Are the “bin Laden” Memos the New Torture Memos?

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Posted in: International Law

Last week, a New York Times special report revealed that prior to the 2011 Navy SEAL raid on Osama bin Laden’s compound in Abbotabad, Pakistan, four high-ranking government lawyers conferred in secret to consider the legality of the mission and alternatives, producing memoranda that ultimately gave President Obama the green light. The memos have not been made public, but it is possible to glean key features from the Times story and from public documents. The picture they paint is deeply troubling.

Indeed, as I shall explain, it appears that in one respect the bin Laden memos are as bad as the infamous “torture memos” that lawyers in the Bush Administration wrote to justify what was euphemistically called “enhanced interrogation.” In both instances, the government lawyers seemed to conceive their role as finding legal excuses for policies that the president wanted to pursue, rather than giving balanced legal advice.

The “Unwilling or Unable” Doctrine

The bin Laden memos addressed an unknown number of legal issues but here I will focus on the most prominent one: the threshold question of whether the United States could conduct a military operation in the territory of a foreign sovereign, Pakistan, with which we were not at war, and without its consent. The question is governed, in the first instance, by the Charter of the United Nations (UN), a multilateral treaty to which the United States and Pakistan are both parties.

Article 2 of the UN Charter bans aggressive war and the invasion of a foreign sovereign, but other Charter provisions authorize the use of military force in two circumstances: where specifically permitted by the UN Security Council under Article 42; and where a country uses military force in self-defense in response to an armed attack under Article 51. The Charter does not specifically permit the use of force against non-state actors operating out of a foreign sovereign’s territory, but many scholars of international law believe that there is an unwritten allowance for such actions where the host country is “unwilling or unable” to subdue the hostile non-state actor.

The pedigree of the unwilling-or-unable doctrine goes back at least as far as an 1837 episode involving a British attack on a ship on the U.S. side of the Niagara River, the Caroline, that was being used by U.S. citizens sympathetic to Canadian rebels whom the British were fighting. In the ensuing exchange of diplomatic correspondence between the American and British governments, the latter asserted its right to self-defense against an imminent threat.

American Secretary of State Daniel Webster acknowledged that when faced with a true emergency, the armed forces of one nation may invade the sovereign territory of a neutral nation in order to pursue a hostile non-state actor. However, Webster denied that Britain in fact faced an emergency. The United States, he said, was willing and able to prosecute rebels for any unlawful acts. But in characterizing the case as a dispute over the facts, Webster acknowledged that in a true unwilling-or-unable case, cross-border military force would be justified.

Although there are some skeptics, the unwilling-or-unable doctrine is now reasonably well grounded in international law. On the most straightforward account, it is part of the “inherent right of individual or collective self-defense” against “an armed attack” recognized by Article 51. True, this theory requires some fancy footwork to support the conclusion that an “armed attack” includes threats from non-state actors, but insofar as Article 51 aims to preserve an “inherent right” that pre-dated the Charter, it is plausible to construe that right with its historical gloss—including such prominent episodes as The Caroline.

An alternative view holds that even if Article 51 excludes any right to invade neutral territory to attack non-state actors, the unwilling-or-unable principle has become a norm of customary international law that supplements or supersedes the Charter. This view also requires some fancy footwork, because the Charter seemingly purports to list the exclusive grounds for the use of military force, but that difficulty is not unique to the unwilling-or-unable principle. For example, scholars who argue that force may be used against a country to stop a genocide under the so-called duty to protect also rely on what they regard as customary international law.

Was Pakistan “Unwilling” to Apprehend bin Laden?

Whatever its precise source, the unwilling-or-unable principle is sufficiently well accepted that the authors of the bin Laden memos should not be faulted for invoking it. The harder question—here, as with The Caroline episode—is whether the doctrine fit the facts.

Pakistan’s police, intelligence, and military clearly had the capacity to apprehend bin Laden, and thus Pakistan was able to do so. Presumably, however, the Obama Administration was worried that Pakistan was unwilling to take action against bin Laden. That is a fair inference, given that his presence in Abbotabad was likely known to the Pakistani government, which apparently tolerated it. Moreover, given Pakistan’s willingness to tolerate bin Laden’s presence—and given the longstanding difficulties between American and Pakistani intelligence over the support by some elements within the latter for Islamic extremists—it would also have been a fair inference by the American side that asking Pakistan to apprehend bin Laden would have undermined the mission: there is a fair probability that someone would simply have tipped him off and he would have escaped.

Does that mean that the raid satisfied international law? It is unclear. A narrow view of the unwilling-or-unable principle would insist that the pursuing nation formally ask the host nation for assistance before concluding that the host nation is unwilling to apprehend or attack the target. That view is not simply legalistic, moreover, because a strict requirement of notification would minimize both pretextual invocations of the unwilling-or-unable principle and inter-state armed conflicts that may arise when the host country responds to the surprise invasion with force. At the same time, however, strict insistence on prior notice would sometimes undermine the right to self-defense that supports the unwilling-or-unable principle in the first place.

Accordingly, University of Virginia law professor Ashley Deeks concluded in a law review article published not long after the Abbotabad raid that existing standards of international law are unclear about the procedures a pursuing state must follow to avail itself of the unwilling-or-unable doctrine. Professor Deeks proposed sensible clarifications of the doctrine but, of course, those clarifications were not in place at the time that the Bin Laden memos were written.

Thus, the only truly honest answer to the question whether the United States could, consistent with international law, conduct the Abbotabad raid without prior notice to or consent from the government of Pakistan is “maybe.”

The Legal Status of Non-Self-Executing Treaties

From the Times story, however, it appears that the bin Laden memos answered the question with a “yes.” If so, that is a contestable but at least defensible conclusion. A further point made in the memos is indefensible.

The memos apparently went on to claim that, even if the raid violated international law as embodied in the UN Charter, it would nonetheless be permissible for the president to violate international law if directing a covert mission. The Times story provides a link to a statement by current CIA director Caroline Krass that, according to unnamed sources, reflected the memo writers’ view. In that statement, Krass claimed that the president has no duty to obey the dictates of a non-self-executing treaty or customary international law, opining that whether to do so is simply a matter of “policy.”

That statement is false. As Cardozo law professor Deborah Pearlstein noted in a blog post last week, a non-self-executing treaty is not enforceable in U.S. courts as a matter of domestic law but it is binding as a matter of international law. Chief Justice John Roberts matter-of-factly made the point in his majority opinion for the Supreme Court in the 2008 case of Medellin v. Texas. Self-executing treaties, he noted, “automatically have effect as domestic law” whereas non-self-executing treaties “do not by themselves function as binding federal law” enforceable in U.S. courts, but nonetheless “constitute international law commitments.” As the leading—the Supreme Court has even said “sole”—voice of the United States in foreign affairs, the president, more than anyone, has a special obligation under international law to comply with a non-self-executing treaty, unless one is prepared to say that international law is not law at all.

Thus, the position taken by Ms. Krass in her public statement and, presumably by the bin Laden memo writers, is either woefully ignorant or radically lawless.

The Torture Memo Comparison

The efforts by Bush Administration lawyers to find non-existent legal justifications and excuses for torture were worse than the efforts by Obama Administration lawyers to find in international law a justification for the mission to capture or (much more likely) kill Osama bin Laden. Torture is widely and rightly regarded as a violation of categorical legal and moral norms, even when used against suspected terrorists. By contrast, the killing of bin Laden while he remained at large was broadly similar to the killing of other members of al Q’aeda waging war against the United States. In comparing the bin Laden memos to the torture memos, I do not mean to suggest moral equivalence. Nonetheless, in one important respect the comparison is apt.

The torture memos read not so much as balanced legal advice but as one-sided advocacy for a position. Even a private practice lawyer providing advice about the legality of a proposed course of conduct skates close to the ethical line when he slants the analysis to enable the client to hear what she wants to hear. Government lawyers who act in this way cross the line, because they have a special ethical duty to provide honest legal analysis, especially where, as with respect to international law and military operations, it is unlikely that the issue will subsequently give rise to any judicial proceedings.

To say that government lawyers are not mere hired guns is not to say that government officials will always follow their legal advice. But if the president or other high-ranking government officials ultimately decide to prioritize some policy goal over the law, that is their business. A government lawyer ought not to provide legal cover for such a decision.

Posted in: International Law

Tags: Legal

  • Guy Mullins

    A new book, Osama’s Angel by Michael McWilliams speculates on the probability of bin Ladens capture at Abbottabad. The fake burial at sea enabled the US Military to conduct a court martial in secrecy with bin Laden represented by a military lawyer.

  • David E. Frydrychowski

    What Pearlstein’s analysis misses is that a non-self-executing treaty is deliberately non-self-executing. It either commits the states party to set a consistent and enforceable rule using their own internal political processes, or is implicitly subject to some specific international enforcement mechanism.

    In the first scenario, states commit themselves to (1) initiate those political processes; (2) pending the outcome of those processes, not to act in a manner inconsistent with the purposes of the treaty; and (3) enforce the internally generated rule. In the second case, treaty compliance or noncompliance is assessed by the specific international body. To say that any time two or more states agreed on a set of principles, the outcome was somehow generally binding upon humanity runs roughshod over the last few centuries of diplomatic practice.

    @thisinhaste