Posted Monday, May 5, 2008, at 6:01 AM
Thanks very much to Phil , Deborah , and Diane for their posts about Wednesday's air strike in Somalia . Apparently it was the fifth U.S. strike in Somalia in the past 16 or so months. I do have a few, mostly preliminary thoughts about the legality of the strikes, but before I get there, I think the most noteworthy aspect of this story is that, except for us bloggers and some international law scholars (and former State Department officials), it seems that no one really cares whether the strikes were legal. I haven't seen any discussion of the legal question in the major newspapers or on television. No debate in Congress, far as I can tell. And even the administration itself has not bothered to offer any legal justification of its conduct. On the White House Web site, all I was able to find was this passing comment by the president in a Q&A at World Wide Systems Inc. in Maryland Heights, Miss.:
You probably read your newspaper today—I can understand if you didn't, but you probably—(laughter)—well, anyway, there was a strike in Somalia, and the headline says "al Qaeda operative." We're constantly trying to find these people before they hurt you; pressuring all the time.
That's it: The president offhandedly refers to a newspaper headline about an "al Qaeda operative"—and that's apparently all that needs to be said.
This is, I think, a minor example of a much larger phenomenon, and problem—namely, that apart from questions of detainee treatment and the like, the American public, press, and legislature appear to be completely oblivious to the idea that questions of war and military force raise any legal issues at all. It's not as if the public is indifferent to questions of whether and when military force is appropriate. To the contrary: It's simply that it seems never to occur to anyone that law's got anything to do with it.
This phenomenon was most telling in the run-up to the Iraq war: In England and across Europe, there were prolonged, impassioned public debates (recall the Lord Goldsmith drama) about whether the war would be consistent with the U.N. Charter and with international law more broadly. Meanwhile, over here in the States, we certainly had a very intense public debate about whether to go to war in Iraq—a debate that included countless considerations of, and disputes regarding, costs, benefits, justifications, tactics, evidence, morality, etc. And yet, from what I can recall, the notion of legality was simply not a serious component of that debate at all . Those who supported the war would certainly not have considered changing their views if convinced that the war would violate international law; and those opposing the war did not think it would advance their cause to argue that the war was illegal. Moreover, I suspect that if any major political figure here had suggested that whether we fight a war in Iraq depends on, say, whether it would comply with the U.N. Charter, folks would have looked at her as if she were speaking a foreign language.
What's worse, it seems to me that no one much considers the law when it comes to the use of military force because no one thinks the law will, in fact, constrain the executive, anyway, whether Republican or Democrat ... so why bother? Fortunately, my impression is that the question of legality does still occupy executive officials, at least in the State Department, but I wonder how much influence those folks have and how long it will be before such fundamental legal questions begin to lose their purchase altogether.
OK, but what about the Somali strikes, including the one Wednesday: Are they legal? A few scattered thoughts:
1. It's not clear to me that the president would lack the constitutional power to order the strikes, even in the absence of the AUMF. Are these strikes materially different from President Clinton's 1998 strike on the pharmaceutical factory in Sudan? Surely the strikes themselves do not amount to a "war," in the constitutional sense—particularly because it appears that the government of Somalia likely welcomed (if not invited) our action—and so it's not obvious that the Declare War Clause is relevant, or that any congressional involvement is required, as a constitutional matter. Whether the president could order the strikes without legislative approval would depend, I suspect, on a variety of factors, not least of which is why, exactly, the strike was ordered—what the U.S. interest was. And because the administration is not saying anything about the purpose or legal basis of the strikes, we're left mostly in the dark on that question. (From all that appears, the strike was designed to stymie the influence of the al-Shabaab insurgency , and thereby to protect the governing, U.S.-backed Somali government.) On this general question, my views are close to those contained in memoranda written by Walter Dellinger as head of OLC in the Clinton Administration, justifying the military actions in Haiti and in Bosnia . (Under the rationale of those opinions, most modern unilateral presidential military actions have been constitutional—with the important possible exceptions of Korea and Kosovo.)
2. If there were no independent presidential authority to order the strike, does the AUMF authorize it? Well, that depends largely on (i) whether and how the target of the strike, Aden Hashi Ayro, was connected with al-Qaida (and whether such connections were the genuine basis for the strike), and (ii) whether the strike complied with the laws of war (and was thus "appropriate," as the AUMF requires). On the first question, the headlines do, indeed, regularly refer to Ayro as an "al-Qaida operative." But what does that mean? It is undisputed, I think, that he trained with al-Qaida before 2001. But was he in fact acting as an al-Qaida "operative"? Was he part of their command structure? I have no idea, and the reports I've seen are conspicuously threadbare on this question. (Somali government intelligence claimed last year that he had been "named" al-Qaida's "leader" in Somalia, and I have no reason to think that's not the case, but I also have no idea how reliable that claim is, or even what it would mean, exactly. The Washington Post editorial page claims that "as al-Qaeda's chief liaison in the Horn of Africa, Mr. Ayro coordinated the movements of militants and money, and he sheltered several of the suspects in the 1998 bombing of two U.S. embassies in East Africa." Again, I have no reason to doubt the truth of this, nor any way to assess its reliability.) Ayro was certainly a very evil and dangerous guy, and the United States had very good reason to want him dead. But it's not yet clear whether his amorphous ties to al-Qaida—to those responsible for the 9/11 attacks, against whom the AUMF authorizes the use of military force—were the actual reasons for this strike, or whether those ties are a mere pretext for a military strike that we would have undertaken regardless of any possible al-Qaida connection. From all that appears, the strike was undertaken simply because Ayro was a terrorist, without regard to whether and how he was connected with al-Qaida: "The U.S. is committed to identifying, locating, capturing and, if necessary, killing terrorists wherever they operate, train, plan their operations, or seek safe havens," said a Pentagon spokesman . If so, then the AUMF is probably merely a legal fig leaf.
3. I agree with Deborah and Diane that the strikes must comply with the laws of war, whether they were authorized by the AUMF (which the Supreme Court in Hamdi properly construed to incorporate only what the laws of war allow), or merely by the president's constitutional authority (because, in my view, it is fair to understand the commander-in-chief authority itself to be defined and delimited by the laws of war—an admittedly more contestable proposition, but one that was fairly uncontroverted for the first 100+ years of practice under the Constitution). So, did the strikes violate the laws of war? Here, I'm decidedly outside my area of expertise. I would note, however, that the inquiry itself raises at least three distinct questions:
a. Deborah's question: Can enemies be targeted "anytime, anywhere"? Ayro, Deborah writes, appears to have been minding his own business, far from any traditional field of "armed conflict," probably asleep in his bed. I don't know whether this is problematic under the laws of war. I would think not—subject to the principle of proportionality, mentioned below—but I defer to others with far more knowledge on that question.
b. Proportionality: Under the laws of war, even attacks directed at military targets are prohibited if they "may be expected to cause incidental loss of civilian life, injury to civilians , damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated." The strike killed not only Ayro, but also between eight and two dozen other people, some of them apparently civilians. A violation of the principle of proportionality? Not according to the Pentagon , which appears to concede the applicability of the rule: " As a general rule, U.S. planners seek to minimize any affect of such strikes in civilians, a U.S. Central Command official said, noting that in many cases, planners abort a strike rather than endanger civilians."
c. Jus ad bellum : Diane argues that the strike itself might be unlawful in a more fundamental way, because it was undertaken without approval of the U.N. Security Council, arguably in violation of the U.N. Charter (a treaty to which the U.S. is a party). I'm not so sure, for two reasons in addition to the self-defense theories that Diane discusses. For one thing, to the extent the AUMF authorized the attack, it might be viewed as a later-enacted statute that takes precedence over the treaty: That is to say, Congress might be said to have authorized uses of force that are neither approved by the Security Council nor otherwise permissible under the charter. (I need to think about this question further, however.) But even under the charter itself, it's not clear that this is the sort of action that requires Security Council approval. Article 2(4) provides that "[a] ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state , or in any other manner inconsistent with the Purposes of the United Nations." This strike, which the Somali government presumably welcomed, did not appear to be against the territorial integrity or political independence of Somalia.