

“What we need is for the United States to be more up front and say, ‘OK we’re prepared to discuss some aspects of this program,’” the Australian law professor told reporters.

“Otherwise you have the really problematic bottom line, which is that the Central Intelligence Agency is running a program that is killing significant numbers of people and there is absolutely no accountability in terms of the relevant international laws,” he said.

As regular readers know, I think the Predator targeted killing program is perfectly legal; on the other hand, the unwillingness of either the Bush or, now, Obama administrations to state plainly the legal basis on which they believe it operates is a serious legal policy mistake.  What the administration needs to do is instruct Legal Adviser Harold Koh to give a speech that re-affirms the views taken by the US in the 1989 speech by then-Legal Adviser Abraham Sofaer.

It is a bad idea for the USG to do what it appears inclined to do (not just the Obama administration, but the Bush and Clinton administrations, too) and assert that the Predators are targeting combatants in an armed conflict, end of discussion.  From conversations I’ve had with various officials and ex-officials, and what little one can glean from the (foolishly, very foolishly) practically non-existent US opinio juris, the view seems to have been, and continues to be, that this is the narrowest and therefore most careful grounds on which to assert the legality of the actions.

Alas, no.  For the critics of targeted killing, for one to assert the right to target combatants, there must be a cognizable armed conflict under IHL — and it is not clear to many of the critics that Pakistan, rather than Afghanistan, counts.  And for the critics, Yemen or Somalia will definitely not count.  USG officials and ex-officials also seem to assume that because Congress authorized the AUMF, that act of jus ad bellum is sufficient to create an armed conflict with a non-state actor as a matter of jus in bello; critics will dispute that the former creates the latter and that it can run geographically wherever a “combatant” AQ operative happens to be, rather than a zone of substantial fighting.

Assuming arguendo that is so, then, according to the critics, you flunk having an armed conflict.  If you flunk having an armed conflict, then status as a combatant is irrelevant.  Any killing would then have to satisfy international human rights laws — also assuming, arguendo, for example, that the ICCPR were regarded as applying extraterritorially, as the critics do.  In the US view up to now, it does not — but it is very far from clear that the Obama administration will stick by that, though one hopes it has figured out the consequences for its Predator program if it does not.

The only real way for the administration to maintain what, in my view is a legally defensible, strategically vital, and indeed humanitarian measure — the alternative, note, is not “no fighting,” it is the Pakistani army fighting via artillery barrage, not a Hellfire missile — is to re-affirm the Sofaer position, which so far as I know the US has never formally dropped in any case, and assert self-defense irrespective of a state of IHL armed conflict.

According to the Reuter’s account, the US responded by telling the

Human Rights Council in June that it has an extensive legal framework to respond to unlawful killings. It also objected to Alston’s criticism, saying the U.N. investigator did not have the mandate to cover military and intelligence.

Alston wants to know the legal basis on which the United States is operating the drones, precautions it is taking to ensure these weapons are used strictly for purposes consistent with international humanitarian law, and what mechanisms are in place to review the use of the weapons.

“The response of the United States is simply untenable,” Alston said.

“And that (U.S. response) is that the Human Rights Council, and the General Assembly by definition, have no role in relation to killings that take place in relation to an armed conflict,” he said. “That would remove a great majority of issues that come before (the United Nations) right now.”

I don’t agree that the US position is untenable, nor do I think that the HRC or General Assembly has a role to play in killings “in relation to an armed conflict.”  Yes, the General Assembly or, for that matter, the Human Rights Council can opine on whatever they like — as they already do — and I understand if that is what was meant.

But the other possible meaning here is that the US has some legal obligation either to engage with that process or provide it with information or cooperate with it in some way with respect to killing in relation to an armed conflict.  In that regard, I see no obligation on the part of the US to take part, and think the Obama administration quite within its plain legal prerogatives.  There is, rather, an entire body of treaties of the laws of war and its conduct, none of which involves the General Assembly or the Human Rights Council, that regulate killing in relation to an armed conflict.

But note, as well, that the US Department of State’s response that the special rapporteur’s mandate does not extend to these matters is, so far as one can tell from public information, identical to the position taken by the Bush administration.

In a forthcoming essay, The Fourth Amendment Goes to War, Professor Robert J. Delahunty defends the October 2001 OLC opinion he and John Yoo wrote while at the Office of Legal Counsel on how the Fourth Amendment applies in the war on terror. The opinion concluded that the Fourth Amendment does not apply “to the use of the military domestically against foreign terrorists,” and that if it did apply, the courts generally would hold the use of the military domestically against foreign terrorists to be constitutionally reasonable without a warrant because the government interest in protecting the nation would outweigh the relevant privacy interests. 

Delahunty argues that the opinion is correct, and he concludes by inviting responses:

Despite the shrill criticisms of the opinion, I have yet to see a convincing refutation of it. Let that be a challenge to those of you who think otherwise. I am open to persuasion, as you should be. Let Law and Reason decide. 

I think the OLC opinion’s Fourth Amendment analysis is quite weak, so I thought I would take up Delahunty’s offer and explain why I think so. I will first summarize his arguments, and then offer my own response.

I. Professor Delahunty’s Arguments 

Delahunty’s basic claim is that the Fourth Amendment applies differently in times of war. There are two basic paradigms for interpreting the Bill of Rights, Delahunty contends: the law enforcement paradigm and the war paradigm. The Bill of Rights as a whole applies differently at war, and after 9/11, we were at war. The OLC opinion properly “read the Fourth Amendment in that light.” 

Delahunty bolsters this case by invoking the “special needs” doctrine of Fourth Amendment law that allows warrantless searches and seizures for legitimate government purposes outside of law enforcement if the searches and seizures are reasonable. For example, in United States v. Green, a 2002 case, the Fifth Circuit upheld a roadblock inside a military base in part on the ground that the purpose of the roadblock was “to protect the military post,” not to detect criminal activity. According to Delahunty, this shows how the search for terrorist suspects triggers a very different set of Fourth Amendment rules.

Delahunty finds particular support in United States v. Verdugo Urquidez, a case held that the Fourth Amendment did not apply to the search of a home in Mexico belonging to a Mexican suspect with no voluntary associations with the United States. A part of the Verdugo opinion reasoned that applying the Fourth Amendment to military activities outside the United States would substantially interfere with the ability of the political branches to respond to foreign siruations properly. Delahunty reasons that the same reasoning should apply to military searches and seizures inside the United States: The governmental interest isn’t any less just because a threat occurs inside the United States. 

Delahunty asks what would happen if the government received a tip that a terrorist group had concealed a weapon of mass destruction in an apartment building. Securing the whole building and detaining its residents to look for the WMD would violate the Fourth Amendment under Ybarra v. Illinois, but the alternative would risk hundreds of thousands of lives. Delahunty also points to Murray v. United Kingdom, an opinion by the European Court of Human Rights that interpreted Article 8 of the European Convention of Human Rights. Murray allow the detention of an entire family in the course of identifying a terrorist suspect, and noted that responding to a terrorist threat is different from responding to a traditional criminal threat. 

II. A Reply to Professor Delahunty

Before responding on the merits, let me point out that the OLC opinion is highly puzzling because it has no facts. Fourth Amendment law is notoriously fact specific, but the OLC opinion speaks only in grand generalities. In particular, the opinion concludes that the Fourth Amendment does not apply “to the use of the military domestically against foreign terrorists.” But what does that mean? What is the use of the military “against” terrorists? Is a use “against” terrorists if it has the general purpose of undermining terrorism, or is a use against terrorist only if it is actually a search or seizure of an actual terrorist and his property? And what is a “use” of the military? Is surveillance a “use”? Is traditional law enforcement a “use”? It’s hard to know what the OLC opinion is actually trying to say without answers to these questions.

On the merits, the most obvious problem is that the alleged choice between two “paradigms” — the law enforcement paradigm and the war paradaigm — has no support in any Fourth Amendment precedent or text. Indeed, Delahnuty does not rely on any actual Fourth Amendment cases or language to make the case for this fundamental choice. Rather, he looks to constitutional cases and text elsewhere in the Constitution, and then offers the theory that the Bill of Rights as a whole must face this choice. For example, Delahunty relies on the text of the Third Amendment, which distinguishes rights to quarter troops “in times of peace” versus “in times of war.” If the text of one section of the Bill of Rights has a particular feature, Delahunty suggests, it presumably carries over to other sections.

This is an interesting normative theory, but it is not found in existing Fourth Amendment law. There is no time of peace/time of war distinction in Fourth Amendment law. Indeed, the most significant expansions of the scope of the Fourth Amendment occurred in a time of war — the Vietnam war, which was raging at the time of the Warren Court criminal procedure revolution. And this revolution carried over to the national security setting in United States v. United States District Court, the leading case on applying the Fourth Amendment in the national security setting (a case that Delahunty somewhat curiously does not cite). In that case, the Justice Department argued that it did not need a warrant to conduct wiretapping for national security purposes when countering a domestic threat. The Supreme Court disagreed:

These contentions in behalf of a complete exemption from the warrant requirement, when urged on behalf of the President and the national security in its domestic implications, merit the most careful consideration. We certainly do not reject them lightly, especially at a time of worldwide ferment and when civil disorders in this country are more prevalent than in the less turbulent periods of our history. There is, no doubt, pragmatic force to the Government’s position.

But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President’s domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case, we hold that this requires an appropriate prior warrant procedure.

This is all quite far from the imagined choice between a “war paradigm” and a “law enforcement paradigm.” Perhaps there should be such a distinction. But the OLC opinion is supposed to be a statement of existing law, not a creative work of normative constitutional theory, and I think the opinion is wrong in seeing a “war paradigm” in existing law.

I was also not persuaded by Delahunty’s discussion of United States v. Verdugo Urquidez. The quoted passage from that case concerned military activities outside the United States. The Court explained that “the result of accepting [the defendant’s] claim would have significant and deleterious consequences for the United States in conducting activities beyond its boundaries” (emphasis added). Indeed, almost every sentence in the paragraph mentions the limitation to extraterritorial searches and seizures. Given that, it is quite a major leap to extend the principle to searches and seizures inside the United States. And the very next sentence suggests one of several possible reasons for the limitation: “The United States frequently employs armed forces outside this country — over 200 times in our history — for the protection of American citizens or national security.” In contrast, such uses inside the country are rare. Of course, that’s not to say that this is the only or even the most persuasive reason to distinguish military searches inside the U.S. and military searches abroad, or that the two cases must be treated differently. My point is only that it’s a major step to say that a hypothetical discussed in the case of the latter justifies the same rule in the case of the former. 

The OLC opinion is also odd in how it overlooks the exigent circumstances exception. The memo suggests that the Fourth Amendment must not apply to military operations inside the U.S. (or at least apply very differently) because the contrary would lead to outrageous results — such as not letting the government secure an entire building if an WMD is believed to be hidden inside it. But surely this would fall easily under the exigent circumstances exception to the warrant requirement, which allows reasonable searches and seizures without a warrant in emergency situations. It’s hard to think of a greater emergency than a nuke killing a few hundred thousand people, and the existing exigent circumstances doctrine would easily allow this regardless of whether the military or the police were doing it. 

I was even more puzzled by the discussion of how the European Court of Human Rights interpreted Article 8 of the European Convention of Human Rights. Maybe I am just being provincial, but I can’t see how that is remotely relevant to the Fourth Amendment in the United States Constitution.

III. Points of Agreement 

I should hasten to point out that I don’t think the Fourth Amendment requires warrants on the battlefield. And this brings me to where I think Delahunty is clearly right: the Fourth Amendment standard for military conduct inside the United States surely is quite different than it would in the traditional law enforcement setting. Between the special needs doctrine, the exigent circumstances exception, and Verdugo-Urquidez, you would have a very different set of rules. 

But it’s hard to say much more than that without being presented with some facts, hypothetical or real: As I said earlier, the Fourth Amendment is so fact-specific that grand generalities don’t get you very far. So the opinion is clearly right in its most modest claims, that Fourth Amendment doctrine is sensitive to national security concerns and that the warrant requirement relaxes in light of national security needs. But I think much of the opinion is weak, and its broader claims that the Fourth Amendment does not apply at all to the use of the military in the war on terror is wrong.