Published by The Lawfare Institute
in Cooperation With
Published by The Lawfare Institute
Over the last several days, Administration officials have tried valiantly to explain the Administration’s surprising 11th hour discovery that the 2001 AUMF and indeed the 2002 AUMF provide a domestic law basis for the U.S. use of force in Iraq and Syria. The abrupt volte-face in the Administration’s domestic legal position has been the subject of much commentary on this blog and elsewhere, including in the lead editorial in yesterday’s New York Times. But what about the Administration’s international legal basis to attack ISIL in Iraq and, more important, Syria? The Iraqi Government has apparently consented to U.S. airstrikes in its territory. Ashley speculated yesterday about possible international legal justifications for attacking ISIL in Syria, but the Administration has been noticeably silent on this latter point. I hope this changes soon, and I would urge Administration officials to explain the international law, as well as the domestic law, basis for attacks on ISIL in Iraq and Syria. Tomorrow’s Sunday talk shows would be a good time to start. I have repeatedly expressed concern in the past about the Administration’s lack of clarity about the international law basis for edgy counter-terrorism operations, from drones strikes to the Bin Ladin raid. As I wrote with respect to the Bin Laden raid, “When a state uses force in or against another state, it should explain its reasons.” I believe this is especially true for the United States, which tries hard to base its actions on international law and whose actions set important precedents for other countries. In the current situation, it will be especially important for the Administration to explain its international law rationale for use of force in Syria, because it is trying to build a coalition of countries to participate in the action. Coalition partners, including the UK, Germany, and Australia, will be required for domestic legal and political reasons to base their use of force on international law. These countries are already privately asking the Administration to explain its legal position. Although I am well aware of the criticisms of Bush Administration’s counter-terrorism policies, in the Administration’s second term we tried very hard to explain the international legal basis for U.S. actions and to engage in dialogue with other countries about them. Obama Administration officials, in contrast, have been reticent about the international law basis for many U.S. actions, which is especially surprising given the Administration’s touted commitment to compliance with international law. Even the numerous speeches by Administration officials on the use of drones have all been delivered to audiences inside the United States and have been sparse in addressing international law. One reason for the current silence with respect to the possible use of force against ISIL in Syria (and previously with respect to the possible use of force against the Assad regime) is that there is not a clear legal basis, given that the Assad regime has (apparently) not consented to the use of force in its territory. This will leave the Administration to cobble together -- for either public consumption or its own internal legal analysis -- a variety of international legal rationales, which (as Ashley explained) may include that ISIL is part of Al Qaida and therefore part of the U.S. armed conflict with al Qaida, or perhaps a co-belligerency theory, or perhaps collective self-defense. In my own view, although there is not an obvious international law basis, the Administration has legally available options to defend its actions. Ultimately, the Administration may choose not to articulate an international legal basis at all, and instead to cite a variety of factual “factors” that “justify” the use of force, as the Clinton Administration did for the Kosovo war. But it would be much preferable for the Administration to provide legal reasons.
John B. Bellinger III is a partner in the international and national security law practices at Arnold & Porter in Washington, DC. He is also Adjunct Senior Fellow in International and National Security Law at the Council on Foreign Relations. He served as The Legal Adviser for the Department of State from 2005–2009, as Senior Associate Counsel to the President and Legal Adviser to the National Security Council at the White House from 2001–2005, and as Counsel for National Security Matters in the Criminal Division of the Department of Justice from 1997–2001.
On Tuesday, the D.C. Circuit Court of Appeals heard oral argument in Al-Alwi v. Trump. Chief Judge Merrick Garland, Judge Karen LeCraft Henderson (joining remotely) and Judge Thomas Griffith reviewed the...
Last week, U.S. Army Captain Nathan Michael Smith sued the U.S. Government in federal court, seeking a declaration that Obama’s war against ISIS is illegal. Jack Goldsmith and Marty Lederman have put for...
As I explained in a New York Times op-ed today, Captain Nathan Smith has gone to court for a declaratory judgment on the legality of President Obama’s undeclared war against the Islamic State. While I en...