International Law and U.S. Military Strikes on Syria

(Published in the Huffington Post, Aug. 31, 2013).

Cruise missile launchThere has been insufficient analysis, by both policy makers and the media, of the legality of the looming use of military force against Syria. As usual, the law seems to be beside the point. But this not only ignores a key factor, but is rather paradoxical given that one of the primary justifications for the strikes is that they are to punish the Syrian government for its violations of international law. Legality should be an important factor in the decision-making process, because if the use of force is itself not lawful, then it represents nothing more than vigilante justice, likely doing far more harm than good to the international legal order.

There is little doubt that the Syrian regime has committed war crimes and crimes against humanity against its own people over the last two years. If it is proven that the Assad regime used chemical weapons in the attack last week, that would constitute a separate and grave violation of international law. All of this screams out for a response by the international community.

The reality, however, is that these crimes do not justify a unilateral use of force, and the contemplated American military strikes would not be lawful. Indeed, the Obama administration, while tossing out platitudes about complying with international norms, has not even tried to make the legal case justifying the use of force. … Read more…

Boston and the Dangerous Calls for “Enemy Combatant” Status

(Published in the Huffington Post,  Apr. 30, 2013, and The Truman Doctrine blog, Apr. 30, 2013)

The Obama Administration announced last week that it would prosecute Boston bomber Dzhokhar Tsarnaev in the Federal criminal justice system. This should have been unremarkable, but it came amidst a cacophony of voices demanding that Tzarnaev be classified and treated as an “enemy combatant.” There were calls to similarly classify the Christmas day bomber, the Times Square bomber, and several other terrorist suspects captured in the United States. Such claims have no legal validity, and are indeed dangerous.

The calls for “enemy combatant” status not only came from various so-called pundits on Fox News and the like, but also from more serious quarters. Senator Lindsey Graham criticized the administration, arguing that Tsarnaev should be classified as an “enemy combatant” under the law of armed conflict for the purposes of extracting intelligence.

Alberto Gonzales, former White House in the Bush administration stated in an interview last week that “nothing prevents the President from deciding: ‘This isn’t working, it’s not going the way we hoped it would go, so I’m pulling him out of the criminal justice system and I’m designating him an enemy combatant.'” … Read more…

On the Anniversary of the Iraq Invasion

(Published in the Truman Doctrine Blog, part of a series of 250 word entries on how the Iraq War shaped one’s life and ideas)

Back in 1990, in the run-up to the Gulf War, I was a naval officer, and like most of the world, supported the need to use military force. As a student of history, I understood that force is sometimes necessary in the face of aggression.

By 2003, I was a lawyer, and like much of the rest of the world, I viewed the invasion of Iraq as unnecessary, unwise, and unlawful. The Bush administration’s rationales shifted from “preventative” self-defense against Iraq’s WMD, to resurrection of the U.N.’s authorization to use force in the Gulf War, to claims of links to Al Qaeda and 9/11. In the absence of WMD, the government even stooped to advancing human rights justifications for the attack. None were valid.

I was not directly affected by the war, but I was increasingly disturbed by the developments in Iraq, and the so-called “global war on terror” to which it was inextricably linked. The hundreds of thousands of civilian dead, Guantanamo Bay, Abu-Grahib, the torture memos, targeted killing – and all distorting the law and eroding the rule of law, at home and in the international system.

These contributed to my decision to leave practice and head back to school to research the legal constraints on the use of military force. I became a law professor. So in this way I suppose the war helped shape my life’s path. And I strive for a time when such unjust wars will be more difficult for democratic governments to wage.

Comment on Jens Ohlin’s “Targeting Co-Belligerents”

(Published on Opinio Juris, as part of a book symposium, June 4, 2012)

Jens Ohlin’s chapter in Targeted Killings, Targeting Co-Belligerents,” provides an important analysis of one of the key questions in the targeted killing debate, and makes a persuasive argument in favor of one possible response to it. In doing so, however, I wonder if it leaves another fundamental question hanging, which I lay out below for him to address. First, however, let me provide a sketch of his argument.

Jens begins by noting how the US targeted killing policy, and the transnational terrorism against which it is directed, raises difficult questions regarding which legal regime should be controlling. Not only is there an ongoing debate as to whether responses to terrorism should be governed by domestic criminal law within a law enforcement paradigm, or public international law in the context of armed conflict, but even for those who accept the armed conflict paradigm there are debates over whether the principles of jus ad bellum or jus in bello are best suited to justify the targeted killing.

Against that backdrop, and assuming for the sake of his analysis that some targeted killing will be permissible in some circumstances, Jens addresses the question: “who can be targeted and why?” His stated objective is to investigate “the tension between national security and civil liberties through a distinctive framework: what linking principle can be used to connect the targeted individual with the collective group that represents the security threat?” As he explains, regardless of whether one approaches the problem from a jus in bello or a jus ad bellum perspective, the problem of linking the individual targeted to some collective is an essential step in the justification process. … Read more…