US ♥ international law

Well, sort of.
Consider this excerpt from the brief just filed by the United States in a Guantánamo detainee's habeas corpus case:

Petitioner cites the panel majority’s statement that the 'premise that the war powers granted by the [Authorization for Use of Military Force (2001)] and other statutes are limited by the international laws of war * * * is mistaken.' The Government agrees that this broad statement does not properly reflect the state of the law. The Government interprets the detention authority permitted under the AUMF, as informed by the laws of war. That interpretation is consistent with the Supreme Court’s decision in Hamdi v. Rumsfeld (2006), and with longstanding Supreme Court precedent that statutes should be construed as consistent with applicable international law.

Pp. 1-2 (citations switched to hyperlinks).
So said the United States' response to the petition for rehearing of the ruling of the U.S. Court of Appeals for the District of Columbia Circuit (courthouse above right) in Al Bihani v. Obama (2010). (Prior IntLawGrrls post) Indeed, in the body of its argument (pp. 6-9), the government repeated and expanded upon its nod to international law. In so doing, it cited case law familiar to those of us who labor in this field. For example:
► Murray v. Schooner Charming Betsy (1804), a precedent from the Court of Chief Justice John Marshall, was cited for the proposition that "an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains."
► United States v. Yunis (D.C. Cir. 1991), a judgment (by a panel included then-Judge Ruth Bader Ginsburg, along with then-Chief Judge/now IntLawGrrls guest/alumna Patricia M. Wald and the opinion's author, Abner Mikva) arising out of a 1985 cross-border, terrorism-linked hijacking. Yunis was cited for the proposition that "courts will not blind themselves to potential violations of international law where legislative intent is ambiguous."
Notably, the U.S. position in this brief stands at odds with that taken in the Military Commissions Act of 2006; in section 5(a), Congress forbade anyone to "invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action ... as a source of rights in any court of the United States or its States or territories."
At both junctures of its Al-Bihani brief, however, United States argued that international law offers no reason to grant the detainee's petition for rehearing. Here's page 2:

[N]one of this changes the outcome ... The panel majority specifically addressed and properly rejected petitioner’s argument under international law. That unanimous ruling is correct and does not warrant rehearing or rehearing en banc.

What the government giveth ....

D.C. Circuit disappoints

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

After the Supreme Court ruled in 2008 in Boumediene v. Bush that the detainees at the Guantánamo Bay detention facility are entitled to habeas corpus to challenge the legality of their detention, the U.S. District Court for the District of Columbia started to take action on the hundreds of petitions filed. In these habeas proceedings, the court has faced the threshold legal question of the scope of the government’s authority to detain pursuant to the 2001 Authorization for Use of Military Force.
I thought it would be interesting to see how the D.C. District Court delimited the permissible bounds of the government’s detention authority, specifically focusing on whether the court’s decisions are consistent with the internment standards under the law of war, international humanitarian law. My conclusions were recently published as Guantánamo Habeas Review: Are the D.C. District Court’s Decisions Consistent with IHL Internment Standards?, 42 Case W. Res. J. Int’l L. 197 (2009).
When my article was submitted at the end of August 2009, the D.C. District Court had ruled on 35 petitions and granted 29, under both the Bush and Obama Administrations. The D.C. District Court has now ruled on 41 petitions, granting 32.
Significantly, on Tuesday, the U.S. Court of Appeals for the District of Columbia issued its first opinion, Al Bihani v. Obama, reviewing a habeas petition on the merits.
In affirming a decision below that had denied relief, the panel of the D.C. Circuit (courthouse above left), in an opinion written by Judge Janice Rogers Brown (right), embraced a detention authority more expansive not only than international humanitarian law permits but also than the D.C. District Court has generally asserted.
Both the Bush and Obama Administrations and the D.C. District Court have analogized to international humanitarian law of international armed conflicts in determining the internment standard to be applied to those detained in relation to what the Supreme Court in Hamdan v. Rumsfeld (2006), indicated to be a “conflict not of an international character” between the United States and al Qaeda in Afghanistan.
In their analogous application of international humanitarian law, both the Administrations and the court have analogized solely to the Third Geneva Convention, applicable to prisoners of war. No mention is made of the Fourth Geneva Convention, protecting civilians.
In my article, I discuss whether analogous application of international humanitarian law internment standards applicable to international armed conflict is appropriate in non-international armed conflict and, if so, in which form. I demonstrate that while it may be acceptable to apply the international humanitarian law standards of international armed conflict by analogy to non-international armed conflict, these standards do not and should not extend to any of those individuals at Guantánamo, who are interned in relation counter-terrorism operations not passing over the threshold into armed conflict.
My analysis indicates that the D.C. District Court’s application of the Bush Administration’s definition of “enemy combatant” and the refined standard provided by the Obama Administration are in some ways narrower and in other ways potentially broader than the international humanitarian law internment standards. Nevertheless, that court has done an admirable job in handling certain complicated and unsettled issues under international humanitarian law, such as the meaning of “direct participation in hostilities” and the analogous application of “combatancy” to non-international armed conflicts. While some of the factors that the judges of the D.C. District Court determined established “combatancy” raise concern of being beyond the scope of factors acceptable under international humanitarian law, the D.C. District Court appears to have thus far reined in the Administration’s standards in a manner more consistent with the definition of “combatant” as understood under international humanitarian law.
The recent D.C. Circuit’s decision, however, determined these international humanitarian law matters not to be of concern, as the court completely rejected the premise that international humanitarian law constrains the authority conveyed by the AUMF to detain. The court determined that international humanitarian law is “not a source of authority for U.S. courts.” The court did so despite the ruling of the Supreme Court in Hamdi v. Rumsfeld (2004) and despite the government view that international humanitarian law has a role in the interpretation of the AUMF’s grant of authority, as pointed out in Senior Judge Stephen F. Williams' concurrence.

The Circuit Court’s decision provides much for discussion.

Suffice it to say for the purpose of this posting that those who had hoped, either that the exclusion of international humanitarian law from the determination of the scope of detention authority or that D.C. Circuit’s clarification of the District Court’s differing interpretations of the internment standard would narrow the scope of government’s authority to detain, find themselves concerned and disappointed.

SCOTUK

American lawyers are fond of calling the highest court in their land SCOTUS -- hence the name of the blog dedicated to covering the work of the Supreme Court of the United States.
Perhaps soon, then, we'll hear our colleagues across the pond utter the acronym SCOTUK.
That's the thought that jumped to mind while watching, on C-SPAN, last week's 1st-ever hearing of the Supreme Court of the United Kingdom.
The court replaces the old Law Lords with a new and independent judicial institution that sits in a new and television-friendly chamber. (Video here)
It's a 12-Justice court now staffed by 1 woman -- Lady Brenda Marjorie Hale (left), aka The Right Honorable the Baroness Hale of Richmond-- and 10 men. One seat is vacant.
These Justices will serve as the final domestic forum for litigants in England, Scotland, Wales, and Northern Ireland, hearing cases that may last for days, quite different from the 1-hour arguments typical in the United States.
In a twist, the lawyers wear robes, and wigs, but the Justices prefer plainclothes.
The court's 1st argument entailed a fascinating interplay of internal and international law.
Captioned Her Majesty's Treasury (Respondents) v A and others and another (FC) (Appellant), the case asks whether Britain's executive acted unlawfully when it froze appellants' assets pursuant to a 2006 executive order issued consequent to U.N. Security Council Resolution 1373 (Sept. 28, 2001), a post-9/11 measure entitled "Threats to international peace and security caused by terrorist acts" that imposed on U.N. member states duties intended to combat the financing of terrorism. No express authorization by Parliament preceded Britain's asset seizure. Therefore, the new high court must confront what counsel deemed an issue of 1st impression:
► Did Parliament give sufficient authorization when it enacted the rather brief United Nations Act 1946, which permits orders "necessary or expedient for enabling" Security Council "measures to be effectively applied," or, to the contrary, did the asset seizure overstep the executive's power under Britain's constitutional structure?
Just as the court's name bears echo with its U.S. counterpart, the issue recalls one recently before the latter court; that is, whether Congress' Authorization to Use Military Force justifies indefinite detention post-9/11. The similarity vel non of the answers remains to be seen.

Halberstam on the Korean War

I have been reading David Halberstam's The Coldest Winter: America and the Korean War (Hyperion, 2007), a finalist for the 2008 Pulitzer Prize in history. As Max Frankel wrote in his review in the New York Times Sunday Book Review in September 2007, Halberstam’s book
evokes the nobility and crazy heroism of outnumbered American grunts in a dozen of the war’s critical engagements, cinematic scenes that alternate with crisp essays about the mindless way the war began, the reckless way it was managed and the fruitless way it ended.
One cannot read Halberstam’s book without being reminded, on virtually every page, of the grave situations that face soldiers and civilians in Iraq right now (or of the great loss we suffered when Halberstam died in a tragic car accident a few days after finishing this book).
But to me, the most compelling part of The Coldest Winter is the way in which it reveals what Halberstam calls “the nobility of ordinary people” (660) in the crucible of war. The Coldest Winter’s gripping narratives of battle scenes and soldiers’ struggles are classics of military history. His re-telling of the battle at Chipyongni in February 1951 (514-86) deftly assesses both the origins (strategic necessity) and extraordinary costs (the lethal stalemate that soon set in) of a major victory for U.N. forces in the central corridor of Korea. Halberstam easily moves from generals (the American Matt Ridgway and his Chinese counterpart, marshal Peng Duhai; the charismatic Frenchman Ralph Monchar) to captains (Stanley Tyrrell, leader of a successful rescue that led the survivors to make a banner proclaiming, “when in peril, send for Tyrrell”, 530) to sergeants (Ed Hendricks, who recalled stacking frozen bodies into trucks like “a giant jigsaw puzzle” after the deadly winter battle, 585) as the battle plays out.
Comparable stories of the horror and heroism of the war in Iraq are already in popular circulation; consider the new HBO mini-series (premiering this Sunday, July 13) based on journalist Evan Wright's Generation Kill (Putnam, 2004).
Halberstam’s doggedness in pursuing sources is an inspiration (especially for me, since I see the inside of an archive, or sit across from an interviewee, all too rarely). The brilliant section on Chipyongni relies heavily on an interview with Paul McGee, one of many veterans Halberstam tracked down. In his author’s note, Halberstam reports that he almost called off his visit to McGee, who was an unsung Army lieutenant in the battle, because of fatigue, bad weather, and inconvenience. But he decided to keep the appointment and was rewarded with perhaps the most remarkable interview that appears in the book (“it was as if he had been waiting for me to come by for fifty-five years, and he remembered everything as if it was yesterday”, 661). Halberstam even used McGee’s thoughts on the duty of a soldier to close out his epilogue.
As Laurel Thatcher Ulrich once said in a Penn lecture to aspiring historians, serendipity doesn’t strike in the shower. (But note you no longer have to go to the Maine State Library, as Ulrich did, to find Martha Ballard ’s diary; it’s here.)

(Cross-posted at Legal History Blog)

Somalia airstrikes and the bounds of law

(Over at Slate's Convictions blog there's been a discussion in recent days about the propriety of U.S. airstrikes in Somalia. Phillip Carter started the conversation. Deborah Pearlstein responded and invited me to weigh in; my contribution is cross-posted here.)

Deborah, you're on to something here when you ask whether the words "necessary" and "appropriate" -- which qualify "use of force" in Congress' Authorization to Use Military Force of September 18, 2001 -- ought not to be examined more fully.

In Hamdan v. Rumsfeld (2006), a majority of the Supreme Court reaffirmed that in making reference to terms that are part and parcel of the international laws respecting the conduct of war -- to cite the Latin phrase still current, jus in bello -- Congress intended courts to look to that body of law in interpreting the statutory terms.

In considering whether the AUMF allows strikes against Somalia (map at left), the pertinent international laws concern not the conduct of war but the act of going to war; that is, jus ad bellum. Since the adoption of the U.N. Charter in 1945, that law renders a nation-state's use of force illegal, as a matter of international law, unless it is undertaken with the approval of the U.N. Security Council. The Charter permits only one exception, set forth in Article 51:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Presumably, the United States would argue that the Somalia strikes are permissible as exercises of "the inherent right of individual or collective self-defence." But that claim would not end the story. Do the words that follow -- "if an armed attack occurs" -- mean that the attack already must have occurred, and if so, do the attacks of September 11, 2001, attributed to an al Qaeda leader then in Afghanistan, not Somalia, so satisfy this requirement that the United States may go after a different leader in a different country, nearly 7 years after that other attack?

Let's assume, in the alternative, that the United States may attack before it is attacked, in order to defend itself before it is so disabled that it cannot engage in self-defense. This seems reasonable; after all, the law generally allows a person who has a gun pointed at her to shoot 1st, and not to wait for the assailant to shoot her before she may act to defend herself. Indeed, this reasoning is enshrined in international law as "anticipatory self-defense," a concept established more than 170 years ago during the Caroline incident between the United States and Britain.

Accepting "anticipatory self-defense" as law does not end the inquiry, however. The exchange of letters that ended the Caroline dispute indicate conditions upon this right -- conditions of "necessity" and "proportionality" that may be found in other doctrines relating to the use of force, such as the old doctrine of reprisal, as our colleague, Notre Dame Law Professor Mary Ellen O'Connell, explains here. Within those 2 terms may be found a rule that use of force in self-defense must be genuinely necessary, that the threat must be imminent, that there must be no opportunity for deliberation or negotiation, and further that the use of force must be proportionate to the threat, so that any permissible strike goes after only the person(s) or camp(s) that are a menace, and avoids as much as possible any damage to any innocent person or any uninvolved item of property.

The U.S. Congress ought to be presumed to understand these well-settled principles -- principles that derive from a dispute involving the United States itself. Thus its decision explicitly to require in the AUMF use of force be both "necessary" and "appropriate" -- words nearly identical to the international law doctrine's "necessity" and "proportionate" -- ought to be understood as limiting post-9/11 use of force to that which meets these requirements.

What's been published respecting the United States' sporadic strikes in Somalia raises questions whether the uses of force there exceed the narrow requirements of jus ad bellum and, therefore, of the AUMF.