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Friday, March 30, 2012

Standing Your Ground in Florida

So usually I don’t write about domestic legal issues here, but the legal doctrine of self-defense is one that, ever since I co-wrote DefendingHumanity with Fletcher, I have always felt is connected with comparative and international issues.

I have been struck by the amount of incorrect information and poor legal analysis that has been floating around in the popular media about the Florida law.  In particular, much of the Florida law appears not to apply to the situation involving Trayvon Martin.

For example, the first section of the Florida Statute provides a statutory presumption of a “reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another.” 

A reasonable fear of imminent peril is one of the requirements for exercising self-defense, but let’s see if the requirements for the statutory presumption are met.  The attacker has to be “in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle.”  This is the so-called Castle Doctrine, and it simply does not apply in this case.  From every report in the media, it appears that the confrontation with Martin happened on a public street.  Unless law enforcement has different facts that have not been disclosed at this point, I fail to see how the Castle Doctrine is at all relevant to this case.

On to the rest of the Stand Your Ground law.  The next section deals with the so-called Duty to Retreat:

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Now, it is certainly true that in the Florida case there was no duty for Zimmerman to retreat, unless it could be argued that Zimmerman had no right to be on the street chasing down Trayvon Martin.  Query: if a court were to determine that Zimmerman’s chasing of Trayvon Martin was motivated by racism, would that impact our determination of whether Zimmerman had a right to be there?  Putting that question to the side, though, it appears as if the Florida law does remove the common law duty to retreat.

But I want to concentrate on the second half of the provision, which says that deadly force can only be used if “he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself…”  Jefffrey Tobin concludes on CNN that the Stand Your Ground law codifies a subjective viewpoint, i.e. it authorizes force when viewed through the eyes of the defender.  I think that is a highly simplistic analysis.

It certainly is the case that the defender has to have a sincere belief that the defensive force is necessary.  True, that’s clearly subjectivist, but then the law adds a requirement of reasonableness.  The question is whether to understand reasonableness subjectively or as an objective constraint on the subjective standard, i.e. that the belief has to be sincerely held by the defender but also objectively reasonable.

One might argue that the syntax of the sentence suggests a purely subjective approach, without any objective overlay, based on the phrase “he reasonably believes.”  This language is almost identical to the language in the New York Penal Code, and the New York State Court of Appeals concluded in the famous Goetz case that the phrase “he reasonably believes” codifies a standard of objective reasonableness (though qualified by individual factors of the defendant’s situation). Here is the Court rejecting the fully subjective standard:

To completely exonerate such an individual, no matter how aberrational or bizarre his thought patterns, would allow citizens to set their own standards for the permissible use of force. It would also allow a legally competent defendant suffering from delusions to kill or perform acts of violence with impunity, contrary to fundamental principles of justice and criminal law.

The similarities between this case and Goetz are striking. Like Goetz, the question becomes how we consider Zimmerman’s attitudes about race, if a future jury concludes that Zimmerman’s (mis)assessment of the situation was influenced by preconceived beliefs and unwarranted assumptions about race.  Under a standard like the one applied in Goetz, it would be hard to see how this would qualify as objectively reasonable, even after taking into account the particularities of the defendant’s situation and background.

Saturday, March 24, 2012

Modes of Liability - Endings and Beginnings

For those of you interested in international criminal law, I direct your attention to an online symposium at Opinio Juris about the future of modes of liability.  The debate centers around James Stewart’s new article, “The End of Modes of Liability,” published in the most recent issue of the Leiden Journal of International Law
Stewart argues in his essay that all modes of liability should be replaced with a unitary theory that dispenses with the distinction between principals and accessories in favor of a unitary scheme based on the defendant’s causal contribution to the crime.  Stewart argues that this unitary theory will correct the often overlooked excesses of complicity as a mode of liability.

Critical responses are provided by Thomas Weigend, Darryl Robinson, and myself, with responses from Stewart here, here, and here
My response in particular focuses on the normative basis for maintaining a distinction between principals and accessories, and the inadequacy of punting these determinations of relative culpability to the sentencing decision.

The issue of modes of liability is of particular concern to me, and I have recently posted a draft essay on indirect co-perpetration.  Although indirect co-perpetration is relatively unknown to criminal lawyers in the United States, it is of immense importance to ICL as I predict it will become the dominant mode of liability used at the ICC.  Comments and suggestions are welcome.

Wednesday, March 21, 2012

Does Due Process entail Legal Process?

I promised to blog again about Eric Holder’s speech on targeted killings, and in particular the distinction that he drew between legal process and due process.  Holder concluded that American citizens targeted by the U.S. drone program have a constitutional right to due process, but that due process need not take the form of legal process.

In other words, citizen-targets do not have a constitutional right to contest their inclusion on the targeting list before an Article III judge, or even some other judicial process.

So what due process remains after one takes legal process off the table?  For Holder, it means an executive branch-only review of military targeting that ensures that American citizens are only targeted under strict criteria, including that the citizen poses an imminent threat to the United States.  As I have already argued, Holder’s understanding of the concept of imminence is strained, and more closely tracks the concept of “immediate necessity.”  The Administration believes that a drone attack is justified if it represents the last best chance to stop a terrorist, even if the terrorist attack is well into the future.

But back to the issue of due process.  If the due process is not judicial, i.e. it is executive-only, does that really count as due process?

Part of the problem here is that although the Supreme Court has pronounced on what due process requires in all sorts of situations, there are precious few precedents regarding due process in military matters.

One of the few is Hamdi, which held that an American-citizen belligerent captured on the battlefield has a due process right to contest his decision before a neutral decision-maker.  Although that didn’t necessarily entail an Article III court, it did require a legal process, i.e. some form of tribunal that offered an adversarial proceeding. In contrast, the type of review described by Holder is not adversarial at all; it’s essentially a form of internal executive deliberation without any participation from the citizen-target.

Of course, Hamdi is not a targeting case, which is precisely why it is difficult to analogize its holding from the detention context to the targeting context.  Due process regarding detention is necessarily ex post, while due process regarding targeting, if it is to be meaningful at all, must be ex ante. (It’s meaningless to contest a targeting decision after the target is dead.)  And that basically destroys the entire concept of targeting as it is understood by military commanders.  So we are left with a complete lack of domestic judicial interpretation about what due process requires in the targeting context.

The other major problem with analogizing from Hamdi is that the Supreme Court’s discussion of the constitutional right was heavily informed by the due process required by the international law of armed conflict, in particular the right under the Geneva Convention to contest one’s status as an enemy belligerent.  That’s a well-codified principle under international law, so the Supreme Court’s constitutional analysis closely tracked what international law already says about the issue.  In that sense, it’s unclear how much – if any – of Hamdi’s substance actually hinges on citizenship, since the right as it exists under the international law of armed conflict applies to citizens and non-citizens alike.  It’s a right that’s afforded to the enemy pure and simple.

But there is no analogous norm regarding due process and targeting under the international law of armed conflict.  So the constitutional analysis can’t simply curl back on the international law analysis in the same way that it did in Hamdi.  That option isn’t available.

Of course, some scholars will object that the due process right under international law stems from international human rights law, not the law of armed conflict, and that the targeted killing of al-Awlaki violated his human rights.  I have written before about the co-applicability of international human rights law and the law of armed conflict to the same situation, and I won’t rehash my arguments here.  But suffice it to say that, even if this argument has merit, then again citizenship doesn’t really matter.  If the constitutional law analysis is going to curl back on a due process norm that stems from international human rights law, then it too applies universally and does not really depend on Awlaki’s status as an American citizen.

One final note.  Although the U.S. Supreme Court was comfortable relying on the international law of armed conflict to flush out the constitutional analysis in Hamdi, I wonder if today’s court would be as willing to rely on international human rights law to flush out the constitutional analysis regarding targeting.  I suspect not.

Thursday, March 15, 2012

Lubanga and the Control Theory

Cross-posted at Opinio Juris.

So the ICC has released its first verdict and it only took 10 years.  Most media reports are concentrating on the substantive crime – the use of child soldiers – because that issue has suddenly gained popular currency with the Kony2012 viral video.

But the Lubanga decision is also notable for the open disagreement between the judges regarding the mode of liability in the case.  Although all three judges agreed that Lubanga was a co-perpetrator, Judges Benito and Blattmann adopted Roxin’s Control Theory of Perpetration, while Judge Fulford rejected the Control Theory, becoming one of the few ICC jurists to express serious concerns about the doctrine.

To recap for those readers who aren’t as obsessed with modes of liability as I am: The Control Theory was developed by the German criminal law scholar Claus Roxin in the 1960s, and was discussed with approval by George Fletcher in Rethinking Criminal Law.  It was influential in German criminal law circles but largely ignored in the United States, despite Fletcher’s extensive discussion of it in Rethinking.  Roxin himself created an organizational version of the doctrine after the Eichmann trial, thus demonstrating the theory’s application to mass atrocity.  The first significant judicial application of the theory came during the German Border Guard Cases after German reunification.

In its earliest days, the ICC Pre-Trial Chamber decided against applying the ICTY doctrine of Joint Criminal Enterprise that was closely identified with Cassese, and instead adopted Roxin’s Control Theory of Perpetration.  It is therefore not surprising that the Lubanga Trial Chamber confirmed this approach, though the dispute between the judges on this point demonstrates that the Control Theory still has its detractors.

Specifically, Judge Fulford complained about the hypothetical and counterfactual reasoning required by the control theory – a point that myself, Thomas Weigend, and plenty of others have made before.  Because the control theory requires a finding that the defendant performed an essential contribution, one has to decide if the crime would have still occurred in the absence of the defendant’s contribution – hence the notion of “essential.” This is, necessarily, a counterfactual question, and the theory also gives too little guidance about how different the counterfactual crime must be before we declare it to be a different crime altogether, and therefore whether the defendant’s contribution was essential or not.  These questions clearly weighed on Judge Fulford, leading him to conclude in his concurring opinion that the Control Theory created insurmountable problems for structuring ICC cases.

However, Judge Fulford also had another objection to the Control Theory – one that I cannot subscribe to.  Fulford complained that the control theory was being transplanted from another legal culture – Germany – where the distinction between principals and accomplices is of central concern, in particular because the statutory sentencing ranges for principals and accomplices differ significantly. Consequently, it really matters in Germany if the defendant is convicted as a principal or an accomplice.  At the ICC, though, there are no statutory sentencing guidelines, so the distinction between principals and accomplices is of no practical consequence.  Or so says Judge Fulford.

I cannot subscribe to this reasoning.  If there is a defect here, it is a defect in the ICC scheme on sentencing.  The Rome Statute ought to have a more rigorous methodology for dealing with sentencing, but it does not.  But even if that never changes, and judges retain full discretion to decide sentencing based on the individual circumstances of the case, the distinction between principals and accomplices still has enormous value.  It’s part of the concept of fair labeling – i.e. that the law, and in this case the substantive doctrine of criminal law, should capture a defendant’s true and accurate culpability by applying the correct legal categories to him.  A system that eviscerates the distinction between principals and accomplices fails to live up to the principal of fair labeling.  I won’t belabor the point here, since it is the subject of a forthcoming exchange between myself and James Stewart in an upcoming OJ symposium sponsored by the Leiden Journal of International Law.

One final point on precedent, a subject that I have started discussing recently at LieberCode.  Although Judge Fulford rejected the control theory, he refused to apply his “plain reading” version of co-perpetration in this case.  His rationale for this refusal was that to do so would be prejudicial to Lubanga, since Lubanga structured his defense around the Control Theory as it was expounded by the Pre-Trial Chamber.  To do otherwise would violate the fair trial rights of the defendant.

This argument strikes me as curious indeed.  If Pre-Trial Chambers are going to give detailed exegesis on matters of law, which then apparently become the “law of the case” even if the Trial Chamber disagrees with them, then the law becomes static with more limited opportunities for revision.  Of course, Fulford’s argument is presumably asymmetrical, in the sense that he is fine with changing the law if it benefits the defendant, but not if it prejudices him.  Still, is Fulford suggesting that the same rationale would bind the Appeals Chamber in this case?  Under this rationale, the ICTY Appeals Chamber should never have pronounced the JCE doctrine during the Tadic appeal.

Wednesday, March 7, 2012

It’s ‘Immediately Necessary’ for Eric Holder to Clarify ‘Imminence’

Eric Holder’s speech was designed to lay out the administration’s legal argument for targeted killings, in particular those carried out against U.S. citizens.  If that was the goal, I think his speech did it reasonably well.  I think some of the criticism is overwrought; a speech is neither a law review article nor a judicial opinion.  It’s short on details and legal citations but the basic ideas are there.  It’s more like a law school exam answer.  Though I suppose Holder and the DOJ had months to get this speech right; I only give my students three hours.

Here are the issues that struck me:

First, Holder emphasized imminence quite a bit but didn’t explain the source of the imminence requirement.  He introduced the requirement by saying that “the Constitution empowers the President to protect the nation from any imminent threat of violent attack” and later “lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not unlawful – and therefore would not violate the Executive Order banning assassination or criminal statutes.”

This suggests that Holder was not talking about the imminence requirement for (jus ad bellum) use of force under international law, but rather was talking about domestic U.S. law.  The first reference appears to be a gloss on the Article II commander-in-chief power, while the second reference appears to refer to defense of others under domestic criminal law.  

But the big question is whether the imminence requirement applies to all TKs or only to those involving U.S. citizens.  I would assume the latter, since that’s mostly what the speech is about, but I have to admit that the scope of the analysis is not very clear.  Also, there is no jus in bello imminence requirement under standard Law of War targeting principles.

Second, Holder’s version of the imminence requirement isn’t really imminence at all.  Holder says that the U.S. analysis takes into account “the relevant window of opportunity to act” – i.e. that the government will not wait until it is too late to stop the threat from being realized. 

But this is best described as “immediate necessity,” not imminence.  Here’s the difference.  Imminence describes the temporal location of the threatened attack – it is about to happen soon.  In contrast, “immediate necessity” is about the temporal location of the defensive force – we have to do it now because this is our last best chance to stop the attack. 

In most cases, these two analyses will be describing the same time period.  But not always.  It’s at least possible to envision a future, non-imminent attack but the only way to stop it is to act now.  That’s one reason why the Model Penal Code dropped the imminence requirement for self-defense and replaced it with the requirement that the defensive force be “immediately necessary” to avert the threat.  However, this is a contested move in criminal law theory, and it is even more contested in international law, as George Fletcher and I discussed in Defending Humanity.

Third, even assuming that Holder did mean imminence (as opposed to immediate necessity), his version of imminence is rather expansive.  It includes not just attacks that are about to be launched but also attacks that are in the planning stages.  In fact, the attack-planning does not have to be that far along either, because “the Constitution does not require the President to delay action until some theoretical end-stage of planning – when the precise time, place, and manner of an attack become clear.”  So even the beginning of the planning stage could constitute an imminent attack according to Holder.

So what would constitute a non-imminent attack?  I’m not exactly sure.  Maybe a hypothetical attack? 

The other major issue is due process vs. legal process, but I’ll have to leave that for Part II of my analysis.

Tuesday, March 6, 2012

Kiobel Do-over: Will the Torturer Remain Hostis Humani Generis?

Yesterday the Supreme Court issued a one-page order that directed the Kiobel case returned to the calendar for re-argument next term and also ordered the parties to brief a new question: whether the Alien Tort Statute permits an alien to sue in U.S. federal court for crimes committed in the territory of another sovereign.

When the Kiobel case was originally argued last week, the lawyers thought they were arguing about whether corporations can be responsible, under international law, for human rights abuses, or whether the corporate liability question is governed by U.S. domestic law even in ATS cases. 

As it happens, though, the justices were more intent on asking about the exterritorial application of the ATS to torts committed outside of the United States.  The lawyers were taken a bit by surprise, and the issue was not explicitly briefed by the parties.  Everyone assumed that the extraterritorial reach of the ATS was an underlying assumption of the debate.  Most litigants, ever since Filartiga, have assumed that the ATS had extraterritorial reach – and that was the entire point of ATS litigation.

The briefing and second-round oral argument will presumably center around the presumption against extra-territorial application of U.S. statutes, something that Anthony Colangelo has recently written about.  (Colangelo concludes that the relevant presumption as to the ATS ought to be Charming Betsy, not the Morrison presumption against extra-territoriality).  Although it might seem like the Court is backtracking a bit, the only Supreme Court case directly on point is Sosa v. Alvarez-Machain, which had a strong connection to the U.S. since the kidnapping scheme, although executed in Mexico, was formulated and completed here.

And as others have already noted, the language of the re-argument order is interesting.  The court specifically wants the parties to address the applicability of the ATS for torts committed in other countries – not torts committed outside the United States.  The difference is subtle, but piracy is committed outside the U.S. but not within another country; it happens in international waters.  At least some members of the Court apparently want to concede that the ATS covers piracy outside of the U.S., but not torts committed within another sovereign jurisdiction.

Human rights litigators are worried that this case is turning ought far worse than they ever imagined.  The went into Kiobel worried that corporate aiding and abetting cases – the best cases – would be curtailed once corporations were deemed immune from suit under the ATS.  But if the rehearing order is any indication, what’s at stake now is the entirely of Filartiga-style ATS litigation. 

If the ATS does not have extraterritorial reach, one wonders whether the torturer can still be, in the words of Judge Kaufman, the hostis humani generis – the enemy of all mankind.  I guess they could still be an enemy -- just not a litigant here.

Monday, March 5, 2012

Holder's Speech on Targeted Killings

Here is Attorney-General Eric Holder's much-anticipated speech on targeted killings, delivered this afternoon.  I will have substantive analysis either later today or tomorrow.  In the meantime, here is the actual text of the entire speech:


Attorney General Eric Holder Speaks at Northwestern Law School
Chicago ~ Monday, March 5, 2012 

As prepared for delivery

Thank you, Dean [Daniel] Rodriguez, for your kind words, and for the outstanding leadership that you provide – not only for this academic campus, but also for our nation’s legal community.   It is a privilege to be with you today – and to be among the distinguished faculty members, staff, alumni, and students who make Northwestern such an extraordinary place.

For more than 150 years, this law school has served as a training ground for future leaders; as a forum for critical, thoughtful debate; and as a meeting place to consider issues of national concern and global consequence.   This afternoon, I am honored to be part of this tradition.   And I’m grateful for the opportunity to join with you in discussing a defining issue of our time – and a most critical responsibility that we share: how we will stay true to America’s founding – and enduring – promises of security, justice and liberty.

Since this country’s earliest days, the American people have risen to this challenge – and all that it demands.   But, as we have seen – and as President John F. Kennedy may have described best – “In the long history of the world, only a few generations have been granted the role of defending freedom in its hour of maximum danger.”

Half a century has passed since those words were spoken, but our nation today confronts grave national security threats that demand our constant attention and steadfast commitment.   It is clear that, once again, we have reached an “hour of danger.” 

We are a nation at war.  And, in this war, we face a nimble and determined enemy that cannot be underestimated.

Like President Obama – and my fellow members of his national security team – I begin each day with a briefing on the latest and most urgent threats made against us in the preceding 24 hours.   And, like scores of attorneys and agents at the Justice Department, I go to sleep each night thinking of how best to keep our people safe.

I know that – more than a decade after the September 11th attacks; and despite our recent national security successes, including the operation that brought to justice Osama bin Laden last year – there are people currently plotting to murder Americans, who reside in distant countries as well as within our own borders.   Disrupting and preventing these plots – and using every available and appropriate tool to keep the American people safe – has been, and will remain, this Administration’s top priority.

But just as surely as we are a nation at war, we also are a nation of laws and values.  Even when under attack, our actions must always be grounded on the bedrock of the Constitution – and must always be consistent with statutes, court precedent, the rule of law and our founding ideals.   Not only is this the right thing to do – history has shown that it is also the most effective approach we can take in combating those who seek to do us harm.

This is not just my view.   My judgment is shared by senior national security officials across the government.   As the President reminded us in 2009, at the National Archives where our founding documents are housed, “[w]e uphold our most cherished values not only because doing so is right, but because it strengthens our country and it keeps us safe.   Time and again, our values have been our best national security asset.”   Our history proves this.   We do not have to choose between security and liberty – and we will not.

Today, I want to tell you about the collaboration across the government that defines and distinguishes this Administration’s national security efforts.   I also want to discuss some of the legal principles that guide – and strengthen – this work, as well as the special role of the Department of Justice in protecting the American people and upholding the Constitution.

Before 9/11, today’s level of interagency cooperation was not commonplace.   In many ways, government lacked the infrastructure – as well as the imperative – to share national security information quickly and effectively.   Domestic law enforcement and foreign intelligence operated in largely independent spheres.   But those who attacked us on September 11th chose both military and civilian targets.   They crossed borders and jurisdictional lines.   And it immediately became clear that no single agency could address these threats, because no single agency has all of the necessary tools.

To counter this enemy aggressively and intelligently, the government had to draw on all of its resources – and radically update its operations.   As a result, today, government agencies are better postured to work together to address a range of emerging national security threats.   Now, the lawyers, agents and analysts at the Department of Justice work closely with our colleagues across the national security community to detect and disrupt terrorist plots, to prosecute suspected terrorists, and to identify and implement the legal tools necessary to keep the American people safe.   Unfortunately, the fact and extent of this cooperation are often overlooked in the public debate – but it’s something that this Administration, and the previous one, can be proud of.

As part of this coordinated effort, the Justice Department plays a key role in conducting oversight to ensure that the intelligence community’s activities remain in compliance with the law, and, together with the Foreign Intelligence Surveillance Court, in authorizing surveillance to investigate suspected terrorists.   We must – and will continue to – use the intelligence-gathering capabilities that Congress has provided to collect information that can save and protect American lives.   At the same time, these tools must be subject to appropriate checks and balances – including oversight by Congress and the courts, as well as within the Executive Branch – to protect the privacy and civil rights of innocent individuals.   This Administration is committed to making sure that our surveillance programs appropriately reflect all of these interests.

Let me give you an example.   Under section 702 of the Foreign Intelligence Surveillance Act, the Attorney General and the Director of National Intelligence may authorize annually, with the approval of the Foreign Intelligence Surveillance Court, collection directed at identified categories of foreign intelligence targets, without the need for a court order for each individual subject.   This ensures that the government has the flexibility and agility it needs to identify and to respond to terrorist and other foreign threats to our security.   But the government may not use this authority intentionally to target a U.S. person, here or abroad, or anyone known to be in the United States.

The law requires special procedures, reviewed and approved by the Foreign Intelligence Surveillance Court, to make sure that these restrictions are followed, and to protect the privacy of any U.S. persons whose nonpublic information may be incidentally acquired through this program.    The Department of Justice and the Office of the Director of National Intelligence conduct extensive oversight reviews of section 702 activities at least once every sixty days, and we report to Congress on implementation and compliance twice a year.   This law therefore establishes a comprehensive regime of oversight by all three branches of government.   Reauthorizing this authority before it expires at the end of this year is the top legislative priority of the Intelligence Community.

But surveillance is only the first of many complex issues we must navigate.   Once a suspected terrorist is captured, a decision must be made as to how to proceed with that individual in order to identify the disposition that best serves the interests of the American people and the security of this nation.

Much has been made of the distinction between our federal civilian courts and revised military commissions.   The reality is that both incorporate fundamental due process and other protections that are essential to the effective administration of justice – and we should not deprive ourselves of any tool in our fight against al Qaeda.

Our criminal justice system is renowned not only for its fair process; it is respected for its results.   We are not the first Administration to rely on federal courts to prosecute terrorists, nor will we be the last.   Although far too many choose to ignore this fact, the previous Administration consistently relied on criminal prosecutions in federal court to bring terrorists to justice.   John Walker Lindh, attempted shoe bomber Richard Reid, and 9/11 conspirator Zacarias Moussaoui were among the hundreds of defendants convicted of terrorism-related offenses – without political controversy – during the last administration.

Over the past three years, we’ve built a remarkable record of success in terror prosecutions.   For example, in October, we secured a conviction against Umar Farouk Abdulmutallab for his role in the attempted bombing of an airplane traveling from Amsterdam to Detroit on Christmas Day 2009.   He was sentenced last month to life in prison without the possibility of parole.   While in custody, he provided significant intelligence during debriefing sessions with the FBI.   He described in detail how he became inspired to carry out an act of jihad, and how he traveled to Yemen and made contact with Anwar al-Aulaqi, a U.S. citizen and a leader of al Qaeda in the Arabian Peninsula.   Abdulmutallab also detailed the training he received, as well as Aulaqi’s specific instructions to wait until the airplane was over the United States before detonating his bomb.

In addition to Abdulmutallab, Faizal Shahzad, the attempted Times Square bomber, Ahmed Ghailani, a conspirator in the 1998 U.S. embassy bombings in Kenya and Tanzania, and three individuals who plotted an attack against John F. Kennedy Airport in 2007, have also recently begun serving life sentences.   And convictions have been obtained in the cases of several homegrown extremists, as well.   For example, last year, United States citizen and North Carolina resident Daniel Boyd pleaded guilty to conspiracy to provide material support to terrorists and conspiracy to murder, kidnap, maim, and injure persons abroad; and U.S. citizen and Illinois resident Michael Finton pleaded guilty to attempted use of a weapon of mass destruction in connection with his efforts to detonate a truck bomb outside of a federal courthouse.

I could go on.   Which is why the calls that I’ve heard to ban the use of civilian courts in prosecutions of terrorism-related activity are so baffling, and ultimately are so dangerous.   These calls ignore reality.   And if heeded, they would significantly weaken – in fact, they would cripple – our ability to incapacitate and punish those who attempt to do us harm. 

Simply put, since 9/11, hundreds of individuals have been convicted of terrorism or terrorism-related offenses in Article III courts and are now serving long sentences in federal prison.   Not one has ever escaped custody.   No judicial district has suffered any kind of retaliatory attack. These are facts, not opinions.   There are not two sides to this story.   Those who claim that our federal courts are incapable of handling terrorism cases are not registering a dissenting opinion — they are simply wrong. 

But federal courts are not our only option.   Military commissions are also appropriate in proper circumstances, and we can use them as well to convict terrorists and disrupt their plots.   This Administration’s approach has been to ensure that the military commissions system is as effective as possible, in part by strengthening the procedural protections on which the commissions are based.   With the President’s leadership, and the bipartisan backing of Congress, the Military Commissions Act of 2009 was enacted into law.   And, since then, meaningful improvements have been implemented.

It’s important to note that the reformed commissions draw from the same fundamental protections of a fair trial that underlie our civilian courts.   They provide a presumption of innocence and require proof of guilt beyond a reasonable doubt.   They afford the accused the right to counsel – as well as the right to present evidence and cross-examine witnesses.   They prohibit the use of statements obtained through torture or cruel, inhuman, or degrading treatment.   And they secure the right to appeal to Article III judges – all the way to the United States Supreme Court.   In addition, like our federal civilian courts, reformed commissions allow for the protection of sensitive sources and methods of intelligence gathering, and for the safety and security of participants.

A key difference is that, in military commissions, evidentiary rules reflect the realities of the battlefield and of conducting investigations in a war zone.   For example, statements may be admissible even in the absence of Miranda warnings, because we cannot expect military personnel to administer warnings to an enemy captured in battle.   But instead, a military judge must make other findings – for instance, that the statement is reliable and that it was made voluntarily.

I have faith in the framework and promise of our military commissions, which is why I’ve sent several cases to the reformed commissions for prosecution.  There is, quite simply, no inherent contradiction between using military commissions in appropriate cases while still prosecuting other terrorists in civilian courts.   Without question, there are differences between these systems that must be – and will continue to be – weighed carefully.   Such decisions about how to prosecute suspected terrorists are core Executive Branch functions.   In each case, prosecutors and counterterrorism professionals across the government conduct an intensive review of case-specific facts designed to determine which avenue of prosecution to pursue.

Several practical considerations affect the choice of forum.

First of all, the commissions only have jurisdiction to prosecute individuals who are a part of al Qaeda, have engaged in hostilities against the United States or its coalition partners, or who have purposefully and materially supported such hostilities.   This means that there may be members of certain terrorist groups who fall outside the jurisdiction of military commissions because, for example, they lack ties to al Qaeda and their conduct does not otherwise make them subject to prosecution in this forum.   Additionally, by statute, military commissions cannot be used to try U.S. citizens.

Second, our civilian courts cover a much broader set of offenses than the military commissions, which can only prosecute specified offenses, including violations of the laws of war and other offenses traditionally triable by military commission.  This means federal prosecutors have a wider range of tools that can be used to incapacitate suspected terrorists.   Those charges, and the sentences they carry upon successful conviction, can provide important incentives to reach plea agreements and convince defendants to cooperate with federal authorities.

Third, there is the issue of international cooperation.   A number of countries have indicated that they will not cooperate with the United States in certain counterterrorism efforts — for instance, in providing evidence or extraditing suspects – if we intend to use that cooperation in pursuit of a military commission prosecution.   Although the use of military commissions in the United States can be traced back to the early days of our nation, in their present form they are less familiar to the international community than our time-tested criminal justice system and Article III courts.   However, it is my hope that, with time and experience, the reformed commissions will attain similar respect in the eyes of the world.

Where cases are selected for prosecution in military commissions, Justice Department investigators and prosecutors work closely to support our Department of Defense colleagues.   Today, the alleged mastermind of the bombing of the U.S.S. Cole is being prosecuted before a military commission.   I am proud to say that trial attorneys from the Department of Justice are working with military prosecutors on that case, as well as others.

And we will continue to reject the false idea that we must choose between federal courts and military commissions, instead of using them both.   If we were to fail to use all necessary and available tools at our disposal, we would undoubtedly fail in our fundamental duty to protect the Nation and its people.   That is simply not an outcome we can accept.

This Administration has worked in other areas as well to ensure that counterterrorism professionals have the flexibility that they need to fulfill their critical responsibilities without diverging from our laws and our values.   Last week brought the most recent step, when the President issued procedures under the National Defense Authorization Act.   This legislation, which Congress passed in December, mandated that a narrow category of al Qaeda terrorist suspects be placed in temporary military custody.

Last Tuesday, the President exercised his authority under the statute to issue procedures to make sure that military custody will not disrupt ongoing law enforcement and intelligence operations — and that an individual will be transferred from civilian to military custody only after a thorough evaluation of his or her case, based on the considered judgment of the President’s senior national security team.   As authorized by the statute, the President waived the requirements for several categories of individuals where he found that the waivers were in our national security interest.   These procedures implement not only the language of the statute but also the expressed intent of the lead sponsors of this legislation.   And they address the concerns the President expressed when he signed this bill into law at the end of last year.

Now, I realize I have gone into considerable detail about tools we use to identify suspected terrorists and to bring captured terrorists to justice.   It is preferable to capture suspected terrorists where feasible – among other reasons, so that we can gather valuable intelligence from them – but we must also recognize that there are instances where our government has the clear authority – and, I would argue, the responsibility – to defend the United States through the appropriate and lawful use of lethal force.

This principle has long been established under both U.S. and international law.   In response to the attacks perpetrated – and the continuing threat posed – by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to use all necessary and appropriate force against those groups.   Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law.   The Constitution empowers the President to protect the nation from any imminent threat of violent attack.   And international law recognizes the inherent right of national self-defense.   None of this is changed by the fact that we are not in a conventional war.

Our legal authority is not limited to the battlefields in Afghanistan.   Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan.   We are at war with a stateless enemy, prone to shifting operations from country to country.   Over the last three years alone, al Qaeda and its associates have directed several attacks – fortunately, unsuccessful – against us from countries other than Afghanistan.   Our government has both a responsibility and a right to protect this nation and its people from such threats.

This does not mean that we can use military force whenever or wherever we want.   International legal principles, including respect for another nation’s sovereignty, constrain our ability to act unilaterally.   But the use of force in foreign territory would be consistent with these international legal principles if conducted, for example, with the consent of the nation involved – or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.

Furthermore, it is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces.   This is not a novel concept.   In fact, during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto – the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway – and shot it down specifically because he was on board.   As I explained to the Senate Judiciary Committee following the operation that killed Osama bin Laden, the same rules apply today. 

Some have called such operations “assassinations.”   They are not, and the use of that loaded term is misplaced.   Assassinations are unlawful killings.   Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad.   Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted.   But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans.   Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law. 

The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.   In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process.   Where national security operations are at stake, due process takes into account the realities of combat.

Here, the interests on both sides of the scale are extraordinarily weighty.   An individual’s interest in making sure that the government does not target him erroneously could not be more significant.   Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.

Any decision to use lethal force against a United States citizen – even one intent on murdering Americans and who has become an operational leader of al-Qaeda in a foreign land – is among the gravest that government leaders can face.   The American people can be – and deserve to be – assured that actions taken in their defense are consistent with their values and their laws.   So, although I cannot discuss or confirm any particular program or operation, I believe it is important to explain these legal principles publicly.

Let me be clear:   an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

The evaluation of whether an individual presents an “imminent threat” incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States.   As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice – and to cause devastating casualties.   Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military – wearing uniforms, carrying arms openly, or massing forces in preparation for an attack.   Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning – when the precise time, place, and manner of an attack become clear.   Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed. 

Whether the capture of a U.S. citizen terrorist is feasible is a fact-specific, and potentially time-sensitive, question.   It may depend on, among other things, whether capture can be accomplished in the window of time available to prevent an attack and without undue risk to civilians or to U.S. personnel.   Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack.   In that case, our government has the clear authority to defend the United States with lethal force.

Of course, any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force.   The principle of necessity requires that the target have definite military value.   The principle of distinction requires that only lawful targets – such as combatants, civilians directly participating in hostilities, and military objectives – may be targeted intentionally.   Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage.   Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.

These principles do not forbid the use of stealth or technologically advanced weapons.   In fact, the use of advanced weapons may help to ensure that the best intelligence is available for planning and carrying out operations, and that the risk of civilian casualties can be minimized or avoided altogether.

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces.   This is simply not accurate.   “Due process” and “judicial process” are not one and the same, particularly when it comes to national security.   The Constitution guarantees due process, not judicial process.

The conduct and management of national security operations are core functions of the Executive Branch, as courts have recognized throughout our history.   Military and civilian officials must often make real-time decisions that balance the need to act, the existence of alternative options, the possibility of collateral damage, and other judgments – all of which depend on expertise and immediate access to information that only the Executive Branch may possess in real time.   The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen. 

That is not to say that the Executive Branch has – or should ever have – the ability to target any such individuals without robust oversight.   Which is why, in keeping with the law and our constitutional system of checks and balances, the Executive Branch regularly informs the appropriate members of Congress about our counterterrorism activities, including the legal framework, and would of course follow the same practice where lethal force is used against United States citizens.

Now, these circumstances are sufficient under the Constitution for the United States to use lethal force against a U.S. citizen abroad – but it is important to note that the legal requirements I have described may not apply in every situation – such as operations that take place on traditional battlefields.

The unfortunate reality is that our nation will likely continue to face terrorist threats that – at times – originate with our own citizens.   When such individuals take up arms against this country – and join al Qaeda in plotting attacks designed to kill their fellow Americans – there may be only one realistic and appropriate response.   We must take steps to stop them – in full accordance with the Constitution.   In this hour of danger, we simply cannot afford to wait until deadly plans are carried out – and we will not.

This is an indicator of our times – not a departure from our laws and our values.   For this Administration – and for this nation – our values are clear.   We must always look to them for answers when we face difficult questions, like the ones I have discussed today.   As the President reminded us at the National Archives, “our Constitution has endured through secession and civil rights, through World War and Cold War, because it provides a foundation of principles that can be applied pragmatically; it provides a compass that can help us find our way.”

Our most sacred principles and values – of security, justice and liberty for all citizens – must continue to unite us, to guide us forward, and to help us build a future that honors our founding documents and advances our ongoing – uniquely American – pursuit of a safer, more just, and more perfect union.   In the continuing effort to keep our people secure, this Administration will remain true to those values that inspired our nation’s founding and, over the course of two centuries, have made America an example of strength and a beacon of justice for all the world. This is our pledge.     

Thank you for inviting me to discuss these important issues with you today.

Saturday, March 3, 2012

Precedent and Stare Decisis at International Tribunals

I’ve been thinking a lot about how the concept of precedent functions at international tribunals.  The issue is of perennial concern in the domestic context, but gets even more complex in the international context.  Let me explain.

The US Supreme Court recently granted cert in the University of Texas affirmative action case, Fisher v. University of Texas.  This will give the court the opportunity, if it wishes, to significantly narrow or even overrule the court’s leading precedent on the issue, Grutter v.Bollinger, the affirmative action case arising out of Michigan. 

How beholden will the Court be to Grutter?  This is binding precedent for the court, although the court is free to change its own precedents.  And plenty of the court’s current members were not on the Supreme Court when it decided Grutter.  What prevents them from simply voting with their conscience and as an issue of first impression?  Well, stare decisis, or the abstract legal norm that favors stability in the law and a presumption in favor of prior precedent.  As my colleague Mike Dorf has noted, Justice Kennedy accepted Grutter as precedent in Parents Involved v. Seattle School Dist.  This suggests that, at the very least, Kennedy will not be cavalier about overruling Grutter.

The issue is a little bit more complicated at international criminal tribunals, which have a unique structure.  At the ICTY, ICTR, and ICC, for example, decisions are rendered by panels of three judges each, both at the trial and appeal level.  However, unlike the circuit-level Courts of Appeals in the US, there is no possibility of en banc review by all appeal judges.  That means that a litigant can win or lose a case depending on the views of the judges on their appeal panel, and they have no opportunity to ask the full slate of appeals judges to rehear the case.

This creates a great risk of disharmony and conflict.  One panel might rule one way on a matter of law, and a second panel might rule differently, and so one.  With no opportunity for “super-appellate” review as Gideon Boas calls it, the result would be too much uncertainty in the law.

As it happens, I don’t think there is a great level of disharmony at the ICTY and ICC.  That’s because the hypothetical second and third panels aren’t as aggressive as they might be in disagreeing with the first panel.  In other words, they treat the rulings of the first panel as having great precedential value, even though it only stems from three judges whose views might not be representative of the other appeals judges.  So the views of a small minority of judges effectively bind the actions of a larger number of judges who might not agree with them, but are reluctant or hesitant to overrule them.

This result is even more surprising given that international tribunals, like their civil law counterparts, do not formally recognize the doctrine of stare decisis, which is a common law principle.

But whether they formally recognize it or not, it seems to me that something very much like stare decisis is at work at the international tribunals, and the need for stability and reinforcement in the law is treated as a prime concern, though only implicitly, i.e. this value is rarely expressed in the judgments.  But you see it, in my view, every time an appeals chamber follows established ICTY precedent even though the judges on the panel have privately expressed some skepticism about it.

A prime example is the Stakic case at the ICTY.  The Trial Chamber went to the trouble of not applying Joint Criminal Enterprise (JCE) in its Judgment, and instead applied co-perpetration based on Roxin’sControl Theory of Perpetration (a doctrine that has now greatly influenced the ICC case law).  On appeal, an ICTY Appeals Chamber rather summarily dismissed the Trial Chamber’s attempt at judicial innovation.  Instead of dealing with the underlying merits of JCE vs. co-perpetration as a matter of law, the Appeals Chamber just basically reiterated that JCE was settled jurisprudence of the ICTY.  That sounds awfully like stare decisis to me, even if they don’t call it that.

By the way, an American colleague of mine asked me why international criminal tribunals do not allow en banc review on matters of law.  My answer?  Because the ICTY Statute and the Rome Statute do not allow it.  Yes, but why not he asked again?  I didn’t really have a good answer for him. 

Maybe one of my readers who was at Rome for the original ICC negotiations can enlighten me?