Georgetown Security Law Commentary

Guantanamo tribunal may resume

09/29/11: The LA Times reports that the Guantanamo Bay war crimes tribunal may stir back to life next month after the Pentagon filed capital charges Wednesday against a Saudi prisoner in the 2000 attack on the U.S. destroyer Cole in a Yemeni port.

Scholarship: Weapons and the Law of Armed Conflict

Weapons and the Law of Armed Conflict (Oxford Univ. Press 2009) by William Boothby (Legal Branch, Royal Air Force). This book brings together the law of armed conflict governing the use of weapons into a single volume. It interprets these rules and discusses the factors influencing future developments in weapons law. After relating the historical evolution of weapons law, the book discusses the important customary principles that are the foundation of the subject, and gives a condensed account of the law that exists on the use of weapons. Having stated the law as it is, the book then discusses the way in which this dynamic field of international law develops in the light of various influences.

Scholarship: An Exchange on Law and Israel's Gaza Campaign

"An Exchange on Law and Israel's Gaza Campaign" (ABA National Security Law Report, Feb. 2009) by David Luban (Georgetown Law) and Amos Guiora (University of Utah).  This exchange on "Operation Cast Lead" - Israel's December 2008-January 2009 campaign in the Gaza Strip-includes essays by Guiora and Luban, followed by Guiora's response to Luban's essay and Luban's response to Guiora's. Luban argues that the Gaza campaign violated both the jus ad bellum and jus in bello proportionality principles. He also argues that the Hamas civil administration were not lawful targets under Israel's own interpretation of the law of armed conflict. Guiora argues that terrorism changes the landscape of armed conflict and requires a reconfiguration of international law. Under this reconfiguration, an entire terrorist organization may properly be targeted.

Scholarship: "Counterinsurgency, the War on Terror, and the Laws of War"

"Counterinsurgency, the War on Terror, and the Laws of War" (Virginia Law Review, Forthcoming) by Ganesh Sitaraman (Harvard Law School).  This article evaluates the laws of war in light of modern counterinsurgency strategy. It shows that the laws of war are premised on a kill-capture strategic foundation that does not apply in counterinsurgency, which follows a win-the-population strategy. The result is that the laws of war are disconnected from military realities in multiple areas - from the use of non-lethal weapons to occupation law. The shift from a kill-capture to win-the-population strategy not only expands the set of topics legal scholars interested in contemporary conflict must address but also requires incorporating the strategic foundations of counterinsurgency when considering familiar topics in the war on terror legal debates.

Scholarship: "Let the Small Changes Begin: President Obama, Executive Power and Don't Ask Don't Tell"

"Let the Small Changes Begin: President Obama, Executive Power and Don't Ask Don't Tell" by Jackie Gardina (Vermont Law School). Conventional wisdom holds that to avoid the mistakes of the Clinton Administration, President Obama must not push Congress or the military too quickly on reforming Don't Ask Don't Tell.  This article advocates that President Obama should act swiftly and unilaterally to change how the Department of Defense (DoD) implements the policy. It also discusses the historical context of Don't Ask Don't Tell, including recent circuit court decisions.

4th Circuit removes FSIA hurdle to most torture suits

By Sarah Wappett-Kendall, CNSL Research Assistant    

It has long been the rule that the Foreign Sovereign Immunities Act (FSIA) protects not just foreign governments but also their officials from suit in U.S. courts. However, in the recent case of Yousuf v. Samantar, the Fourth Circuit held that the FSIA does not protect individuals from suit under the Torture Victims Protection Act (TVPA). The district court had followed the majority of circuits and had ruled that the FSIA provides immunity to individuals who acted as an “agency or instrumentality” of a foreign state. The Fourth Circuit, however, split with its sister circuits, holding that the statutory construction of the FSIA does not allow it to apply to individuals (and certainly not to individuals who are no longer government officials). It held that common law doctrines of act of state immunity might apply, but deciding cases on the basis of these doctrines introduces more uncertainty and takes far longer because the Executive branch has to weigh in than the simple jurisdictional rule of FSIA. The Fourth Circuit’s view is (1) a better outcome in the instant case; (2) a better reflection of Congress’s intent in drafting the TVPA; and (3) a better protection of separation of powers; but it will encourage more suits against properly immune defendants (such as Belhas and Matar noted below) and force them to litigate on the merits in order to avail themselves of common law immunities such as the act of state doctrine.

Ali Samantar, was the Somali government official in charge of the nation’s armed forces in the 1980s and 1990s as First Vice President, Minister of Defense, and then Prime Minister of the Democratic Republic of Somalia. Plaintiffs allege that the Somali military, under the direction of General Samantar, disregarded the distinction between civilians and rebels and allege a litany of human rights abuses and war crimes including extrajudicial killings, torture, and arbitrary detentions. Plaintiffs brought suit in the Eastern District of Virginia under the TVPA and the ACTA against Samantar, who currently resides in Virginia. The court dismissed the complaint for lack of subject-matter jurisdiction on April 27, 2007. Plaintiffs appealed to the Fourth Circuit.

In considering the TVPA, the majority of courts have reasoned that Congress intended that FSIA should immunize all conduct expressly ratified by foreign governments, even when the challenged conduct is torture or other egregious human rights violations (see example here). FSIA therefore protects Samantar under the majority view, and the district court ruled accordingly when the government of Somalia wrote in support of Samantar claiming that any actions, including all those alleged in the plaintiff’s complaint, fell within the scope of his official duties.

Courts have ruled that individuals acting in their official capacities are also subject to FSIA immunity. However, defendants acting outside their official capacities do not. An official of a foreign government is acting within his official capacity when two conditions are met: (1) the defendant’s actions are lawful according to the laws of defendant’s state (and thus within the scope of his authority), or (2) those actions were authorized by a public admission of that foreign state. Under the majority view, FSIA immunity has largely been up to the defendant’s home government’s decision to ratify conduct or not.

Previous cases have emphasized whether the government in question was willing to ratify the controversial acts of its officers. In two recent cases, Israeli generals were sued under TVPA for ordering bombings against Lebanon and Gaza. In these cases, the Israeli government wrote to the State Department requesting that the suits be dismissed as the generals had been acting in their official capacities and asserting that allowing the suits to proceed would have been akin to suing the State of Israel itself. The U.S. State Department submitted a Statement of Interest (SOI) in Matar (but not Belhas) urging dismissal based on sovereign immunity. Both Belhas and Matar were dismissed based on immunity under FSIA, reflecting the position of the majority of the Circuits. In Yousuf, as in Belhas and Matar, the government of the defendant wrote on his behalf effectively ratifying all of his alleged actions. Without any evidence that the defendant acted in a personal or private capacity or that his actions were unlawful and not authorized by the state, the majority view is that Samantar should receive immunity under FSIA.

The Fourth Circuit, however, took a hard look at the linguistic construction of the FSIA and ruled that it does not afford immunity to individuals. Without analyzing the assessments and conclusions over the statute’s language, the result is that, as Judge Duncan noted in his concurring opinion, Samantar and future defendants will have to rely on “common law immunities that predate the FSIA” such as act or state and head of state immunity. While those potential defendants who would be immune would probably be the same, the change would not likely protect them from having to defend against a suit on the merits. The ratification of an individual’s actions by his home government no longer offers automatic immunity in U.S.courts (at least, in the Fourth Circuit). It would be subject to the opinion of the Executive Branch as articulated by the State Department as to whether act of state or head of state immunity should apply.

This outcome better respects Congressional intent for the TVPA and the ACTA as well as the legal principles of allowing the Executive to guide matters of foreign relations. This arrangement will permit the results in Belhas and Matar but also allow suits against defendants like Samantar to go forward. The trade-off is that, under the Fourth Circuit’s view, properly immune defendants will have to litigate a suit longer before it is dismissed under the common law act/head of state immunity.

Do as the Romans did: a Foreign Legion to fight America's wars

President Obama is beginning office with a military that has been badly damaged by seven years of unpopular wars. The quality of enlisted personnel in the military has been decreasing for years, and although the current economic crisis will certainly boost recruitment, as it always does, the fact remains that the United States is facing a long-term disconnect between its military obligations and the manpower of its armed forces.

Of course, during the Cold War, the United States had a substantially larger military than it has today. Unfortunately, America’s military needs have not substantially diminished; they have merely changed form. During the Cold War, the primary threat was a Soviet armored punch across the European plains. Now, the threat is more nebulous – failed states, low-intensity conflicts, and the general breakdown of law and order. Changes in technology, both military and information, have put far more power in the hands of individuals, loosely connected. (This is clearly evident in the way our own military operates.) New military missions (like dismounted patrols through markets, snatching a sleeping suspect from a crowded apartment building, training local security forces, or building close relationships with local power brokers) require less technology and more danger than the old ones. They also require extended deployments, which strain families.

The military is fond of talking about technology as a "force multiplier" – something that makes individual troops more effective, thus allowing the same job to be performed by a smaller force. But America can no longer make do with fewer troops. Many force multipliers are standoff weapons, which allow the American military to destroy the enemy long before the enemy has a clear shot at us. But dismounted infantry troops patrolling markets require a different way of making war from mechanized infantry fighting set piece battles: different skills, different weapons, and more than anything, more soldiers. (Ask yourself how many F-18s are required to secure a Baghdad marketplace, or capture an Afghan mullah.)

There exist only five possible ways to make up the shortfall in manpower:

The first option is to allow more volunteers for the regular armed forces by lowering recruiting standards. With standards already at an all-time low, and at a time when China – our only plausible peer rival in the next thirty years – is increasing the quality of its recruits, this is a short-sighted option.

The second alternative is raising compensation, as the army reserves have done. This is a fine idea, but it is expensive, and it is unlikely to fully solve the quality problem.

Another option is to bring back conscription. Although the arguments against the draft are obvious, they merit repetition: our highly-motivated all-volunteer army is leaner and more lethal than the cumbersome conscript armies of the 1960s, and besides, reinstituting a peacetime draft would be political suicide.

A fourth option – the use of mercenaries – is what the Bush Administration has used. Mercenaries are a useful expedient at times, and there is no shame in using them, but they have some disadvantages. First, they are extremely expensive – something on the order of ten times as expensive per year as regular soldiers. Second, there are some missions that mercenaries cannot or will not do. Third, the United States should think twice about creating a large international market in highly skilled warriors-for-hire. The United States may not always be the highest bidder, and besides, the creation of a lucrative secondary market for skilled warriors creates a tempting alternative for American soldiers to use their training in the service of other nations.

The final, and best, option is enlisting the help of non-Americans to help America fulfill its military obligations – an American Foreign Legion. Others have suggested this in the past, and it’s time to take the option seriously. There are many examples from history of overstretched empires resorting to foreign manpower to supplement their regular forces. The Roman Empire used barbarian armies to secure their frontiers, the British Empire made extensive use of colonial troops – particularly Indians – in the World Wars, and the French Foreign Legion has a long history of honorable service in foreign wars. Even Spain is now filling out its regular ranks with Latin Americans. The United States should follow their lead.

The American Foreign Legion should be modeled after the successful French variety. All officers, and most of the NCOs, should be American (including, someday, foreign legion recruits who have earned their citizenship and risen through the ranks). Recruits would be required to have a high school diploma and basic English proficiency (thanks to the zeal of the British Empire, there are a great many people around the world who speak passable English).

The duties of the American Foreign Legion would be difficult, covering missions that require less skill and closer contact with civilian populations – UN peacekeeping, garrison duties, and facility guard duties. They would be lightly armed, and trained to do low intensity patrols rather than armored assaults against similarly equipped armies. In return, enlisted personnel would receive American paychecks – extremely generous by the standards of most of the world – and they and their immediate families would receive permanent residency in the United States after five years of honorable service.

There are many advantages to such a force:

It would boost enlistment in an era when it has become exceptionally difficult to meet recruitment needs. And it would provide the American military with a ready-made source of linguists and cultural experts on which to draw in overseas operations.

It would allow a legal path to citizenship through service. Motivated foreigners would be permitted to earn the right to live in the United States. And I suspect that the men and women who served in the Foreign Legion would be the sort of hardworking individuals that most Americans would be proud to have as neighbors.

Although it is uncomfortable to say, an American Foreign Legion would make the use of violence for political purposes more acceptable to the American public. America has by far the largest military budget in the world, and yet much of its force is not usable, because it is devoted to destroying enemy armies, rather than providing security in foreign lands. Garrison duty overseas is unglamorous and dangerous, and thus politically unpopular with Americans. Recruiting foreigners to take up some of this dangerous role would dampen America’s isolationist sentiment, while simultaneously freeing regular troops to concentrate on warfighting.

As the world’s only superpower, America finds itself uncomfortably overstretched maintaining the peace in the far reaches of the world. It seems fitting that America now call on the rest of the world to help out.

Scholarship: "Viewing Hamdan Through a Military Lens"

"Viewing Hamdan Through a Military Lens" by Geoffrey S. Corn South Texas College of Law Oklahoma City University Law Review.  The Supreme Court's decision in Hamdan v. Rumsfeld provided an important reaffirmation of something military operational lawyers had always known: treating captured enemies humanely is an essential component of preserving the demarcation line between disciplined military operations and battlefield anarchy. In rejecting the selective invocation of the laws of war, the Supreme Court seemed to understand and confirm that this area of law reflects a delicate balance between authority and obligation, a principle reflected in longstanding Department of Defense policies. This brief essay will address this aspect of the opinion, and how the Court's impetus for cooperative military policy ultimately strengthened the head of the government.

Scholarship: "Making the Case for Conflict Bifurcation in Afghanistan: Transnational Armed Conflict, Al Qaida, and the Limits of the Associated Militia Concept"

"Making the Case for Conflict Bifurcation in Afghanistan: Transnational Armed Conflict, Al Qaida, and the Limits of the Associated Militia Concept" (Naval War College International Law) by Geoffrey S. Corn (South Texas College of Law).  The U.S. has acknowledged that the conflict with Taliban forces in Afghanistan is an international armed conflict but asserts that the conflict with al Qaeda may not be.  This article considers the viability of this bifurcated armed conflict approach to operations in Afghanistan, and challenges the assumption that the geographic continuity of military operations against the Taliban and al Qaeda in Afghanistan mandate that these armed conflicts be treated as unitary.  HT to National Security Advisors.

Scholarship: "The International Legality of U.S. Military Cross-Border Operations from Afghanistan into Pakistan"

"The International Legality of U.S. Military Cross-Border Operations from Afghanistan into Pakistan" (International Law Studies) by Sean D. Murphy (George Washington University Law).  This article addresses the possible justifications under international law for U.S. cross-border operations from Afghanistan into Pakistan, including implied Pakistani consent, the Security Council's Chapter VII resolutions, and the inherent right of self-defense.  HT to National Security Advisors.