Why Both Sides Got it Wrong About Tsarnaev

When Dzhokhar Tsarnaev was arrested after a firefight with the police and then a dash into the darkness that ended with him curled up in a backyard boat, there was criticism from both sides of the legal/political spectrum.  First, Sen. Lindsey Graham was incensed that Tsarnaev's detention was being handled by the civilian criminal justice system.  Graham wanted him labeled an enemy combatant and held in military custody.  Phrases like "the War on Terror" crept into the discussion sparked by Graham's demand, and there were plenty of commentators who agree with Graham that Tsarnaev's detention was a matter of national security for the military to run.

On the other side of the spectrum, the Administration quickly distanced itself from Graham's suggestion.  In making the point that the case should be handled by the domestic criminal justice system, White House spokesman Jay Carney noted two seemingly crucial facts: Tsarnaev was an American citizen, and he was captured on U.S. soil.  Apparently these two facts indicated that the civilian process -- not a military one -- was required for Dzhokhar Tsarnaev.

I think both sides of this debate got it completely wrong.  Graham was wrong because there was no reason for military detention here because the operation had nothing to do with an armed conflict.  On the other hand, the Administration also got it wrong by appealing to citizenship and location -- two factors which are not determinative of the matter.  Let me explain more why I think both sides are wrong on this.

First, as to U.S. citizenship.  Under the laws of war, citizenship confers no immunity from military detention (as long as military detention is authorized by some legal norm). Indeed, citizens are sometimes detained in non-international armed conflicts (NIAC), as they were during the U.S. Civil War.  Second, as to territory, the geography of the detention is also not fully determinative.  Although the United States is not accustomed to engaging in armed conflict within the borders of the homeland, this is a contingent fact of our relative security, not a legal necessity.  In other words, if fighting were to come to the shores of the United States, the laws of war would still apply in those situations.

That being said, I happen to agree with the Administration that Dzhokhar Tsarnaev could not be subject to military detention, although for completely different reasons.  The correct reason is that Tsarnaev is not a member of an armed group with which the United States is engaged in an armed conflict.  Although facts are still being gathered, at this moment in time there is no publicly available information to suggest that Tsarnaev is a member of Al-Qaeda or any other group that is currently engaged in an armed conflict with the United States.  And that's the relevant issue here.  Military detention is triggered by the laws of war, which itself is only triggered when there is an armed conflict between parties.  The location or the citizenship of the detainee just is not relevant for international law. 

Now, you might ask whether there are additional constitutional protections that apply in the territory of the United States? You might think so, although the leading case regarding detention of U.S. citizens, Hamdi v. Rumsfeld, largely drew upon the international laws of war to provide the content of the constitutional due process rights that Hamdi was owed.  Furthermore, in Boumediene, the Supreme Court extended many of those same principles to non-U.S. citizens, further suggesting that citizenship lacks great constitutional significance in this area.

(U.S. statutory law is a different matter.  Congress can limit the jurisdiction of military commissions to non-U.S. citizens if it wants.)

What about territory?  Hamdi involved the capture of a U.S. citizen in Afghanistan, and the case did not address what level of due process protection would be required if the government were to capture a combatant within the United States.  However, in Quirin, the Nazi saboteurs were captured within the United States, and the Supreme Court upheld their detention and military trial (and eventual execution).  The Supreme Court might have addressed this question more squarely in Padilla, though the Bush Administration voluntarily transfered Padilla to civilian court, and put him on trial in Florida, rather than risk a negative outcome before the Supreme Court on this question.

All of this is just to emphasize that both sides need to be asking the right questions.  Citizenship and territory aren't so relevant here.  The bigger question is whether Tsarnaev is a member of an armed group with which the U.S. is engaged in an armed conflict.  If he is not, then there is simply no basis to trigger military detention (or a military tribunal).

It's Over (Alien Tort Statute litigation) (almost)

The Supreme Court has issued its Kiobel opinion, and it effectively ends the era of Alien Tort Statute litigation that began with the path-breaking Filartiga decision issued by the Second Circuit in 1980.  The ATS effectively opened the doors of the US judiciary to human rights victims who could not achieve justice elsewhere.  Now, that door is closed.

A few reactions to the Chief Justice Robert’s majority opinion, as well as Breyer’s (four-vote) concurrence.

First, there is much speculation that ATS cases will live albeit under different labels.  To a certain extent this is true.  The Torture Victim Protection Act (TVPA) explicitly applies extra-territorially, so Filartiga-type cases can proceed under the TVPA because Congress has sufficiently rebutted the presumption against territoriality that the majority applied in Kiobel.  Second, some victims might be able to file common-law tort claims in state courts for pre-existing causes of action – say wrongful death.  Although there is nothing preventing state courts from hearing these cases as long as personal jurisdiction is established (the defendant has been served process), there is still the pesky forum non conveniens doctrine that counsels against hearing claims that ought to be considered elsewhere.  This doctrine will presumably limit – although not foreclose – common law claims in state courts.

Second, Justice Roberts’ opinion has a pirate problem.  Everyone agrees that piracy falls within the classic set of Blackstonian offences that are permissible under the ATS – the Supreme Court’s own Sosa opinion made this point explicitly.  Roberts’ majority opinion does not shy away or attempt to overturn this precedent.  However, this stands in definite tension with his claim that the ATS does not apply extraterritorially.  Pirates operate on the high seas – outside the jurisdiction of the United States.  Consequently, the Roberts’ opinion would appear to contain a contradiction.

However, Roberts argues that piracy takes place outside the sovereign control of any country, which explains why it is still permissible under the ATS.  Under the Kiobel reasoning, only torts committed within the sovereign territory of other countries is usually disallowed.  Since piracy takes place outside the control of any sovereign territory, it is still fair game for the ATS.

There are two potential responses here.  The first, noted by Justice Breyer in his four-vote concurrence, is that piracy takes place on ships – and jurisdiction on ships is based on the flag that the ship is flying.  Consequently, it is incorrect to say that piracy takes place outside the sovereignty of another country.  While this is true, there is a second interesting response, already noted by Thomas Lee and other commentators, which is that the ATS might survive in other situations, like piracy, that take place outside the sovereign jurisdiction of any state.  These might include atrocities committed in so-called failed states – or terra nullius to use the more technical Latin phrase – where the sovereign control of the state has collapsed.  The idea of the failed state is underdeveloped in contemporary international law, and it has a worrisome pedigree.  John Yoo argued in one of his OLC “torture memos” that the Geneva Conventions did not apply to U.S. conduct in Afghanistan because Afghanistan was a failed state.  However, in the Kiobel context, the failed state argument might be used to the opposite effect: to establish legal regulation under the ATS.  Might the court entertain a future Kadic v. Karadzic-type case under the theory that Bosnia Herzegovina represented a failed state at the time of the Srebrenica massacre? I am doubtful, though perhaps Somalia provides a more secure example of a failed state where sovereign control is relatively absent (at least in some portions of the relevant territory).

A final point now about Justice Breyer’s concurrence.  Breyer concluded that he would have denied jurisdiction for the Kiobel plaintiffs but for different reasons. He included a handful of factors clustered around the connections the case has to U.S. national interests.  One of those factors for Breyer was that the corporation in question, although it had a U.S. office, did not have significant contacts with the United States, and second, the corporation was only accused of complicity (aiding and abetting) – as opposed to liability as a principal perpetrator.  

This last element is very striking and Breyer spent no time defending it, nor providing a citation to support it.  I say this is striking because, at least in the criminal law, it is a hallmark of American legal thought that accomplices are just as guilty as principal perpetrators (and subject to the same level of punishment).  Indeed, the federal criminal code provides for this explicitly.  To civil law countries that follow a Germanic model of criminal law, this American approach is absurd, because these other countries classify accomplices as embodying a lower form of liability subject to lesser penalties.  No such assumption follows in American criminal law, and therefore it is a bit odd to hear Breyer claim, without further support, that corporate aiding and abetting is somehow less serious than a corporation’s perpetration of atrocities as a principal.  Although I might agree with this as a normative matter (and in fact have argued this point in law review articles about international criminal law), I find it strange as a description of current American jurisprudence.  

Where to Find Liberal Principles of Criminal Law

Cross Posted at Opinio Juris here.  

I agree with almost everything in Darryl Robinson’s plea for a cosmopolitan liberal approach to international criminal justice.  Robinson’s article sketches out the development of ICL scholarship, noting the beginnings of the field, followed by the liberal critique of early ICL development, and then the counter-critique of the liberal critique that emphasized the need for sui generis theories to deal with the unique nature of international atrocities.  The story is convincing and tightly explained.  Although it might be difficult to identify particular scholars with just one of these schools of thought, it is certainly possible to identify particular arguments as fitting into one of these moments in the dialectic of ICL.

I do, however, want to point out an important trend in the development of the criminal law that cuts across the dialectical story emphasized by Robinson.  This won’t suggest that Robinson has it wrong – far from it – though I think it does complicate the picture somewhat.

According to Robinson, the liberal critique of ICL harnesses general principles of criminal law found in domestic systems – say the principles of legality and culpability – and uses them to evaluate the early doctrines of ICL.  The outcome of this analysis is that the ICL doctrines (such as JCE) are often found wanting.

I think it would be a mistake if this left the impression among some observers that these deeper principles of criminal law are so embedded in domestic criminal law that domestic systems get them right, while the international law system runs the risk of ignoring them.  True, I might have said something along these lines in Reclaiming Fundamental Principles of Criminal Law in the Darfur Case, co-authored with George Fletcher back in 2005.  However, one should not overstate the point.  We are talking about deeper principles of criminal law – principles that ought to be deep and abstract enough to apply across all contexts, whether domestic or international.

It’s not as if domestic penal systems are immune from the liberal critique.  Indeed, if one were to compare the domestic U.S. system against the current ICL system, I’m not sure which one would come up on top.  Certainly, it would be important to note that many jurisdictions in the U.S. retain Pinkerton liability (similar to JCE III liability for co-conspirator acts that fall outside the scope of the criminal plan), the felony-murder rule, and various doctrines of transferred intent.  All of these doctrines function to inflate the culpability of defendants who demonstrate culpable mental states that are best described as recklessness, though legal fictions in the doctrine are then applied to inflate their culpability to the level of intent (either knowledge or purpose).  From the standpoint of the principle of culpability, most or all of these legal doctrines are subject to withering criticism.  And despite this criticism, many of these doctrines hang on in the domestic case law.

True, the Model Penal Code (MPC) rejected many of these doctrines, though the MPC represented an idealized picture of the criminal law, produced by scholars with the hope of reformulating actual codes in the 50 states.  In many cases the MPC reforms were successful; in many cases not.  There is still a wide gulf between the MPC and the criminal law on the ground in many jurisdictions.

The same point can be made with regard to many other domestic legal systems.  In recent writing (e.g. here) I have expressed increasing anxiety over the use of dolus eventualis as an appropriate mental state at the international tribunals.  This mental state, often described as similar to recklessness, is used in the application of IHL rules on targeting, and also in the details of the Control Theory of Perpetration – a result that ironically brings the Control Theory right back to the expansive nature of JCE III and liability for a co-venturer’s acts that were never agreed to.  Now here’s my point: this expansive use of dolus eventualis stems from its similarly expansive use in many civil law criminal legal systems, which in my view could be criticized, from a liberal perspective, for their overreliance on dolus eventualis.

My point here is that domestic criminal law, even in the liberal critique, should not be understood as some idealized, Platonic system that is perfectly attuned to the demands of culpability and legality.  Indeed, in many cases it is not.

How then do liberals criticize ICL?  They don’t do it from the perspective of domestic criminal law per se, but rather from the perspective of criminal law theory – a philosophical inquiry about what the criminal law ought to be.  The point of many of those early articles on ICL that Robinson mentions (including some of my own), wasn’t to praise domestic criminal law and chide the international doctrine as some lesser deviant.  Rather, the point was to urge the importation of criminal law theory into ICL, as it already exists in domestic criminal law scholarship, so that criminal law theory could have an equal seat at the table alongside public international law.  Over the course of the last 10 years, I think great progress has been made in this regard – and some of Robinson’s recent articles (e.g. on command responsibility) are excellent examples of this salutary development.

Of course, Robinson hasn’t suggested otherwise – so this brief reflection is not a criticism of his paper.  Rather, his excellent article has simply inspired me to take a step back and reflect on the nature and scope of the liberal critique, on where it came from and where it is going.  And I want to emphasize that no system of criminal law is, or ought to be, immune from the critical gaze of the liberal critique.

CIA Personnel, Drones, and the Privilege of Combatancy

Recent news reports have suggested that the White House is posed to transfer all responsibility over the country's drone program from the CIA to the Department of Defense.  As it stands now, the CIA currently operates a parallel drone program in addition to the drones operated by the Pentagon's Joint Special Operations Command (JSOC).  Critics have long complained that the CIA's involvement in drone strikes has produced a transparency-deficit in all respects, including target selection and criteria as well as collateral damage.  For those critics, the possibility of transferring all authority to the Pentagon would be welcome news.  In the past I have shared in this belief.  However, it should be noted that JSOC is hardly a paragon of transparency -- its own operations are shrouded in secrecy as well (although perhaps somewhat less so than the CIA).

Besides the transparency issue, there are other legal reasons for welcoming the transfer of authority from the CIA to JSOC.  As several commentators have noted, CIA operatives may not be entitled to the privilege of combatancy by virtue of the fact that they are not in uniform -- one of the key criteria under the Geneva Conventions for the privilege of combatancy.  (The other requirements are wearing a distinctive sign recognizable at a distance, carrying arms openly, and participation in an organization that follows the laws and customs fo war). The privilege of combatancy is what allows regular soldiers to kill other soldiers during armed conflict.  In regular peace-time operations, such killings are illegal unless justified by self-defense, whereas during armed conflict such killings are perfectly legal, as long as they are performed by individuals who hold the privilege of combatancy.  Consequently, there are good reasons to applaud the Administration's move to get the CIA out of the drone business.

But several commentators have wondered whether the administration's proposal will result in any significant change on the ground.  Specifically, they note that there is already a mix of CIA and DoD personnel involved in the operation of the drones "owned" by the CIA.  Apparently the actual "pilots" of these drones are Air Force personnel and the CIA personnel simply perform targeting and other procedures related to when to fire the missiles.

All of this leads to two crucial questions that are under-studied in this entire area of the law.  First, how should we evaluate the privilege of combatancy in situations where the weapon system is deployed with a mix of CIA and non-CIA employees?  Which individuals are "carrying their arms openly" when the arms in question are being jointly carried by multiple individuals, some of which qualify for the privilege and others do not?

Incidentally, these "mixed" operations are of increasing importance and not just in the drone context.  The Navy SEALS raid in Pakistan against Osama Bin Laden was a covert "Title 50" operation under the authority of the CIA director, though the troops were actually military personnel "on loan" to the CIA.  These mixed operations will become even more frequent as the United States wishes to use force in areas of the world where it will disclaim responsibility for its actions.

Second, it is unclear to me if the privilege of combatancy can ever be consistent with covert action, regardless of which weapon system is used.  If the action is not acknowledged by the relevant government, in what sense do our forces "carrying their arms openly"?  Indeed, the whole point of covert action is that action is not conducted in an open manner.  Under this argument, it would seem that covert CIA action is never entitled to the privilege of combatancy, regardless of whether the actual soldiers are CIA personnel or DoD uniformed employees reporting to the CIA director.  I am not sure if this is the correct question or not, though I suspect that military personnel have not given this issue sufficient thought.

I continue to think and research this issue and welcome comments and insights from readers.

Response to Goodman

As promised, here is a link to my full response to Ryan Goodman's provocative new essay on the capture and kill requirements under the laws of war.  In particular, I make two points regarding Goodman's theory that contribute to the stimulating conversation at Lawfare that has been generated by his essay.

First, it is unclear whether one can use specific prohibitions that restrict the use of force as indirect evidence for a more general principle regarding restrictions on the use of force, or necessity, that is then wider than the specific prohibitions.  Second, the history of the concept of necessity in the laws of war, going back to the Lieber Code and its basic structure, appears to cut against Goodman's interesting argument.

Here is the official abstract:

The Capture-Kill Debate: Lost Legislative History or Revisionist History?

In a recent essay, Ryan Goodman offers a vigorous defense of the duty to capture under the law of war and concludes that attacking soldiers have a duty to use the least-restrictive means of accomplishing their objective. In particular, Goodman contends in his new intervention that the scholarly debate has relied on an impoverished reading of the legislative history of the key international protocols drafted in 1973 and 1974. Having un-earthed a wealth of documents regarding those negotiations, he argues that: (i) the law of war already severely restricts the use of force in various contexts by virtue of specific prohibitions on methods of warfare; (ii) the law of war already prohibits killing enemy combatants who are rendered hors de combat; and (iii) the drafters of the Additional Protocols supported a “least-restrictive-means” interpretation of the concept of necessity, meaning that killing is only lawful when soldiers have no other way of neutralizing the enemy (e.g. capture is not feasible).

For reasons that I articulate in the present commentary, I believe that none of these arguments provide definitive support for a duty to capture under the laws of war. First, with regard to Goodman's first two arguments, one cannot move from a list of specific jus in bello prohibitions to a generalized principle regarding the nature military necessity that then swallows and expands the specific rules. Second, the arguments ignore the Lieber Code's definition of military necessity as "all direct destruction of life or limb of armed enemies" and "those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war." Although the law of war has advanced considerably since Lieber, its general structure remains relatively unchanged. Third, the drafters of the Additional Protocol did not codify the least-restrictive means test; its provision on unnecessary suffering cannot be read to include it since unnecessary suffering and unnecessary killing are conceptually distinct.

The full essay can be downloaded here.