Tag Archives: National Security

Obama’s Security Council Gambit

by David B. Rivkin, Jr. & Lee A. Casey, March 15, 2015

The recent open letter by 47 Republican Senators, putting Iran on notice that the US Constitution fundamentally limits the President’s ability unilaterally to conclude a durable nuclear weapons agreement, has prompted strident criticisms from both the American and Iranian officials, giving some tantalizing hints on how a “nuclear deal” with Iran will be achieved. Despite some carefully-phrased statements to the contrary, it appears that the administration plans to evade the Constitution’s clear requirement that the Senate approve all treaties by having the UN Security Council adopt a resolution implementing the deal.

Indeed, Iranians seem to have been aware of this cynical game plan for quite some time, as evidenced by strong rejoinders in the Iranian state-controlled press, which mocked the Senate letter. Meanwhile, Iranian Foreign Minister Javad Zarif stated that any nuclear weapons deal “will not be a bilateral agreement between Iran and the U.S., but rather one that will be concluded with the participation of five other countries, including all permanent members of the Security Council and will also be endorsed by a Security Council resolution.” And European diplomats and UN officials also have been aware for quite some time about the administration’s Security Council gambit. Only Congress and the American people have been in the dark.

This deception aside, the Security Council-centric approach, while solving some of the Administration’s political problems, would impose very significant long-term costs on the United States, and would not ultimately achieve a binding deal that cannot be altered.

The Constitution’s framers purposely divided the treaty-making power between the president and Senate, requiring that the Senate consent to any treaty by a two-thirds supermajority, both to limit presidential power and to ensure that all such international undertakings by the United States enjoyed broad domestic support. This bedrock requirement cannot be avoided by claiming that an agreement ordering critical aspects of our relationship with another country is somehow not a “treaty,” or by reference to another treaty like the UN Charter.Read more…

Ratification of the Charter committed the United States, like other UN members, to comply with certain Security Council resolutions and those resolutions may impose binding international obligations on the United States. Specifically, Chapter VII of the Charter indicates that the “Security Council shall determine the existence of any threat to the peace. . .and shall. . . decide what measures should be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” By invoking Chapter VII, the administration intends to bypass the Senate and Congress as a whole.

The Charter, of course, does not and cannot reorder the Constitution’s division of power between Congress and the president. As the Supreme Court noted in a recent case, involving U.S. obligations to implement International Court of Justice decisions under the Charter, where it found that ICJ decisions were not automatically binding as a matter of domestic law “[t]he President may comply with the treaty’s obligations by some other means, so long as they are consistent with the Constitution.” Medellin v. Texas (2008)

Nevertheless, having the Security Council drive an Iranian agreement will have several deleterious legal and policy consequences. First, while the Iranian nuclear deal would not be binding on the United States as a “signatory” to the agreement, rendering Secretary Kerry’s statement to this effect technically correct but utterly misleading, it would bind the United States as a UN member.

Second, as is common with Chapter VII resolutions, the Iranian nuclear weapons resolution would keep the Council seized of the matter. This means that the resolution could be revised only by future Security Council action, which the United States cannot guarantee. For example, the United States and its allies would be unable to extend the proposed 10-year sunset provision, even if that became necessary based on Iranian conduct, since Iran would surely oppose the measure with the backing of Russia and China, who can veto any change.

This point is worth emphasizing, since the administration’s main oft-articulated reason for choosing the 10-year time frame for the nuclear deal is its belief that over this time period Iran’s regime would lose its revolutionary character and become a responsible regional power. This optimistic assumption has been strongly challenged by Israel, Saudi Arabia and other Sunni Arab states, who point out that Tehran hasn’t mellowed over the last several decades. The response by administration’s supporters has been that the United States will be able to react in the future to evolving Iranian behavior, whether positive or negative; this claim rings hollow, given the Chapter VII resolution that would enshrine the nuclear weapons deal.

And even if Iran’s own behavior is impeccable, other developments may well arise that would require changes in the agreement. For example, Saudi Arabia has indicated that it will endeavor to acquire nuclear infrastructure matching Tehran’s, thus precipitating a nuclear arms race in the Middle East and beyond. And the administration’s erstwhile priority has been to deny uranium enrichment capability to Sunni Arab states.

So, to salvage this goal, it might wish to try changing the Iran nuclear deal, and yet, having chosen the Security Council venue, it would unable to so. This is highly ironic, since the administration’s main justification for eschewing the treaty route is to preserve the President’s flexibility to change the deal on a moment’s notice, if circumstances demanding the change arise.

Third, it would be up to the Security Council to determine whether or not Iran is complying, and whether any particular violation is material. Even if the United States believes that Iran is in clear violation of its obligations, it could not suspend compliance with its own obligations unless the Security Council agreed. If it threatened to use force without Security Council approval – which remains possible as a self-defense measure under the Charter – the U.S. would certainly be branded an international lawbreaker at a tremendous diplomatic cost.

Indeed, the broader consequence of this whole approach would be to make the Security Council Iran’s powerful international protector, buttressing its ambitions as a regional hegemon and inducing Sunni Arab states to propitiate Tehran. While the Security Council has not always been responsive to US wishes—given the veto power wielded by other permanent members—Washington has at least been able to render it ineffective by exercising it own veto. The transformation of the Security Council into Iran’s ally would represent one of the most disastrous failures of American statecraft, the point that the administration seems to have overlooked.

Fourth, the international law consequences aside, the administration may well argue that a Security Council resolution binding on all UN member states, coupled with certain existing delegations of authority from Congress to the president, has a comparable domestic legal effect, giving the President authority to suspend or even cancel the statutory sanction regime now in place against Iran. Although this argument is legally flawed, it might give the administration some political cover to lift sanctions against Iran.

The administration is also likely to claim that, having dismantled U.S. statutory sanctions, it will retain leverage against Iran thru the so-called “snap back scheme,” whereby the Security Council, having vitiated some Iran sanctions entirely, will suspend the rest of them on a rolling basis. This would require the Security Council to renew the suspension every 180 days, theoretically enabling the United States to block this by exercising it veto power.

This argument, however, fails to carry the day; since the Security Council would be seized of the compliance issues, it would be exceedingly difficult for the United States to claim that Iran has violated the agreement and unilaterally block the renewed sanction suspension. Moreover, once the sanctions have been relaxed for a protracted period of time and enough Western companies have invested in Iran, re-imposing them would be ever more difficult. And, once the Iranian economy has recovered, it will become resilient to the resumption of sanctions, even if they could be re-imposed.

Overall, it is understandable why by-passing Congress and going directly to the Security Council has appeal to the president and his advisors, who are desperately looking for something that can be portrayed as foreign policy achievement and appreciate the depth and breadth of congressional opposition to any agreement permitting Iran to retain its nuclear infrastructure. But this tactic would also create tremendous diplomatic and national-security costs for the United States in the future, giving Iran the “high ground” as a victim of American lawlessness in future confrontations over its nuclear ambitions.

It would also set a dangerous precedent for future presidents, who may also be determined to achieve their foreign policy ends regardless of Congress and the Constitution’s requirements for treaty-making. This would lead to the aggrandizement of presidential power at the expense of Congress and warping of the separation-of-powers architecture, which is the primary means of protecting individual liberty in our constitutional system.

Moreover, if the purpose of using the Security Council is truly to tie the hands of a future president and Congress who may view the Iranian regime and its geo-political ambitions differently, it will not work. However binding Security Council resolutions may be on the international level, they are not “treaties” and the UN Charter – which is – is not self-executing. Thus, although the U.S. might be in violation of its international obligations, as a matter of domestic law, the president must still obtain congressional assent before he can lawfully lift statutory sanctions against Iran.

A future president could simply begin again enforcing those sanctions against Iranian assets, individuals and businesses that violate them. Perhaps even more importantly, even if the United States were to take a harder line against Iran in the future, violating the anticipated resolution, the Security Council would have to adopt a second resolution imposing enforcement measures against the United States, which the United States could of course veto.

In other words, if the administration does proceed to enshrine a nuclear-arms deal with Iran through the Security Council as a means of cutting Congress out of the process, it will not achieve its ultimate goal of a long-term agreement binding on the United States. It will merely impose additional and avoidable costs on the United States in the future when – as will almost certainly be the case – Iran again moves towards achieving nuclear power status. As a result, the administration should eschew this path and accept what the Constitution requires – Senate approval of the treaty it is now negotiating.

Messrs. Rivkin and Casey are partners at BakerHostetler LLP, specializing in constitutional litigation, and served at the Department of Justice and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. Rivkin is also a senior fellow at the Foundation for the Defense of Democracies.

Source: http://nationalinterest.org/feature/obamas-security-council-gambit-12421

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Crippling the Intelligence We Used to Get bin Laden

Obama’s directive to protect the privacy of foreigners will make Americans less safe.

By Mike Pompeo and David B. Rivkin Jr.

On Jan. 17, in response to former National Security Agency contractor Edward Snowden’s theft of U.S. intelligence secrets and concerns over the NSA’s bulk metadata collection, President Obama issued a Presidential Policy Directive (PPD-28) that neither strengthens American security nor enhances Americans’ privacy. To the contrary, it undermines our intelligence capabilities in service of a novel cause: foreign privacy interests.

All nations collect and analyze foreign communications or signals, what is known as “signals intelligence.” American technological prowess has produced the world’s most abundant stream of signals intelligence, thwarting plots against the U.S. and saving lives. PPD-28 threatens American safety by restricting the use of this signals intelligence.

First, under the new directive, U.S. officials are required to ensure that all searches of foreign signals intelligence are limited to six purposes: countering foreign espionage, terrorism, weapons of mass destruction, cybersecurity, threats to U.S. or allied forces, and transnational crime.

Such policy guidance is appropriate in principle, but these limitations are mere window dressing. Intelligence activities are already heavily scrutinized by executive-branch lawyers to protect Americans’ privacy. Yet the intelligence community must now operate under the presumption that they are somehow engaged in wrongdoing and must justify each and every step by reference to a proper “purpose” to rebut that presumption. This will make intelligence analysts overly cautious and reduce their flexibility in handling security threats.

Second, PPD-28 extends the same privacy protections to foreigners that now apply to data regarding “U.S. persons,” defined as U.S. citizens anywhere in the world and anyone in the U.S. The most visible result will be that intelligence concerning foreigners will contain redactions of material that may have value to U.S. security and diplomacy. The policy contains an exception for information “relevant” to understanding the substantive content of foreign intelligence, but analysts will inevitably face pressure to go with the redaction rather than bring in the lawyers to justify an exception.

These new policies aren’t required by law. Just as foreign terrorists should not be read their Miranda rights, the U.S. Constitution, including the Fourth Amendment’s requirement that searches be reasonable, doesn’t apply to foreigners outside the U.S. And international law imposes no limitations on foreign surveillance. Yet in a stunning display of naïveté, Mr. Obama says it is crucial that people in foreign countries, from Pakistan to Peru, understand that “the United States respects their privacy too.” The leak last week of the recording of a sensitive phone call between two senior State Department officials regarding Ukraine—almost certainly the result of Kremlin surveillance—vividly indicates how other countries feel about protecting Americans’ privacy.

PPD-28 applies only to signals intelligence and has nothing to say about human intelligence from spies, defectors and friendly intelligence services. But this too reveals the senselessness of the new directive. If we could induce an al Qaeda leader to defect, everything in his possession could be used immediately, helping to make connections and capture or kill our enemies. But if we obtained the same information through signals intelligence, much of it would have to be redacted in the name of a privacy “right” not recognized by U.S. or international law.

This disparate treatment of signals and human intelligence will complicate “connecting the dots.” Human and signals intelligence should work together to inform policy makers of a possible threat as quickly and thoroughly as possible. But imposing different restrictions on intelligence data from human and technological sources prevents that from happening. Different data regarding the same threats will be subject to different legal requirements and limitations on use and disclosure. That will require more lawyering and more time, neither of which helps U.S. security.

History provides numerous examples of how vital it is to integrate signals and human intelligence. Their interplay has long been used to direct troop movements, bombing campaigns and drone strikes, and it was crucial to finding Osama bin Laden.

Consider the 1962 Cuban missile crisis. Seeking to upend the strategic nuclear balance, Moscow installed short- and intermediate-range ballistic missiles in Cuba, reasoning that U.S. intelligence wouldn’t detect them until they were operational. American spy planes provided only low-quality photographs (signals intelligence) of the missile sites.

But because Soviet Lt. Col. Oleg Penkovsky, a double agent, had provided British and U.S. intelligence with information about the standard Soviet missile-base layout, analysts were able to interpret the spy-plane data to ascertain what Moscow was doing in Cuba. This kind of synergy between signals data and human intelligence will be stymied by policies that undermine flexibility in the use of intelligence from different sources.

Under the Constitution, national security and intelligence are largely the president’s responsibility. Because President Obama has decided to recognize a foreign right to privacy, Congress has little ability to check his move. But lawmakers can and should shine a bright light on PPD-28 and hold him accountable for a directive that will hobble our foreign-intelligence capabilities, even as the world spies on us and threats to Americans multiply.

Source: http://online.wsj.com/news/articles/SB10001424052702303519404579353322885979550?KEYWORDS=david+rivkin

Mr. Pompeo, a Republican from Kansas, is a member of the House Permanent Select Committee on Intelligence. Mr. Rivkin is a partner at Baker Hostetler LLP and served in the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush administrations.

Don’t be misled on anti-terror tools

(from The National Review, May 18, 2011)

By David B. Rivkin Jr. & Andrew Grossman

With three important anti-terrorism tools set to expire, conservatives shouldn’t allow themselves to be misled by inconsistent constitutionalists over what our nation’s fundamental law requires.

Put differently, why should politicians who voted for constitutional monstrosities like Obamacare have any particular credibility when it comes to national security? And yet each time portions of the PATRIOT Act or related legislation comes up for reauthorization, we’re treated to long-winded harangues, heavy on paranoia but light on case citations, by opponents suddenly interested in checking federal power. Short on specifics and specific abuses, they claim the provisions requiring reauthorization violate the civil liberties guaranteed by the Constitution.

They’re wrong.

At issue are the protections of the Fourth Amendment, which protects against “unreasonable searches and seizures” and sets out requirements for search warrants —  “probable cause” and describing with particularity the subject of the warrant. There is a potential tension between the Fourth Amendment, as it has been applied by the courts, and the president’s obligation to protect the nation from national-security threats. The courts and Congress have resolved this tension, however, by harmonizing the two in light of the Framer’s intentions and historical practice and allowing the executive to act aggressively, while still being subject to oversight, where foreign powers threaten the nation’s safety.

The three anti-terror tools up for reauthorization follow that model and even provide for greater protections than the Constitution requires. Two are standard tools of the trade in criminal investigations — “roving” wiretaps and “business records” orders — and the third corrects a small loophole in existing terror surveillance authority.

“Roving” wiretaps are nothing remarkable or unprecedented. Since 1986, courts have issued “Title III” warrants in criminal investigations, allowing this type of surveillance to collect evidence on players in organized crime and other targets of criminal investigations who have learned that a regular wiretap can be evaded by use of modern technology –switching between prepaid cell-phones and various Internet channels for communications. These warrants have been repeatedly upheld by the courts as lawful.

The major difference in the anti-terror context is that the application, which is submitted to the FISA Court made up of federal judges, need not specify by name the target, but can, instead, use other details to identify the particular person subject to surveillance — for example, an Internet handle used on particular web forums. Even after the court has approved the application, its oversight continues. The government must inform the court of each device or facility that it taps and specify the “facts justifying a belief that the target is using, or is about to use, that new facility or place.” Those who imagine that roving wiretaps authorize unbounded surveillance dragnets, without any supervision at all, are simply misinformed.

Business-records orders are also nothing new or objectionable. In general, the same materials can be obtained with garden-variety grand jury subpoenas issued by the clerk of court, rather than a judge. Indeed, the government routinely relies on grand jury subpoenas to collect information in terror cases for the reason that they are faster and more convenient than obtaining business-records orders, which requires demonstrating to a federal court “reasonable grounds” that the records sought are relevant to an investigation “to protect against international terrorism or clandestine intelligence activities.”

Business-records orders are also subject to additional restrictions. They are simply unavailable in intelligence investigations targeting a U.S. person where the basis for investigation is “activities protected by the first amendment.” Any information collected that concerns U.S. persons is subject to a “minimization” requirement that the government limit its retention and dissemination. And requests for orders seeking sensitive information, like medical records and library records, must be made by high-ranking intelligence officials, ensuring that such requests are made only when absolutely necessary.

The reason that terror investigators use business-records orders at all, despite the procedural hoops, is that they prohibit disclosure of the order by its recipient. The recipient can, however, challenge the non-disclosure requirement, as well as the order itself, in court. The benefit of secrecy in the context of years-long investigations to uncover and disrupt terror plots is plain, and the government has not used this power indiscriminately — it carries out about 40 such orders per year, on average.

And such secrecy is hardly unusual, in any case. Individuals subject to grand jury subpoenas may never become aware that records pertaining to them were pulled. As Patrick Rowan, a former federal prosecutor, explained in testimony before a House committee last month, it would not be unusual to seek bank records relating to the girlfriend of a target of a federal bribery investigation. If there were ultimately no indictment, or if the charges brought were not connected to her, she would never know that her records had been subpoenaed. This routine use of subpoenas, of course, clearly passes Fourth Amendment muster, under what’s known as the “third-party doctrine.” So do business-records orders.

The final expiring tool is the “lone wolf” definition, which recognizes that, in the Internet age, the government may be unable to demonstrate at the outset of a terror investigation that its target is directly affiliated with a foreign power, such as al-Qaeda. Terror groups increasingly use the “franchise” model, in which autonomous groups and individuals located in different areas operate independently, with minimal coordination and, in some cases, no hard knowledge of their foreign counterparts. These individuals may be recruited to the cause by online propaganda, inspired to carry out terror attacks based on what they read on message boards and news sites, and learn the techniques of terrorism by Googling for technical materials. Unlike in the past, an individual can be part of an international terror movement with only the vaguest connection to any specific terrorist group.

That is the basis for the lone-wolf definition. It simply allows the government to apply the Foreign Intelligence Surveillance Act, the primary tool for conducting anti-terror information-gathering in the U.S., to a non–U.S. person who “engages in international terrorism or activities in preparation” for such terrorism, but without proving a link to a specific foreign power. As with all FISA orders, any lone wolf investigation is subject to approval by the FISA Court.

Critics say this exception to FISA’s “foreign power” requirement intrudes on the Fourth Amendment’s exclusive domain, but they overlook or downplay the tie that it requires to “international terrorism,” which is specifically limited in the statute to activities that “occur totally outside the United States, or transcend national boundaries.” If that requirement is taken seriously — and if it is not, any debate on the point is meaningless –use of the lone-wolf power runs afoul of no constitutional limitation.

This is demonstrated, in a tangible sense, by the fact that the government has to this point never been forced to rely on the lone-wolf provision, instead making use of ordinary criminal-law procedures that are beyond any constitutional doubt. But it is easy to imagine circumstances in which the ordinary procedures would be insufficient or would cause delays in investigation.

Though the legal claims of the opponents of these tools are overblown, it is still a good thing that conservative legislators take their concerns seriously. Members of Congress have an obligation to uphold the Constitution, which means understanding and working through potential problems in legislation. In this instance, such careful scrutiny reveals a careful and thoughtful approach to providing appropriate tools for fighting terrorism while protecting the rights guaranteed by the Constitution. Unconstitutional overreaching by the federal government is a distressingly regular occurrence, but reauthorization of these tools is both legitimate and constitutional.

— David B. Rivkin and Andrew M. Grossman are attorneys with the firm of Baker Hostetler LLP in Washington, D.C.  Mr. Rivkin served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.

Source: http://www.nationalreview.com/corner/267582/don-t-be-misled-anti-terror-tools-david-b-rivkin-jr

Rivkin to speak on national security in the age of Wikileaks

American Constitution Society for Law and Policy hosts D.C. panel on government transparency and the First Amendment

Published on November 11, 2010

by Brent Baldwin

(OfficialWire)

WASHINGTON, D.C. (USA)
OfficialWire PR News Bureau

Former White House lawyer David B. Rivkin, Jr. will be among the featured panelists at a discussion on “National Security, Government Transparency, and the First Amendment” hosted by the American Constitution Society for Law and Policy. The event will be held Monday, Nov. 15, 2010 at the Carnegie Endowment for International Peace in Washington, D.C. from noon to 2 p.m.

In the age of controversial websites such as WikiLeaks, which has released hundreds of thousands of classified military documents, and the Washington Post’s Top Secret America project—the discussion should be vital to today’s rapidly changing media landscape.

The panel of national security experts and First Amendment scholars will explore the tensions, real and perceived, in a democracy between national security interests and government transparency. Among the questions to be explored: Under what rationale can government claim confidentiality for public documents? Does the Internet’s facilitation of searching large amounts of information change the stakes of aggregating sensitive documents? How are the needs of an electorate to be informed and hold its government accountable balanced against the needs of government engaged in an active conflict to keep information classified?

Other panelists include: Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington; Vincent Warren, executive director of the Center for Constitutional Rights; and Jerome A. Barron, Harold H. Greene Professor of Law at the George Washington University Law School and former consultant to the Senate Committee on Presidential Campaign Activities (Watergate).

The event will be moderated by Adam Liptak, Supreme Court correspondent for The New York Times. Lunch will be served at 12 p.m. and the panel will begin at 12:30 p.m. Online registration is available at the website for American Constitution Society for Law and Policy.

For more information, visit www.davidrivkin.com or contact:

David B. Rivkin, Jr.
drivkin@bakerlaw.com
202.861.1731
Suite 1100
1050 Connecticut Avenue, NW
Washington, DC 20036-5304

Source: http://www.officialwire.com/main.php?action=posted_news&rid=256467

The American terrorist Obama wants to kill

(from The Daily Beast, April 7, 2010)

The president’s decision to authorize the execution of an American citizen-turned-radical Imam, now thought to be in Yemen, is triggering outrage. Former Justice Department lawyers David B. Rivkin, Jr. and Lee A. Casey on why it’s a smart move.

By David B. Rivkin, Jr. and Lee A. Casey

Anwar al-Awlaki is an American citizen, born in New Mexico. He is best known as a radical imam who preaches jihad and celebrates violent Islamic extremism from within Western societies, including that of the United States. Media reports indicate that he was in contact with U.S. Army Major Nidal Malik Hasan, who is accused of murdering 13 people at Fort Hood, Texas, last November. Al-Awlaki left the U.S. for Yemen (his parents’ homeland) in 2004 and the U.S. government says that he is a member of al Qaeda. Accordingly, President Obama has authorized U.S. forces—including the CIA—to capture or kill al-Awlaki, an order that has provoked outrage among many of the president’s own supporters, who claim that any such action would be an illegal, extrajudicial killing of a criminal suspect. In fact, the president’s order is entirely lawful and justified.

“The fact that al-Awlaki’s role may have been more as a propagandist and interlocutor, rather than a foot soldier, does not render him a civilian or ‘non-combatant’ who is immune from deliberate attack.”

Although he was profoundly criticl of the “war on terror” before his election, President Obama has continued far more of the Bush administration’s policies than he has changed. He has not closed the Guantanamo Bay detention facility, he has not withdrawn American forces from either Iraqor Afghanistan, and he has clearly accepted the fundamental proposition that the U.S. is at war with al Qaeda and its allies. As State Department legal adviser Harold Koh (once also a vocal critic of the “war on terror”) recently noted in a speech before the American Society of International Law: “We continue to fight a war of self-defense against any enemy that attacked us on September 11, 2001, and before, and that continues to undertake armed attacks against the United States.” George W. Bushcould not have put it better. It is safe to say that President, rather than candidate, Obama has been hit with a sobering dose of reality about the nature and extent of the jihadist threat.

The president’s decision to add Anwar al-Awlaki to the list of al Qaeda operatives that the military and/or the CIA can target for attack is, therefore, hardly surprising. The fact that al-Awlaki is a U.S. national makes no difference. Americans who join in armed hostilities against the United States are enemy combatants. They are subject to attack, capture, and detention pursuant to the law of armed conflict, just like any other enemy combatant who is not a citizen. This was established in the World War II ”Nazi saboteur” case, Ex parte Quirin (1942), in which the Supreme Court approved the trial by military commission of eight German agents, at least one of whom was an American citizen. The Supreme Court reaffirmed this basic principle more recently in Hamdi v. Rumsfeld (2004), in which it approved the capture and detention (without criminal charge or trial) of an American who was taken fighting with the Taliban.

In both cases, the court invoked the law of armed conflict. It is this body of law in particular that permits U.S. forces to attack, without warning or any effort to capture, enemy combatants including al-Awlaki. Enemy combatants are not criminal suspects and the U.S. military is not a police force that must first attempt to effect an arrest before using deadly force. The only limitations on the use of force against such individuals involve the basic principles of distinction (forbidding direct attacks on civilians) and proportionality (requiring that the likely collateral damage to civilians from a military operation is justified by its overall objective). The use of technologically innovative instruments, such as remote-controlled drones, in no way violates these well-settled rules. Indeed, technology has long been a handmaiden of war. As a matter of law, drones are no different from aerial bombs, artillery shells, bullets, or bayonets.

It is true that drone attacks have emerged as one of the most significant and effective American instruments in this war, capable not just of killing numerous enemy combatants but, perhaps even more importantly, forcing the entire al Qaeda infrastructure to operate in a “scared mode.” When al Qaeda leaders are afraid to meet or travel, cannot communicate by phone, relying instead of couriers, their ability to wage war is tremendously degraded. Indeed, the fact that these salutary strategic results can be accomplished with unprecedented precision and greatly reduced, albeit of course not fully eliminated, collateral damage is something to celebrate. It is certainly not a reason to challenge the use of drones or seek to subject them to some heightened regulatory restrictions, above and beyond those found in the traditional precepts of the law of armed conflict.

Similarly, the fact that al-Awlaki’s role may have been more as a propagandist and interlocutor, rather than a foot soldier, does not render him a civilian or “non-combatant” who is immune from deliberate attack. Like anyarmed force, both al Qaeda and the Taliban include many individuals, who are part of their command and control or logistics and support apparatus. And, just as many members of legitimate military establishments, who rarely if ever actually go into action, are nevertheless “combatants” under the law of armed conflict, so is al Qaeda’s leadership (high and low) legally subject to armed attack.

Finally, simply because established targeting lists are prepared far from the actual battlefield is no good reason—as some have claimed—to subject the president’s decision to add or delete a name to judicial review. The Constitution makes the president commander in chief, and Congress has specifically authorized the president to use force against those responsible for the September 11 attacks and those who support their efforts. Appropriate congressional committees are briefed on a regular basis about all particulars of the drone program, further enhancing its accountability and bipartisan support.

The questions of when and how to attack the enemy are properly within the president’s discretion and not subject to judicial supervision. In this instance, it is the political branches of the federal government, and not the courts, which have the legal authority—along with the necessary technical expertise and political accountability—to conduct all aspects of the war against al Qaeda. If and when enemy combatants, including U.S. citizens like al-Awlaki, are captured, detained, and/or prosecuted, the courts will have their say.

As to Obama’s disappointed supporters, it is time that they acknowledge—as he and his administration have done—that the United States is at war with al Qaeda, and not merely engaged in some elaborate law-enforcement exercise. This war was not invented by George W. Bush as a means of increasing presidential power. It was brought to our shores by a determined and ruthless enemy that decided, long before September 11, to challenge the United States militarily in a concerted effort to drive American influence out of theMuslim world, and then ultimately to replace Western democracy as the prevailing global political and social system. That is the reality Obama discovered when he entered the Oval Office.

Messrs. Rivkin and Casey are Washington attorneys who served in the Justice Departmentunder Presidents Ronald Reagan and George H.W. Bush. They frequently write on international and constitutional law matters.

Source: http://www.thedailybeast.com/articles/2010/04/07/the-american-terrorist-obama-wants-to-kill.html

Underpants bomber, you have the “right” to remain silent

Should Abdulmutallab been given the right to remain silent or not? Might we have been able to extract more information and still tried the Nigerian later in the criminal system? David Rivkin, constitutional attorney, debates with Matthew Alexander, former senior interrogator in Iraq about the issue. Share your thoughts!

The war on terror

Part I:

Part II:

It has been a year since President Obama took office with a promise to close the detainee holding facility at Guantánamo Bay, Cuba. In the wake of decisions to try Khalid Sheikh Mohammad, Umar Farouk Abdulmutallab, and other terrorist detainees in civilian courts, this is an opportune time to assess our progress in the War on Terror.

Brought to you by The Federalist Society the panel discusses what has transpired, what has gone wrong, what has gone right, and what we should expect next. Topics will include detention, surveillance, interrogation, trials, and more. Panelists include Mr. Steven A. Engel of Dechert LLP; Hon. Neal K. Katyal, Principal Deputy Solicitor General for the U.S. Department of Justice; Mr. David B. Rivkin, Jr., Partner at Baker & Hostetler LLP and Co-Chairman for the Center for Law and Counterterrorism; Prof. Stephen I. Vladeck of American University Washington College of Law; and Prof. Neomi Rao of George Mason University School of Law as the moderator.

This event was co-sponsored by The Center for Law and Counterterrorism (A Joint Project of the Foundation for Defense of Democracies and the National Review Institute). Part 2 of 10, please visit The Federalist Society to view the entire series.