Tag Archives: war

Bill’s detainee provisions reaffirm the law of war

(from Roll Call, October 27, 2011)

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

Gen. David Irvine’s objections to the detainee provisions in the 2012 defense budget bill miss the mark.

These provisions do not change existing U.S. counterterrorism policy, much less challenge the country’s values or character. Rather, they reaffirm measures adopted shortly after 9/11, which the Bush and Obama administrations have rightly seen fit to maintain.

In the wake of 9/11, President George W. Bush concluded that a military response to al-Qaida and its allies was in order, for the obvious reason that the civilian law enforcement system was unable to prevent those devastating attacks. Congress wholeheartedly supported Bush’s decision, adopting a specific Authorization for the Use of Military Force on Sept. 18, 2001.

The United States is, therefore, at war with al-Qaida, its allies and its supporters. U.S. operations against those groups and individuals are governed by the laws of war, which clearly permit U.S. forces to attack al-Qaida’s leadership, operatives, and others who themselves engage in or support hostilities against the United States. In addition, throughout the conflict, the United States is entitled to capture and detain such persons, without criminal charge or trial. Although these detentions may be protracted, they are not “indefinite” because they must end when the fighting does. The Supreme Court has repeatedly upheld the legality of this policy.

It is for this very reason that the 2012 defense authorization bill would reaffirm both the nature of hostilities between al-Qaida and the United States, and these basic rules. In fact, the bill makes clear that detainees’ “disposition” is governed by the law of war — including “long term detention under the law of war without trial until the end of hostilities.”

It also clarifies that U.S. citizens can be held on the same basis but only “to the extent permitted by the Constitution of the United States.”

This is no invitation to remake constitutional law, but the invocation of existing Supreme Court precedent (some dating back to the Civil War and some that are post-9/11) that clearly permits the military detention (and even trial) of citizens who have themselves engaged in hostile acts or have supported such acts to the extent that they are properly classified as “combatants” or “belligerents.”

The bill does not define all of the groups who are al-Qaeda’s “associated forces” — a practical impossibility because of the irregular nature of al-Qaeda’s own organization and its transnational jihad — but makes clear that these forces must be “engaged in hostilities against the United States or its coalition partners.”

This basic limiting factor prevents improper action against groups or individuals who merely sympathize with al-Qaida or its goals.

In no way does the defense bill “militarize our system of justice.” Rather, it makes clear that the primary U.S. response to al-Qaida is, and will remain, military.

For 10 years now, debate has raged about whether a criminal justice approach to al-Qaida would more effectively protect U.S. national interests than a military one. Those who support a law enforcement model, however, have yet to articulate an answer to the most fundamental legal and practical objection to their position: If al-Qaida is to be treated merely as another global criminal organization, then U.S. forces cannot lawfully attack it anywhere in the world.

The legal rules governing law enforcement and war are fundamentally different. Authorities can use deadly force against criminal suspects only in the most narrow circumstances and almost always as a last resort. Unless perpetrators are caught in the act, they can be arrested only on properly issued warrants, and custody of perpetrators in foreign jurisdictions must be secured through the often time-consuming processes of international judicial cooperation.

Once apprehended, criminal suspects enjoy a plethora of rights designed to even the playing field between them and their governmental accusers. Moreover, the entire criminal justice system is based on the assumption that the potential for prosecution and punishment will, for the most part, deter illegal conduct. This system is manifestly unsuited to confronting a worldwide network of zealots who are determined to make war on the United States for their own ideological and geopolitical purposes.

Certainly, terrorism prosecutions in civilian courts can, and have, made a difference in the fight against international terror. However, redefining that fight as solely a law-enforcement problem in which such proceedings are the central mechanism to “defeat” al-Qaida is a recipe for disaster. President George W. Bush and President Barack Obama have rightly chosen not to take that path. Military force, and the body of law associated with it, is the only means by which the United States can degrade al-Qaida’s capabilities and ultimately grind it out of existence.

Force also is the only means by which Washington can effectively protect the American people from future attacks by al-Qaida, its allies and supporters. Demanding that protection does not transform our country into the home of the chicken-hearted. As law and morality make clear: Civilians are not legitimate targets of attack.

The American people have a right to expect that their government will secure them from attack by armed enemies so  that they can continue to enjoy the liberties that define the nation.

David B. Rivkin Jr. and Lee A. Casey are partners in the Washington office of Baker Hostetler LLP, and served in the Justice Department during the Reagan and George H.W. Bush administrations. Rivkin is also co-chairman of the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.

Source: http://www.rollcall.com/issues/57_49/david_rivkin_lee_casey_defense_detainee_provisions_reaffirm_law_war-209805-1.html


Did Obama overstep in Libya? Noted lawyer David Rivkin has answer

Constitutional Attorney David RivkinInternational law expert to host Federalist Society teleforum on Libyan debate

Published on June 21, 2011

by Brent Baldwin


OfficialWire PR News Bureau

Rivkin, the lawyer who successfully initiated the constitutional debate on the 2010 Affordable Care Act (“ObamaCare”), has achieved renown as one of the nation’s “staunchest defenders of the Constitution.” His legal opinions stem not from a conservative ideology, but rather a deep-rooted belief in personal freedom and the Constitution itself.Former White House lawyer, David B. Rivkin, Jr. has written extensively about the powers granted to presidents by the U.S. Constitution.

Through op-eds in The Wall Street Journal, The Los Angeles Times, The Washington Post, and other major media outlets, Rivkin and his long-time associate Lee Casey spend considerable time on legal opinions.  Rivkin is also a frequent speaker at local Federalist Society Chapters throughout the U.S.

The Federalist Society’s teleforum will is scheduled for Wednesday, June 22 at 1 p.m. and will feature Rivkin, who practices appellate law at Baker Hostetler LLP, and Professor Ilya Somin of George Mason University School of Law. They will discuss the question of whether President Obama has exceeded his authority in the controversial Libyan operation.

President Obama’s team recently issued a 32-page report stating that, under the 1973 War Powers Resolution (WPR), congressional authorization was unnecessary for the current U.S. operations in Libya. Others who disagree have called for his impeachment. Rivkin, who has defended the president’s actions in Libya, recently won the prestigious 2011 Burton Award for Legal Achievement for his writing in The Washington Post.

To listen to the teleforum, interested parties can dial toll free 1-888-752-3232.

For more information, visit www.davidrivkin.com.

Source: http://officialwire.com/main.php?action=posted_news&rid=78319

Listen to this episode

David’s intro remarks about presidential authority in Libya

Recorded April 7, 2011

The Federalist Society – panel (International and National Security Law Practice Group)

link to more info: http://www.fed-soc.org/publications/detail/the-presidents-authority-in-libya-podcast

Listen to this episode

Obama’s nuclear strategy: less than meets the eye?

The following is a transcript from David Rivkin’s appearance as one of the panelist, “Obama’s nuclear strategy: Less than meets the eye?” at The Nixon Center on Wednesday, May 5, 2010.

“Nevertheless, the fact that the Russians are making such a big deal about the preeminent language and their dissipating loyal statement is important, I think, in informing us how they will behave in the future, relative to the treaty itself and the broader strategic relationship. For example, we can expect Moscow to continue to protest vociferously every U.S. missile defense effort–strategic, tactical–in fear, arguing that it is inconsistent with the treaty. And in fact, judging by my own practice in this area, we are going to scrub every effort we make at the government level–and even the contractor level–to be in compliance.”

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

Judicial Coup in Pakistan

Once a democratic champion, the Chief Justice now undermines the elected government

When U.S. President Barack Obama sharply challenged a recent Supreme Court decision in his State of the Union address, prompting a soto voce rejoinder from Justice Samuel Alito, nobody was concerned that the contretemps would spark a blood feud between the judiciary and the executive. The notion that judges could or would work to undermine a sitting U.S. president is fundamentally alien to America’s constitutional system and political culture. Unfortunately, this is not the case in Pakistan.

Supreme Court Chief Justice Iftikhar Mohammed Chaudhry, the country’s erstwhile hero, is the leading culprit in an unfolding constitutional drama. It was Mr. Chaudhry’s dismissal by then-President Pervez Musharraf in 2007 that triggered street protests by lawyers and judges under the twin banners of democracy and judicial independence. This effort eventually led to Mr. Musharraf’s resignation in 2008. Yet it is now Mr. Chaudhry himself who is violating those principles, having evidently embarked on a campaign to undermine and perhaps even oust President Asif Ali Zardari.

Iftikhar MOhammed Chaudhry
Associated Press
Iftikhar Mohammed Chaudhry

Any involvement in politics by a sitting judge, not to mention a chief justice, is utterly inconsistent with an independent judiciary’s proper role. What is even worse, Chief Justice Chaudhry has been using the court to advance his anti-Zardari campaign. Two recent court actions are emblematic of this effort.

The first is a decision by the Supreme Court, announced and effective last December, to overturn the “National Reconciliation Ordinance.” The NRO, which was decreed in October 2007, granted amnesty to more than 8,000 members from all political parties who had been accused of corruption in the media and some of whom had pending indictments.

While some of these people are probably corrupt, many are not and, in any case, politically inspired prosecutions have long been a bane of Pakistan’s democracy. The decree is similar to actions taken by many other fledgling democracies, such as post-apartheid South Africa, to promote national reconciliation. It was negotiated with the assistance of the United States and was a key element in Pakistan’s transition from a military dictatorship to democracy.

Chief Justice Chaudhry’s decision to overturn the NRO, opening the door to prosecute President Zardari and all members of his cabinet, was bad enough. But the way he did it was even worse. Much to the dismay of many of the brave lawyers who took to the streets to defend the court’s integrity last year, Mr. Chaudhry’s anti-NRO opinion also blessed a highly troubling article of Pakistan’s Constitution—Article 62. This Article, written in 1985, declared that members of parliament are disqualified from serving if they are not of “good character,” if they violate “Islamic injunctions,” do not practice “teachings and practices, obligatory duties prescribed by Islam,” and if they are not “sagacious, righteous and non-profligate.” For non-Muslims, the Article requires that they have “a good moral reputation.”

Putting aside the fact that Article 62 was promulgated by Pakistan’s then ruling military dictator, General Zia ul-Haq, relying on religion-based standards as “Islamic injunctions” or inherently subjective criteria as “good moral reputation” thrusts the Pakistani Supreme Court into an essentially religious domain, not unlike Iranian Sharia-based courts. This behavior is profoundly ill-suited for any secular court. While Article 62 was not formally repealed, it was discredited and in effect, a dead letter. The fact that the petitioner in the NRO case sought only to challenge the decree based on the nondiscrimination clause of the Pakistani Constitution and did not mention Article 62 makes the court’s invocation of it even more repugnant. Meanwhile, the decision’s lengthy recitations of religious literature and poetry, rather than reliance on legal precedent, further pulls the judiciary from its proper constitutional moorings.

The second anti-Zardari effort occurred just a few days ago, when the court blocked a slate of the president’s judicial appointments. The court’s three-Justice panel justified the move by alleging the president failed to “consult” with Mr. Chaudhry. This constitutional excuse has never been used before.

It is well-known in Islamabad that Mr. Zardari’s real sin was political, as he dared to appoint people unacceptable to the chief justice. Since consultation is not approval, Mr. Chaudhry’s position appears to be legally untenable. Yet Mr. Zardari, faced with demonstrations and media attacks, let Mr. Chaudhry choose a Supreme Court justice.

There is no doubt that the chief justice is more popular these days than the president, who has been weakened by the split in the political coalition which brought down Mr. Musharraf. Former Prime Minister Nawaz Sharif is now a leading opponent of the regime. There is a strong sense among the Pakistani elites that Justice Chaudhry has become Mr. Sharif’s key ally.

The fact that Mr. Chaudhry was a victim of an improper effort by former President Musharraf to replace him with a more pliant judge makes his current posture all the more deplorable. His conduct has led some of his erstwhile allies to criticize him and speak of the danger to democracy posted by judicial meddling in politics. The stakes are stark indeed. If Mr. Chaudhry succeeds in ousting Mr. Zardari, Pakistan’s fledgling democracy would be undermined and the judiciary’s own legitimacy would be irrevocably damaged. Rule by unaccountable judges is no better than rule by the generals.

Messrs. Rivkin and Casey, Washington, D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.

Trying terrorists in New York means we’re not at war

by David Rivkin and Lee Casey

From WashingtonExaminer.com

Published November 27, 2009

Attorney General Eric Holder’s decision to prosecute five al Qaeda terrorists, most notably Khalid Sheikh Mohammed, in federal civilian court is a mistake on many levels. The prospect is bad enough that, because these men — captured enemy combatants — were not given the rights of civilian criminal suspects, one or more may be acquitted.

By undermining the legal architecture supporting the use of military force against al Qaeda and its allies, this decision carries further profound implications for the United States’ ability to defend itself in the future.

Even as it jettisoned the term “war against terror,” the Obama administration has confirmed that the United States is engaged in an “armed conflict” — an international law term for “war” — with al Qaeda, the Taliban and their allies. President Obama has not withdrawn the United states armed forces from Afghanistan and even plans to increase them.

Characterizing the struggle against al Qaeda as an armed conflict is critical because it is the law of armed conflict that permits the United States to use military force in Afghanistan and elsewhere. If the law of war does not apply here, if al Qaeda and Taliban operatives are not enemy combatants but civilian criminal suspects, then armed attacks by American soldiers against them are illegal.

Such attacks would be war crimes leading to potential criminal liability not only for the individual U.S. servicemen involved, but all the way up the chain of command to the president himself.

These are not merely technical distinctions. Rules governing law enforcement and the use of deadly force differ profoundly from parallel rules during armed conflict. For example, police (or soldiers acting as police) cannot simply attack criminal suspects with deadly force. They must first attempt to effect an arrest and, depending on the circumstances, may even need an arrest warrant.

Moreover, civilian police must permit a suspect to escape if his capture would create any significant risk of injuries to the surrounding population. Under the law of war, while soldiers must also consider such risks, they may go forward so long as likely injuries to civilians (or civilian objects) are not disproportionate to the soldiers’ military objectives.

Above all, if the “law of war” architecture is undermined here, U.S. forces and civilian officials will be exposed to criminal liability for their use of force. Unfortunately, this is exactly what trying terrorists in federal District Court does.

It suggests that even the United States does not believe that it is engaged in a legally cognizable armed conflict, but rather in a widespread law enforcement initiative. This has, in fact, been our European allies’ view since 9/11 itself.

Of course, the Bush administration also tried certain al Qaeda operatives in the civilian courts — including Zacarias Moussaoui (often identified as the “20th” 9/11 hijacker), Jose Padilla (the “dirty bomber”) and John Walker Lindh (the “American Taliban”). However, the decision to try Lindh in federal court was made very early in the conflict, and the other two “defendants” originally were detained in the United States by law enforcement personnel.

That is not the case here. Mohammed and his compatriots were captured overseas and directly involved in active hostilities. These terrorists planned the 9/11 attacks. They are properly subject to military law in military courts.

Whether Mr. Holder’s decision was designed to bolster the president’s base, at a time when Obama is poised to increase U.S. troops levels in Afghanistan, or was a less politically cynical but still misguided effort to enhance our standing with the war-skeptical Europeans, it is a very bad deal for the country.

David Rivkin and Lee A. Casey are partners in the Washington office of Baker & Hostetler LLP and served in the Justice Department during the presidencies of Ronald Reagan and George H.W. Bush.

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