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.

News from Guantánamo

A roundup of what's up with cases arising out of Gitmo:
Gates v Bismullah
In an attempt to limit the information it must provide the D.C. Circuit Court when the court reviews an enemy combatant determination of a Guantanamo detainee under The Detainee Treatment Act, the government filed a petition for certiorari with the U.S. Supreme Court appealing the Circuit Court’s decision to deny rehearing en banc of its initial decision that the court must review all of the evidence regarding a detainee’s enemy combatant status and not just the evidence presented to the Combatant Status Review Tribunal as proposed by the government. After the denial, the government requested a stay of the court’s decision and filed the cert. petition, requesting SCOTUS to either accept the case with expedited review or defer action until the Court ruled on the Al Odah/Boumediene case, which has been pending since the Court heard oral arguments on December 5, 2007.

The Military Commissions
In the case of USA v Omar Khadr, the defense recently had several pre-trial motions denied by military judge Peter Brownback. Most significant was a motion to dismiss the charges and specifications on the grounds that the Military Commissions Act of 2006 is a Bill of Attainder -- prohibited by Art. I, § 9(3) of the U.S. Constitution -- for the reason that the Act essentially legislates punishment without trial. Judge Brownback disagreed, notwithstanding the fact the military commissions trials have been called a sham, rigged and unjust by defense JAG attorneys, and more recently characterized as ‘politicized’ by former military commissions prosecutor Colonel Morris "Moe" Davis. Davis, who quit the prosecutor's post a few months ago, has just announced that he will testify on behalf of a Gitmo detainee. Explaining his departure, Colonel Davis stated, “I concluded that full, fair and open trials were not possible under the current system.” And as posted, the Colonel reminded a couple weeks ago that Brigadier General Thomas Hartmann, legal adviser for the military commissions, refuses to rule out using evidence obtained by waterboarding.
In light of these circumstances, even the most hardened tough-on-crime conservative should be concerned about the recent swearing of charges against the ‘high-value six’ detainees, which includes Khalid Sheik Mohammed and Mohamed al Kahtani. The six are being charged with numerous crimes the government alleges are war crimes based in part on conduct that occurred well before 9/11. The government seeks the death penalty. Apparently, the government has already forgotten the decision of the Supreme Court in Hamdan, which holds that a precondition for a military tribunal’s exercise of jurisdiction is that ‘it is limited to trying offenses committed within the convening commanders field of command, within the theater of war and that the offense charged must have been committed during, not before or after the war.’

Now, I have no sympathy for terrorists and I am not opposed to military tribunals when imbued with due process. But how can anything good come of trying an individual in a ‘politicized’ ‘sham trial,’ for faux war crimes, on the basis of evidence procured by torture, in front of a tribunal that is all but ordered to obtain convictions, and then executing him?

Oh, and did I mention that such trials would be a gross violation of international law?

(photo from Camp Delta, Guantánamo Bay, courtesy of Center for Constitutional Rights)

On February 4, ...

... 2008 (today), the World Health Organization marks World Cancer Day, designed to raise awareness about the malady that, absent intervention, is expected to kill 84 million persons this decade. The focus this year is on children; specifically, on the risk to children when adults around them smoke. WHO states:

Around 700 million children - almost half of the world's children - breathe air polluted by tobacco smoke, particularly at home. ... [A] simple message to parents: 'Second-hand smoke is a health hazard for you and your family. There is no safe level of exposure to second-hand smoke. Give your child a smoke-free childhood.'

... 1946, the U.S. Supreme Court affirmed the conviction of Japanese General Tomoyuki Yamashita for war crimes committed by his troops in the battle for the Philippines, won by the United States shortly before the end of World War II. The Court did so over the vociferous dissents of Justices Wiley B. Rutledge and Frank Murphy. Yamashita -- convicted on a command responsibility theory, as IntLawGrrl Beth Van Schaack has written here -- was hanged soon after. The case drew new interest 40 years later. In Hamdan v. Rumsfeld (2006), the Court gave credit to the dissents; a majority agreed that "[t]he force of" Yamashita 's approval of military commission procedures "has been seriously undermined by post-World War II developments." Author of the opinion was Justice John Paul Stevens who, as I've written here, had begun a yearlong clerkship for Rutledge 18 months after the Yamashita decision.

Rehabilitation’s just a (dance) step away

It has now become yet another terrifying experiment in seeing just how far a state can go in treating prisoners as subhuman. In her latest Boston Review essay, our colleague Colin Dayan describes how the Supreme Court of one of the world’s oldest and largest democracies, in a case called Beard v. Banks (2006), upheld prison regulations providing that certain prisoners could be

isolated 23 hours a day in their cells, denied radio and television broadcasts, and prevented from earning a GED (General Education Diploma) or taking special education classes. They ate alone and could not make telephone calls except in emergencies or when related to legal representation. Unable to speak or socialize directly with other inmates, they stared at the unpainted, concrete, and windowless walls onto which nothing could be posted. Except for the occasional touch of an officer’s hand as they were handcuffed and chained to leave their cells, they had no contact with other human beings. Although prisoners could “graduate” out of [this special unit], the duration of their stay—beyond the minimum requirement of ninety days—was at the discretion of prison administrators, and most did not graduate. In this already severely restricted environment, the new [] policy categorically prohibited access to magazines, newspapers, or books, except paperbacks from the prison library—called “leisure books” in “[the unit’s] Rules and Regulations”—and books of a legal or religious nature.

Prison officials offered two reasons for this sweeping restriction of prisoners’ First Amendment rights. Newspapers, they said, could be wound up, turned into projectiles, used as night sticks, and deployed to make fires and hide contraband. Moreover, these officials argued, the deprivation of personal photographs and secular periodicals serves the goal of rehabilitation. Prisoners like to read about current events and look at photographs of their loved ones. Take these things away, the theory went, and recalcitrant prisoners, those “who have few other privileges to lose,” would behave.

Meanwhile, across an ocean, in a former dictatorship where “[p]risoners sleep on hard pallets more than a dozen to a cell and are held to a strict schedule of work and other activities from dawn to light-out[,]” inmates are learning that “they can be productive, that they aren’t useless scum of society”. In the prison where rehabilitation through dance began, gangs have been broken up, “weekly outbreaks of violence have subsided, inmates’ health has improved and recidivism rates are down dramatically”. This country? The Philippines, where the dance craze has spread to other prisons, thanks, in part, to this YouTube video, in which 1500 prisoners groove together.

Back in the United States, as Dayan's essay reminds us, on one day in 2006 some members of the Supreme Court expressed extreme dismay over Salim Hamdan’s being denied the right to be present at his trial before a military commission. That was just one day after members of the Court -- including some who'd expressed concern in Hamdan -- handed down the retrograde judgment upholding the denial of anything that might show certain prisoners that they are still present as human beings in society.

World War II déjà vu, all over again

The 2d of the transnational cases the U.S. Supreme Court's just agreed to review promises a revisit, yet again, to World War II-era precedents.
Litigation post-9/11 has prompted the Court more than once to plumb those precedents in determining whether and to what extent the Constitution protects persons the United States detains in time of conflict. In the citizen-enemy-combatant case Hamdi (2004), for example, the plurality relied heavily on its interpretation of Quirin (1942); in contrast, 2 other Justices dwelt on statutory reform in light of Korematsu (1944). Noteworthy has been the reliance on cases in which Justice Wiley B. Rutledge, Jr., for whom Justice John Paul Stevens clerked in 1947-48, took part: Stevens' opinion for the Court in Rasul (2004) drew on Ahrens (1948); in Hamdan (2006), on Yamashita (1946). (See analyses here, here, and here, here.) The just-granted Munaf likewise portends a new look at Hirota (1948).
Mohammad Munaf (left) and Shawqi Ahmad Omar (below left), both U.S. citizens who also hold citizenship in a 2d country, are in U.S. custody in Iraq, where a multinational military force is in place. An Iraqi court convicted Munaf of involvement in a kidnapping and sentenced him to death; Omar has not been charged. Both petitioned U.S. courts for habeas relief. The U.S. Court of Appeals for the D.C. Circuit ruled against Munaf 2-1. Yet a couple months earlier, a somewhat different panel of the same circuit had ruled in favor of Omar. Last week the Supreme Court consolidated and agreed to hear both matters. The importance of the 1948 precedent is evident not only in the circuit's reasoning, but also in Munaf's petition for certiorari, which includes this Question Presented:

Does the decision of the Court of Appeals, holding that Hirota v. MacArthur deprives the federal courts of jurisdction under these circumstances, extend the 1948 per curiam opinion in Hirota into conflict with this Court's post-1948 jurisprudence culminating in Rasul v. Bush and Hamdi v. Rumsfeld, and should that conflict be resolved either by restricting Hirota to its proper sphere or by overruling it?

As detailed here by our colleague Steve Vladeck, Kōki Hirota (below right) was a civilian diplomat and erstwhile prime minister who never held military rank; however, most petitioners in Hirota were, like Yamashita, Japanese military officers. Whereas

Yamashita had been convicted by a U.S. military commission sitting in the Philippines, petitioners in Hirota challenged their convictions before the multinational International Military Tribunal for the Far East (IMTFE). The Supreme Court had devoted many pages to its refusal to rule in favor of Yamashita; in contrast, it disposed of Hirota in a 3-paragraph per curiam, the crux of which are these sentences:

We are satisfied that the tribunal sentencing these petitioners is not a tribunal of the United States. The United States and other allied countries conquered and now occupy and control Japan. General Douglas MacArthur has been selected and is acting as the Supreme Commander for the Allied Powers. The military tribunal sentencing these petitioners has been set up by General MacArthur as the agent of the Allied Powers.
Under the foregoing circumstances the courts of the United States have no power or authority to review, to affirm, set aside or annul the judgments and sentences imposed on these petitioners and for this reason the motions for leave to file petitions for writs of habeas corpus are denied.

The opinion was shorter either than Justice Robert H. Jackson's December 6, 1948, statement that his colleagues were divided 4-4 on whether "the Japanese convicted of war crimes should have some form of relief, at least tentative, from this Court," 335 U.S. 876, or than Justice William O. Douglas' detailed concurrence with the denial of relief that the Court issued 2 weeks later.

Perhaps of particular contemporary interest is the identity of the 2 Justices who did not go along with that ultimate disposition of Hirota: One was Frank Murphy, who served as Attorney General before President Franklin D. Roosevelt appointed him to the bench in 1940. Murphy's dissenting vote in Hirota followed prior dissents in Korematsu, Ahrens, and Yamashita. The other was Rutledge, who'd gone with the majority in Korematsu, but wrote dissents in Ahrens and Yamashita that post-9/11 precedents have cited with favor.

So what did Rutledge do in Hirota? Good question.

The decision itself states:

Mr. Justice RUTLEDGE reserves decision and the announcement of his vote until a later time.

According to his biographer, Rutledge had drafted a dissent before argument was set, in which he set forth reasons the IMTFE might not qualify as a "'validly constituted international'" tribunal, such that exercise of federal jurisdiction would be proper. After argument, though, Rutledge "'passed'" on voting, reportedly remarking to his colleagues in conference, "'This is an international tribunal but if I get over that hump I would act.'" (John M. Ferren, Salt of the Earth, Conscience of the Court: The Story of Justice Wiley Rutledge 411-14 (2004)).

Rutledge never did come to rest in Hirota. He never wrote in the case -- never even cast his vote.

Check back in a few months for the role the circumstances of Hirota might play today: As with the other transnational case just granted, Munaf is due to be argued before the Court in spring 2008.

On December 7, ...

... 1917 (90 years ago today), at 5:03 p.m. Eastern time, the United States went to war against Austria-Hungary when President Woodrow Wilson signed a joint resolution of Congress authorizing the action. The United States had entered World War I in April, when it declared war against Imperial Germany.
... 1941, at 7:48 a.m. Hawaii time, Japanese bombers startled the U.S. Pacific fleet at Pearl Harbor with an early morning attack, prompting the United States' northern neighbor, Canada to declare war against Japan at once. The United States followed the next day, when President Franklin D. Roosevelt, in a speech to Congress that can be heard here, condemned December 7, 1941, "a date which will live in infamy."
... 1945, a U.S. military commission convicted and sentenced to death Japanese General Tomoyuki Yamashita, who had surrendered after Japan-controlled Philippines fell to the U.S. military. On a theory of command responsibility Yamashita (pictured at right returning to his cell after a day of trial) was held responsible for war crimes committed by his troops. In fewer than 2 months the U.S. Supreme Court rejected his habeas petition by a vote of 7-2, and Yamashita was hanged soon after. In time the opinions of dissenting Justices Frank Murphy and Wiley B. Rutledge, Jr. won over many legal commentators; indeed, they were discussed favorably in the Court's invalidation in Hamdan v. Rumsfeld of President George W. Bush's post-9/11 military commissions.
... 1952 (55 years ago today), U.S. Sen. Susan M. Collins (R-Me.), was born in Caribou, Maine.

On November 13, ...

... 1950, the Government of Tibet complained to U.N. Secretary-General Trgve Lie that it was the victim of Chinese aggression. The complaint by Tibet (flag at left) stated that even as international troops resisted aggression in Korea, "[s]imilar happenings in remote Tibet are passing without notice."

... 2001, President George W. Bush issued a Military Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism. Announcing a plan to detain captives in the "war on terror" that Bush'd declared in the wake of the terrorist attacks on September 11 of that year, the Order asserted the power "to ... detai[n], and, when tried, to ... tr[y] for violations of the laws of war and other applicable laws by military tribunals" any person whom "there is reason to believe":

(i) is or was a member of the organization known as al Qaida;
(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or
(iii) has knowingly harbored one or more [such] individuals ....

Executive detention at home and abroad of persons who came to be called "enemy combatants" -- among them 2 U.S. citizens, José Padilla and Yaser Esam Hamdi, as well as many noncitizens -- soon followed. The Supreme Court invalidated aspects of that policy in its 2004 decisions in Rasul v. Bush and Hamdi v. Rumsfeld, and in its 2006 decision in Hamdan v. Rumsfeld. It is due again to consider detention, in Boumediene v. Bush, on December 5, 2007.

States of emergency & habeas corpus

I am grateful to Diane for so thoroughly completing my post. As she so rightly points out, neither the US executive nor the legislature has suggested suspending the Constitution or dismissing members of the Supreme Court or any other court, though the Patriot Act, at least in its first version, arguably does away with much of the 4th Amendment. Diane also rightly says that Lincoln’s suspension of the writ of habeas corpus was controversial even in the mid-1800s. Today, the right to habeas corpus is at least implicitly nonderogable under international law: while no international treaty says so expressly, the Paris Principles of 1984 on states of emergency (see Richard B. Lillich, "The Paris Minimum Standards of Human Rights Norms in a State of Emergency", Am J. Int’l L., Vol. 79 (1985), pp. 1072-1081) eschew the suspension of habeas during states of emergency. The American Court of Human Rights followed that recommendation, judging in 1987 that habeas may not be suspended during a state of emergency; and the UN Human Rights Committee observed in 2001 that this essential right should not be suspended during emergencies. In addition, it is arguably protected by Common article 3 of the Geneva Conventions, which, as the Supreme Court recognized in Hamdan, requires that enemy combatants be judged by “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples”. The right to habeas corpus is one of them. (illustration courtesy of the American Civil Liberties Union's "Find Habeas" campaign, about which we've posted here)

Gitmo judge tosses Khadr case

Paraphrasing Justice John Paul Stevens' opinion for the Court in Hamdan v. Rumsfeld as follows -- "'A person has a right to be tried only by a court that has jurisdiction over him.'" -- a military judge just threw out the U.S. government's case against alleged child soldier Omar Khadr. The 3-page order of Judge Peter E. Brownback III, an Army colonel, has been posted here by the National Institute of Military Justice. Decision turned on the fact that § 948d of the Military Commissions Act passed post-Hamdan gives the commission jurisdiction only over an "alien unlawful enemy combatant." A Combatant Status Review Tribunal convened in 2004, 2 years before enactment of the MCA, found that Khadr was an "enemy combatant" but made no distinction as to lawfulness or unlawfulness of that status. Brownback wrote (¶ 11):

The military judge is not ruling that no facts could be properly established concerning Mr. Khadr which might fit the definition of an unlawful enemy combatant .... The military judge is ruling that the military commission is not the proper authority, under the provisions of the MCA, to determine that Mr. Khadr is an unlawful enemy combatant in order to establish initial jurisdiction for this commission to try Mr. Khadr.

Although Brownback left open the possibility of refiling of charges following a proper determination, Marine Corps Col. Dwight Sullivan, Chief Defense Counsel at Gitmo, said:

'The system right now should just stop. The commission is an experiment that failed, and we don't need any more evidence that it is a failure.'