President Obama’s Report on the Legal and Policy Frameworks Guiding and Limiting the Use of Military Force [UPDATED]
The Administration just released five new documents relating to the use of force, including detention, in counterterrorism operations against nonstate armed groups. The most important of these is this remarkable report, which comprehensively describes the domestic and international legal bases for the United States’ ongoing use of military force overseas and some of the key legal and policy frameworks that the law and the Obama Administration have established to govern and limit such uses of force and related national security operations, such as detention, transfer, and interrogation operations. (I’ll refer to it here as the “Use of Force Framework Report,” or “the Report.”)
In addition, the President has issued a Presidential Memorandum that will–unless a future President rescinds it–require the Executive branch to build upon the Use of Force Framework Report; it directs the national security departments and agencies to prepare such a report annually.
The President also transmitted his final semiannual War Powers report to Congress, describing the basis for the current and ongoing U.S. use of military force in six nations—an account of current operations that the Use of Force Framework Report explains in much greater detail.
Fourth, the Administration has posted the unclassified portions of the August 2009 Report, issued by the special task force established by Section 5 of Executive Order 13491, to study and evaluate the practices of transferring individuals to other nations.
Finally, the Department of Justice has posted the 2012 report it issued to Congress on “U.S. detention policy, including the legal basis for such a policy, as it applies to current and future terrorism detainees,” consistent with the Manager’s Statement regarding the 2012 “Minibus” Appropriations Act, Public Law No. 112-55.
In the first part of this post, I summarize some of the most important aspects of the Use of Force Framework Report. In the second part, I identify a small handful of questions that the Report does not address, and one discrete matter (about a provision of the Convention Against Torture) as to which the Report (in a footnote) errs.
The Use of Force Framework Report does not break any dramatic new ground. It is, instead, a compilation, and summation, of explanations the Obama Administration has provided in more than 40 earlier speeches, releases, briefs, memoranda, etc., published between the President’s third day in office and Defense General Counsel O’Connor’s speech at NYU last week. The Appendix to the Report lists the vast majority of those other documents, and the Report itself in effect consolidates many of them into a single document, which sets forth the vast majority of the legal and policy frameworks, and limits, that have governed U.S. counterterrorism operations for the past eight years. [For some thoughts on why such a compilation is especially valuable, I highly recommend Ben Wittes’ overview. See also the thorough summary of the Report from Lawfare’s Chris Mirasola and Helen Klein Murillo.]
Most importantly, the Report describes how, as the President writes in the Foreword, “the United States complies with all applicable domestic and international law in conducting operations” against its current nonstate enemies, and further “recounts actions my Administration has taken to institutionalize a policy framework to ensure that, in carrying out certain critical operations, the United States not only meets but also in important respects exceeds the safeguards that apply as a matter of law in the course of an armed conflict—particularly in the areas of the preservation of civilian life, transparency, and accountability.”
Before identifying some of the more important components of those legal and policy frameworks, it is important to note at the outset that the Report dispels two overarching, misleading themes that unfortunately are beginning to take hold as the nation transitions to the Trump Administration.
First, many critics allege that the U.S. government’s counterterrorism practices and legal limits have been unusually secret, or insufficiently transparent. This indictment is somewhat understandable because several aspects of the government’s actions have, indeed, remained unacknowledged (e.g., the extent to which the government has acted in certain nations, and the terms of consent and other diplomatic arrangements with those nations), and because the government has not defended yet other, acknowledged action in granular detail where they have have been based upon sensitive sources of intelligence that cannot be disclosed without compromising such sources (human, electronic and otherwise). I have written at length on this blog about the sources and causes of such nonacknowledgement and secrecy, and about how we might begin addressing the serious problems raised by such practices—see, e.g., this post, and this one, and this one. But until such time as those practices dramatically change—not only for the United States, but also for many other nations that regularly insist upon nonacknowledgement as a condition of consent and cooperation—there are, unfortunately, limits on what the government can reveal about its overseas practices. As the President writes in his Foreword, “there remains information about U.S. national security operations that we cannot disclose consistent with national security. Nor does this report address all conceivable legal aspects or justifications for the use of military force in every context or provide an exhaustive discussion of how the United States wages war.”
Even so, today’s Report undermines the idea that the United States has been especially or unusually secretive about its conduct of war, and the legal and policy frameworks that govern it, over the past eight years. The Report demonstrates, I think, that the United States has been far more forthcoming about such matters than any state has ever been, in any war or armed conflict in history. Nor is it even a very close question: I am unaware of any historical precedents for a Report with this level of description and explanation (not to mention the more than 40 other documents from which the Report is derived)–not even the Lieber Code itself, which the President understandably invokes as a model in the very first sentence of the Report. (I would be happy to be proven wrong about this, if any readers have helpful examples of states offering even greater detail about such matters.)
That is not to say that the Report and its generative documents are sufficient. As I point out below, and in my previous posts, the U.S. should take steps to enable it to offer even greater detail and transparency on the questions the Report addresses, not only to Congress but to the public as well. The President agrees. That’s why, in his Memorandum today, he has directed national security departments and agencies to “prepare for the President a formal report that describes key legal and policy frameworks that currently guide the United States use of military force and related national security operations, with a view toward the report being released to the public,” and has further directed that, “[o]n no less than an annual basis, the National Security Council staff shall be asked to, as appropriate, coordinate a review and update of th[at] report . . . , provide any updated report to the President, and arrange for the report to be released to the public.”
Whether or not the Administrations of President Trump and his successors make good on that requirement, today’s Report is, I think, a major step forward in terms of describing and making transparent the United States’s legal and policy-based understandings of the frameworks and limits on its uses of force abroad.
Second, the Report belies, and renders fairly untenable, the increasingly articulated meme that President Obama has bequeathing to President Trump a set of virtually unbounded authorities to use force abroad. To be sure, it is possible that President Trump might abandon some of the very important policy constraints that President Obama has insisted upon. But that prospect is something President Obama does not have the authority to prevent. The President has, however, done all that he could—including in this Report itself—to make the case why future Presidents ought to continue, and build upon, the frameworks he has established, which have made the use of force abroad much more discriminating and substantially limited the incidence of civilian casualties, far beyond what the law requires. Moreover, the Report demonstrates that there are numerous legal limits on the use of force that are more restrictive than many commentators, and potential Trump officials, have acknowledged.
Now, on to the substance of the Report. What follows are merely some of the highlights. There is much more in the Report itself, which warrants careful reading.
- Limits on the current armed conflicts—with special attention to ISIL and al Shabaab.
The Report confirms the Administration’s understanding that Congress has not authorized the President to conduct a so-called “Global War on Terror,” or (in President Bush’s words), a “war on terror . . . [with] every terrorist group of global reach”—let alone a “war” against all of “radical Islamic terrorism.” The 2001 AUMF, instead, authorizes the use of necessary and appropriate force only against particular nonstate groups that have actually attacked or (in perhaps some rare cases) planned to attack the United States. And even as to such groups, the war is not “global”—it is, instead, bounded by international law, which would prohibit the use of force in the vast majority of the world’s nations, including in all those states that are able and willing to deal with a threat emerging from within their borders.
As for the particular groups now covered by the AUMF, the Report reiterates that they are few in number: al-Qa’ida (including individuals who are part of al-Qa’ida in Libya and al-Qa’ida in Syria); the Taliban; “certain other terrorist or insurgent groups affiliated with al Qa’ida or the Taliban in Afghanistan”; AQAP; ISIL; and, now, al-Shabaab.
Of these, the only ones covered by the AUMF solely by virtue of being “associated forces” are the (unnamed) terrorist or insurgent groups affiliated with al Qa’ida or the Taliban in Afghanistan, and al-Shabaab. The finding that Shabaab is an “associated force” is something new in the Report. It was also a bit of a surprise when it was reported last week, because until now there has not been (as far as I know) any public information to the effect that Shabaab had actually “entered the fight alongside al-Qa’ida . . . in hostilities against the United States or its coalition partners,” which is what is necessary in order to become an “associated force” under the AUMF. The new Report explains, however, that “[a] determination was made at the most senior levels of the U.S. Government . . . only after a careful and lengthy evaluation of the intelligence concerning each group’s organization, links with al-Qa’ida or the Taliban, and participation in al-Qa’ida or the Taliban’s ongoing hostilities against the United States or its coalition partners,” and that, with respect to Shabaab in particular, “this determination was made recently . . . because, among other things, al-Shabaab has pledged loyalty to al Qa’ida in its public statements; made clear that it considers the United States one of its enemies; and been responsible for numerous attacks, threats, and plots against U.S. persons and interests in East Africa.” “In short,” the Report explains, “al-Shabaab has entered the fight alongside al-Qa’ida and is a cobelligerent with al-Qa’ida in hostilities against the United States, making it an ‘associated force’ and therefore within the scope of the 2001 AUMF.”
This explanation is very welcome, and important. Ideally, the government will at some point be able to offer the public further evidence that Shabaab has, as a cobelligerent of al Qaeda, and in the conflict between the U.S. and al Qaeda, “been responsible for numerous attacks, threats, and plots against U.S. persons and interests in East Africa.” Presumably, such a detailed public account is not yet possible because of the sensitivity of the sources on which the relevant intelligence is based. Even so, this Administration or the next one should do whatever it can to describe such evidence, not only to Congress but also to the public, so that the American people can be informed about how Shabaab is actively engaged in hostilities against the United States in a way that justifies the use of military force against that the members of that terrorist group. It is vitally important to belie the common assumption that the President has statutory (or constitutional) authority to strike the members of any terrorist organization that he deems potentially threatening, without more.
With respect to ISIL, the Report reiterates the legal theories for the use of force that the government has previously offered under the 2001 and 2002 AUMFs, which I describe in greater detail here. (For what it’s worth, I think the 2002 AUMF argument (see note 25 of the Report) is the stronger one, particularly insofar as the U.S. is acting against ISIL in order to prevent that group’s attacks on and threats to Iraq.) Importantly, the Report adds a brief factual explanation (p.6) of why the use of force against ISIL is designed not only to protect Iraq against ISIL attacks, but also to protect the United States itself from current ISIL attacks and threats: ISIL “has continued to plot attacks against U.S. persons and interests in Iraq and the region—including the brutal murder of kidnapped American citizens in Syria and threats to U.S. military personnel that are now present in Iraq at the invitation of the Iraqi Government.”
As for geography, the Report repeats the government’s view that the AUMF is not limited to Afghanistan, but it also studiously avoids any claims of authority to use military force to strike members of the covered armed groups anywhere and everywhere. To the contrary, and as the Administration has explained before, the Report confirms that international law (which governs interpretation of what is “necessary and appropriate” under the AUMF) would prohibit the use of military force across the vast majority of the globe: The Executive does not have “a license to wage war globally or to disregard the borders and territorial integrity of other States.” In particular, the U.S. may use force “on foreign territory without consent only in those exceptional circumstances in which a State cannot or will not take effective measures to confront a non-State actor that is using the State’s territory as a base for attacks and related operations against other States.” (And even as for states that have given consent, the Administration has not asserted that force could be used any enemy forces without limit. In its al-Aulaqi memorandum, for example, OLC went only so far as to say that the armed conflict against AQAP, and AUMF authority, applied “in Yemen, where . . . AQAP has a significant and organized presence, and from which AQAP is conducting terrorist training in an organized manner and has executed and is planning to execute attacks against the United States.”)
- Basis for Article 51 actions pursuant to “inherent right of individual or collective self-defence” against nonstate actors in nonconsenting states.
As the Report indicates, the United States has rarely used force in the past eight years in the territory of a state that did not consent to it—the principal exceptions being the bin Laden operation in Pakistan (discussed here and here) and the recent operations in Syria. Those rare cases raise the question of whether the U.S. is complying with Article 2(4) of the U.N. Charter, which provides that states “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”
Article 51 of the Charter confirms that neither Article 2 nor any other provision of the Charter “shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.” And today’s Report restates what State Legal Advisor Brian Egan explained in his recent speech—namely, that the “inherent right of individual or collective self-defence” can apply to actions taken to address “armed attacks” from nonstate actors (such as ISIL today, or the Canadian rebels in the nineteenth century case of The Caroline) even in situations where the host state is not complicit in, or responsible for, the nonstate actor’s armed attacks upon the acting state. The Report correctly states that this view is “widely accepted”—indeed, it is difficult to identify any states that have publicly rejected it. The Report also helpfully reiterates that use of force against such attacks are permissible in self-defense only, at a minimum, when they satisfy the ad bellum requirement of “necessity,” and that the “unwilling or unable” test is an application of that necessity requirement—a precondition on the use of force, not a sufficient justification for it. I discuss all of this, along with questions of “imminence” related to Article 51 self-defense, in much greater detail in my post about the Egan speech.
- Additional legal limits on use of force directed at U.S. citizens.
Part I-B-1 of the Report offers a useful summary of the additional legal constraints that apply in the rare cases in which the government decides whether to use lethal force against a U.S. citizen who has joined enemy forces and planned attacks against the United States from abroad. It also states that the U.S. has only made a “specific, targeted strike against an identified U.S. citizen” once–the strike against Anwar al-Aulaqi.
4. Article II authority.
Perhaps because virtually all current military operations are being conducted pursuant to statutory authorities, the Report does not go into a lot of detail about the President’s Article II authority to act in the absent of such authority. It does, however, incorporate the OLC analysis in the 2011 opinion on Libya, which articulates what I have called the “third way” view, falling between the “traditional” view that the President’s constitutional initiation authority is limited to repelling ongoing or imminent attacks, and the view of the George W. Bush Administration, which was that the President can take the Nation into full-fledged, extended war without congressional approval, as President Truman did in Korea, as long as he does so in order to advance the “national security interests of the United States.” The Report further confirms that when the President does act pursuant to his Article II authority, he is subject to the requirements and limits of the War Powers Resolution, including the 60-day clock of section 5(b).
The Report offers one example where the President recently relied on his constitutional authority to direct U.S. military force: the October 2016 strikes against radar facilities in Houthi-controlled territory in Yemen that were designed to protect U.S. forces against Houthi attacks, where the “limited nature, scope, and duration meant that the operation did not rise to the level of ‘war’ within the meaning of the Declaration of War Clause.” Protection of U.S. forces is, indeed, a well-established basis for at least limited exercises of Article II authority. (Today’s War Powers report to Congress indicates that the strikes against al-Shabaab this year on June 21, July 20, July 31, August 31, September 25, and September 28 were all undertaken, at least in part, in defense of U.S. forces against attack, even if they might have occurred before the determination was made that Shabaab is covered under the AUMF as an associated force of al Qaeda.)
The Report does not address two other Article II questions that have arisen in recent years: (i) whether the President’s Article II authority ever includes the power to act in a way that puts the U.S. in breach of its obligations under the U.N. Charter (I argued here that it probably doesn’t); and (ii) whether and when Article II authorizes the President to use force purely for humanitarian purposes, at least in limited circumstances. The President’s September 1, 2014 War Powers report suggested an affirmative answer to the latter question, with respect to “operations . . . limited in their scope and duration as necessary to address this emerging humanitarian crisis and protect the civilians trapped in Amirli, Iraq,” when that town was “surrounded and besieged by ISIL.” Because we now know, however, that the Administration views the 2001 and 2002 AUMFs as covering ISIL, it is unclear to what extent the September 2014 War Powers report was intended to set an Article II precedent. The question is certainly an important topic for future consideration, and debate, even if it is unlikely that President Trump will often be inclined to use force without congressional authorization for humanitarian purpose.
5. The 2013 PPG.
Part I-C-1 of the Report discusses the critically important policy restraints, both procedural and substantive, in the 2013 Presidential Policy Guidance on Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities (PPG). This recent excellent essay by Luke Hartig explains the practical significance of the PPG–how dramatically it has affected how often the nation uses force, and how successful it has been in reducing the level of civilian casualties.
By its terms, the PPG does not apply—at least not in full—to so-called “areas of active hostilities,” which currently include Afghanistan, Iraq, Syria, and certain portions of Libya. It has been something of a puzzle how and why the Administration determines whether certain locations are, or are not, subject to the PPG. Today’s Report helpfully offers a bit more insight (p.25) on the multiple factors that apparently bear on that question:
The determination as to whether a region constitutes an “area of active hostilities” does not turn exclusively on whether there is an armed conflict under international law taking place in the country at issue, but also takes into account, among other things, the size and scope of the terrorist threat, the scope and intensity of U.S. counterterrorism operations, and the necessity of protecting any U.S. forces in the relevant location. Afghanistan, Iraq, Syria, and certain portions of Libya are currently designated as “areas of active hostilities,” such that the PPG does not apply to direct actions taken in those locations. The policy standards and processes contained in the PPG also do not apply to direct action taken when the United States is acting quickly to defend U.S. or partner forces from attack or outside the counterterrorism context, such as the October 12, 2016, U.S. military strikes on radar facilities in Houthi-controlled territory in Yemen.
6. Application of human rights law.
The Report states that “a situation of armed conflict does not automatically suspend nor does the law of armed conflict automatically displace the application of all international human rights obligations,” and that “[i]nternational human rights treaties, according to their terms, may also be applicable in armed conflict.” In particular, the UN Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (UNCAT) “continues to apply even when a State is engaged in armed conflict.” [UPDATE: I just recalled that Sarah Cleveland published a great post on this topic two years ago, when the U.S. delegation appeared in Geneva and “articulated a welcome and substantially refined vision of the relationship between IHL and the CAT, in which the terms of the CAT presumptively apply, except in the quite specific case of a conflict between IHL and a particular CAT provision.”]
The Report further states that “[i]n accordance with the doctrine of lex specialis, where [human rights law and the law of armed conflict] conflict, the law of armed conflict would take precedence as the controlling body of law with regard to the conduct of hostilities and the protection of war victims.” There are, however, very few instances in which human rights law actually conflicts with IHL. (At the end of this post, I discuss how the one example the Report offers does not actually involve a conflict between these bodies of international law.)
The Report does not specifically discuss one of the most frequently debated questions about the relationship of IHL and IHRL–namely, how Article 6(1) of the International Covenant of Civil and Political Rights (ICCPR), which prohibits the “arbitrary” taking of life, applies with regard to the use of force against enemy forces in an armed conflict. Footnote 37 of the OLC al-Aulaqi memo does, however, briefly address the U.S.’s views on that question.
7. Limits on aid to allies and partners.
Part IV-A of the Report provides a thorough discussion of the various laws and policies — including not only international law, but, importantly, the “Leahy Laws” and Executive Order 12333 — that limit U.S. provision of aid and assistance, including intelligence, to other states when those other states violate international law or fail to meet other domestic-law standards. The Report also explains (p.13) that when sharing intelligence, the U.S. may not ask a partner to do anything that the U.S. government itself cannot.
8. Urging Consent to Additional Protocol II
The Reports reiterates the Administration’s strong support for Senate advice and consent to Additional Protocol II to the Geneva Conventions, which contains detailed humane treatment standards and fair trial guarantees that would apply in the context of non-international armed conflicts. The Report restates that U.S. military practice is already consistent with the Protocol’s provisions. Joining the treaty thus “would not only assist the United States in continuing to exercise leadership in the international community in developing the law of armed conflict, but would also reaffirm the United States’ commitment to humane treatment in, and compliance with legal standards for, the conduct of armed conflict.”
9. Strong preference for criminal (especially Article III) trials.
The Report reiterates the President’s strong preference for Article III trials of terrorism suspects, and his belief that long-term military detention should be an option of last resort. (In this post, I discuss the President’s success in virtually ending the practice.) Indeed, the Report notes that “[i]n practice, all of the terrorism suspects apprehended and held by the U.S. Government since January 2009 outside of areas of active hostilities have ultimately been handled by the criminal justice system, as many others were in prior Administrations, or have been transferred to other countries.” The Report further explains that Miranda v. Arizona has not resulted in any loss of intelligence from the individuals who are prosecuted within the Article III system. The 2012 DOJ memo on detention practices, also released today, goes into greater detail on Miranda warnings: “Many years of experience have demonstrated that Miranda warnings are not a significant impediment to intelligence collection, and that the question whether a terrorist suspect will cooperate depends principally on the individual, the facts and circumstances of the case, and the skill of the interrogators.”
10. Multiple legal and policy-based restrictions on torture and other forms of abuse.
Part III-C-1 of the Report offers a comprehensive assessment of the numerous legal and policy-based limits on the torture and other abuse of detainees–a legal regime that ought to be very difficult, if not impossible, for a future Administration to change or circumvent. (Footnote 205 also stresses, contrary to some incorrect speculations, that Appendix M of Army Field Manual -22-3 does not authorize or condone the use of sleep manipulation or sensory deprivation, and specifies that “all techniques, including separation, must be applied in a manner consistent with the prohibition on torture and CIDTP.”)
11. “Substantial support”.
Page 30 of the Report restates that the 2001 AUMF authorizes the detention–at least in theory–of some individuals who “substantially support” enemy forces in the course of their hostilities against the United States or its coalition partners. Importantly, however, the Department of Justice’s March 13, 2009 brief, described in the Report, clarifies that this authority extends only to to persons “whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable.” Thus, as Steve Vladeck and I have explained, it is necessary to look to permissible detention practices that would be “appropriately analogous . . . in a traditional international armed conflict” in order to determine which forms of “support” by individuals who are not part of enemy forces would justify detention in the current noninternational conflicts. Today’s Report repeats the example we offered (which was also mentioned in a DOJ brief in the Hedges case): Perhaps substantial supporters of enemy forces who are apprehended while accompanying such forces can be detained on roughly the same terms as the forces themselves, just as “civilian members of military aircraft crews or members of services responsible for the welfare of the armed forces” can be detained in an IAC. Cf. Third Geneva Convention, art. 4(4). The Report notes, however, that “[i]n practice, the United States has not relied in court proceedings exclusively on the ‘substantial support’ concept to justify the continued detention of any individual held at Guantanamo Bay.” Furthermore, and importantly, the Report does not suggest that “supporters” outside of enemy forces can always be targeted. Such a use of force would be permissible only if, and when, the support rises to the level of direct participation in hostilities (a subject the Report does not discuss).
In this final part of the post, I’ll identify three topics the Report does not discuss in detail that warrant further consideration, and then one discrete issue, concerning Article 14 of the CAT, on which I think the Report is probably incorrect.
- Covert Action.
Not surprisingly, the Report does not discuss covert actions. Indeed, the principal topic of today’s Report is (as its title indicates) the use of military force; and it is unlikely (though not inconceivable) that the military is engaged in covert uses of force. In his Foreword, however, the President does assure, somewhat more categorically, that “the United States complies with all applicable domestic and international law in conducting operations against” its new nonstate enemy forces. Likewise, on page 19 the Report states that “[t]he U.S. Government makes extensive efforts to ensure that its targeting efforts comply with all applicable international obligations, domestic laws, and policies.”
Covert actions are anything but unregulated as a matter of law. There are both statutory limits and restrictions within the various, sometimes highly reticulated terms of the pertinent presidential notifications, or Memoranda of Understanding (MON), that must be signed in order to authorize covert actions. The Report naturally does not get into these questions, some of which I discuss in this post. And, because the Report does not consider covert actions specifically, it does not address the important and difficult question that might have been raised by the bin Laden operation—namely, whether the President has constitutional or statutory authority to use covert action that breaches Article 2(4) of the United Nations Charter. I offer some tentative views on the question here; as I note in that same post, however, the government probably did not have to resolve the question in the bin Laden case, because it likely concluded that the operation was a permissible action in self-defense under Article 51 of the Charter.
- Assessing who is “part of” enemy armed forces.
At pages 29-30, the Report includes a rich discussion, derived from Brian Egan’s recent speech, concerning how to determine whether an individual is “part of” an enemy force who can be targeted or detained for the duration of hostilities. As the Report explains, it is often impossible to rely upon the usual indicia of integration, such as membership cards or uniforms, to assess membership in nonstate armed forces such as those with which we are currently engaged in armed conflict. Therefore, although in some cases there might be evidence of formal membership, or willingness to be subject to the command structure—namely, a loyalty oath—often it is necessary to look instead to “functional indications” (the Report lists at least a dozen), and the ultimate question “will necessarily turn on the totality of the circumstances.” Moreover, as the Report notes, the U.S. Court of Appeals for the D.C. Circuit has clarified that “[e]vidence that an individual operated within al-Qaida’s command structure is ‘sufficient but is not necessary to show he is ‘part of’ the organization,’” at least for purposes of detention.
All this is correct, and reflects the recent case law, but neither the Report itself nor the court of appeals has quite come to terms with how the totality of the circumstances should be assessed, i.e., what precise question must be answered in cases where there is no evidence of formal “membership” in an enemy force. Identifying that critical question should, in turn, probably depend on why the law permits targeting (and long-term detention) of individuals who are part of the armed forces in the first instance. For example, if that longstanding norm is predicated on the idea that it is permissible to incapacitate individuals who are valuable assets of the enemy because they are subject to its direction and control—who will attack the opposing force when ordered to do so—then whether or not an individual is subject to, e.g., al Qaeda’s direction and control ought to be the ultimate question to be asked and answered, even if (as the courts have held) it is not necessary to proffer any express, or direct, evidence of such direction and control, or that the individual was “operating within the command structure.”
This is a very difficult, unresolved topic that warrants further careful study (and possibly further elucidation in habeas litigation).
Moreover, the Report implies that proof of membership in al Qaeda is sufficient to render a person targetable (and detainable). As I’ve explained elsewhere, that might be correct, at least if the government is right that al Qaeda is an organized armed group–a military organization–through and through, with no “civilian” wing, and that therefore membership in al Qaeda is analogous to being enlisted in the U.S. armed forces, making one targetable on that ground alone (except when such persons are hors de combat or entitled to special protection due to their particular function).
As I wrote, however, things are more complicated when it comes to ISIL because, unlike al Qaeda — but like, say, Hamas in Gaza — ISIL effectively controls and governs substantial swaths of territory. Presumably, therefore, the “membership” of ISIL includes some officials who have purely civilian, governance functions, who have no duty to follow direction to perform belligerent functions. If there are such civilian ISIL members, the U.S. presumably could not target them unless and until they directly participate in hostilities. (The ISIL situation, in other words, might be more analogous to U.S. targeting of the Taliban in 2001, when it still governed Afghanistan. Likewise, in its 2014 conflict against Hamas in Gaza, Israel considered certain components of Hamas, but not others, as organized armed groups subject to targeting (see paragraphs 264-267 of this Report.)
Today’s Report does not address this question, which might be of increasing importance in operations against ISIL. It, too, warrants further careful attention.
- Extraterritorial Application of Convention Against Torture Article 3.
Article 3(1) of the U.N. Convention Against Torture provides that “[n]o State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” As today’s Report notes, “in 2008, the United States stated that Article 3 of UNCAT does not impose any legal obligations on the United States with respect to individuals located outside U.S. sovereign territory, such that the Article is not applicable as a legal matter to transfers occurring from outside U.S. sovereign territory, including in the context of armed conflict.” The Report further stresses, however, that “as a matter of policy, the United States applies the UNCAT Article 3 standard to all transfers regardless of location.” Therefore, as the 2009 Task Force Report released today noted, “[i]n light of the United States’ stated policy commitment not to send any person, no matter where located, to a country in which it is more likely than not that the person would be subject to torture,” it has been unnecessary to revisit the legal question.
I hope and trust that this policy commitment will remain in place, and that it will never become necessary for the United States to reconsider the treaty interpretation question; if it ever does so, however, Harold Koh has offered compelling reasons (see pp. 52-72) why the Bush Administration position is open to serious question. (FWIW, I have not closely studied the question myself.) Moreover, as Koh also wrote, “[t]he denial of the legal obligation invites suspicion and distrust from our audiences, domestic and foreign” and “invites emulation from States less scrupulous about compliance, and thus risks undermining the effectiveness of the global regime of protection the CAT sought to establish.”
- Whether Article 14 of the CAT applies in armed conflicts.
As I noted above, the Report commendably explains that “a situation of armed conflict does not automatically suspend nor does the law of armed conflict automatically displace the application of all international human rights obligations.” It further states, however, that where human rights law and IHL “conflict” with one another, “the law of armed conflict would take precedence as the controlling body of law with regard to the conduct of hostilities and the protection of war victims.” Then, in footnote 198, the Report offers the following example of a supposed “conflict” between the two bodies of law:
For example, although Article 14 of the Convention [Against Torture] contemplates an enforceable right to fair and adequate compensation for victims of torture, it would be anomalous under the law of armed conflict to provide individuals detained as enemy belligerents with a judicially enforceable individual right to a claim for monetary compensation against the Detaining Power for alleged unlawful conduct. The Geneva Conventions contemplate that claims related to the treatment of POWs and Protected Persons are to be resolved on a state-to-state level, and war reparations claims have traditionally been, and as a matter of customary international law are, the subject of government-to-government negotiations as opposed to private lawsuits.
I assume this is a correct description of how torture and other “war reparation” claims have “traditionally” been resolved, consistent with IHL, under “traditional” practice between belligerent states in international armed conflicts. (Obviously, there is no such state-to-state method of resolution in a NIAC, and therefore the footnote point about Article 14 should be understood to be specific to IACs.) As Sarah Cleveland earlier wrote, however, there’d be nothing “anomalous” about also providing detainees with a judicially enforceable individual right, as Article 14 requires. More to the point, recognizing such an individual right would not conflict with IHL—there would simply be complementary potential remedies. Therefore the footnote fails to make the case that Article 14 does not apply in armed conflict, even assuming the “conflict” version of lex specialis described in the Report text.