The capture of Ahmed Abu Khattalah was performed by a joint group of FBI agents and U.S. Special Operations forces. A New York Times story reported an official as saying that “while the Delta Force soldiers provided the muscle, the raid was carried out under law enforcement authority.” There is clear statutory authority for the FBI to engage in such a capture if it does not violate international law. (I speculate below on the domestic law authority for the involvement of the Special Forces.)
The question of FBI domestic law authority is not as clear, however, if the abduction would violate another state’s sovereignty in violation of customary international law. In 1980, the Office of Legal Counsel concluded that the FBI had no domestic law authority to abduct a fugitive residing in a foreign state when it would violate customary international law protecting sovereignty. 4B Op. O.L.C. 543 (1980). In 1989, however, OLC controversially overruled that aspect of its 1980 opinion. The 1989 OLC opinion reasoned that the Charming Betsy canon should not apply, and that Congress therefore should be understood to have authorized the Bureau to make arrests in violation of international law. (I do not know whether the Obama Administration has revisited the question. It probably has not had occasion to do so since, as explained below, the Administration has concluded that the Abu Khattalah operation did not violate international law.)
So did the capture violate international law?
Unless some exception applies (in particular, the right to act in self-defense to prevent future attacks—see below), longstanding international law norms of sovereignty and territorial integrity prohibit law enforcement officers of one state from exercising their functions in the territory of another state. Section 432(2) of the Restatement (Third) of the Foreign Relations Law of the United States (1987) sets forth the relevant customary rule: “A state’s law enforcement officers may exercise their functions in the territory of another state only with the consent of the other state, given by duly authorized officials of that state.” The United States has never taken issue with this rule—indeed, it has long insisted upon it.*
There are two primary circumstances where international law arguably does not prohibit such an extraterritorial arrest: (i) where the host nation consents; and (ii) where the arrest is a proper means of self-defense against future attack against the arresting country and the host nation is unable or unwilling to ameliorate that threat. Libyan consent does not appear to be a justification here (or anyway, not one upon which the U.S. is relying publicly). The Libyan envoy to the U.N. told Foreign Policy that Libya “considers [the capture] as a violation of legal sovereignty and certainly they are asking for some explanation from the U.S. government.”
That U.S. explanation came yesterday morning: In short, the U.S. view is that the Abu Khattala operation was not only in the service of law enforcement, but also a legitimate act of self-defense, necessary to prevent future attacks. U.N. Ambassador Power submitted a letter to the U.N. Security Council President (Russia’s Vitaly Churkin), explaining that “a painstaking investigation” had determined not only that Abu Khattalah was a “key figure” in the Benghazi attack of September 2012, but also “that he continued to plan further armed attacks against U.S. persons.” (Thanks to Charlie Savage for posting the letter.) The Power letter states that “[t]he measures we have taken to capture Abu Khattalah in Libya were therefore necessary to prevent such armed attacks, and were taken in accordance with the United States’ inherent right of self-defense.” This self-defense assertion was reported to the Security Council, according to the letter, “in accordance with Article 51″ of the U.N. Charter, which provides that “[m]easures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council.”
The Power letter does not give any details about why the capture was “necessary” to prevent the attacks Abu Khattalah allegedly was planning–in particular, why Libya itself was unable or unwilling to prosecute Abu Khattalah or otherwise stop such attacks. The undisclosed facts will matter: Unless Libya in fact consented to the capture operation, the question of necessity would be critical to determining whether the operation was, in fact, a legitimate use of self-defense (which in turn might determine whether there was domestic law authority for the operation, as well).
* * * *
A quick word about the domestic law authority for the involvement of the Special Forces in the capture operation: I do not know offhand of the statutory authorities–e.g., under Title 10 or an authorization or appropriations law–that might regulate involvement of the armed forces in a law enforcement capture operation overseas. (Can any JS readers share such knowledge?). But if, as the U.S. asserts, the operation was a legitimate act of self-defense, then, for purposes of domestic law, the President likely would have had constitutional authority to order it, in addition to the FBI’s statutory authority. In that event, it would not matter whether there was also independent statutory authority for whatever role the Special Forces played.
* State Legal Adviser Abraham Sofaer, for example, offered this testimony in 1989:
“Territorial integrity” is a cornerstone of international law; control over territory is one of the most fundamental attributes of sovereignty. Green Hackworth, one of my predecessors as Legal Adviser, explained in 1937 that “it is a fundamental principle of the law of nations that a sovereign state is supreme within its own territorial domain and that it and its nationals are entitled to use and enjoy their territory and property without interference from an outside source”. 5 Whiteman, Digest of International Law 183(1965). Forcible abductions from a foreign State clearly violate this principle. In his important Survey of International Law in 1949, Sir Hersh Lauterpacht wrote of “the obligation of states to refrain from performing jurisdictional acts within the territory of other states except by virtue of general or special permission. Such acts include, for instance, the sending of agents for the purpose of apprehending within foreign territory persons accused of having committed a crime.” Lauterpacht, E. (ed.), International Law, Vol. I, 487-488 (1970). See also Section 433, Restatement (Third) of the Foreign Relations Law of the United States. The United States has repeatedly associated itself with the view that unconsented arrests violate the principle of territorial integrity. In 1876, for example, Canadian authorities subdued a convict in Alaska in the course of transferring him between two points in Canada. Secretary Fish protested the action, contending “aviolation of the sovereignty of the United States has been committed”. The abducted individual was released following an official British inquiry. In another case, the Canadian government abducted two persons from the United States and brought them back to Canada for trial. After an official complaint by the United States, the Canadian government apologized and offered to return the two. Satisfied with the apology, the United States permitted Canada to try the two men for their felonies
On the other side of the ledger, in 1871 British authorities protested the seizure by a U.S. citizen of an individual from Canada. Although the United States denied any official involvement in the abduction, the United States acceded to a British request that charges be dropped against the abducted individual, and informed the British, “I trust that I need not assure you that the government of the United States would lend no sanction to any act of its officers or citizens involving a violation of the territorial independence or sovereignty of her Majesty’s dominions”. More recently, two American bail bondsmen seized an individual from Canada and brought him to Florida for trial before the State courts. After vigorous Canadian protest, and intervention by the federal government, the State of Florida released the individual; the bail bondsmen were extradited to Canada and convicted.
[FBI Authority to Seize Suspects Abroad: Hearing Before the House Subcomm. on Civil & Const. Rights of the Comm. on the Judiciary, 101st Cong., 1st Sess. 31-33 (1989) (prepared statement of Abraham D. Sofaer, Legal Adviser, U.S. Dep’t of State).]