Law

I am happy to post this piece by Stanford Law Professor Tom Campbell, a specialist in international law. I sent him the two articles by David Westbrook, but, since campus mail travels by mule-back, he may not receive them for some weeks. If he has any comments on them, I will of course post them.

Dear Ronald, In response to your invitation, I have sketched out a few thoughts on international law, which I would be happy to share with WAISers. May I politely ask that these thoughts be considered as a draft, with comments invited, as I continue to clarify my own thinking, rather than as quotable in present form? Many thanks. Tom

International law has not accepted a single authoritative source. It has often been manipulated to serve some nations' interests, and ignored in the service of others. US Constitutional law does have an authoritative source, the text of the document, and an authoritative interpreter (all three branches of government, but, in the final analysis, the US Supreme Court). Both kinds of law apply in the present crisis. Under international law, an individual who commits crimes against citizens of another country, in that other country, can be punished by the country of the crime. That country locates the individual, and makes a request for extradition. It helps if the two countries have previously established a treaty providing for extradition, but it is not necessary under international law. Where there is a treaty of extradition, the United States requires our Department of Justice to obtain a warrant from a federal magistrate, finding probable cause for the individual's arrest, and that the crime alleged fits in one of the categories of crimes outlined in the relevant extradition treaty. That establishes a safe harbor, cutting off any further challenge to the individual's being tried in a US court, once delivered to our jurisdiction. Lacking an extradition treaty, the seizure of an individual overseas can be challenged if the US engaged in conduct considered shocking to fundamental rights, or aided in a foreign government doing so. The US Supreme Court has opined that torture and drugging of an individual might constitute such conduct. Luring an individual onto a plane bound for the US by trickery, however, would not.

Should an individual not be surrendered by the foreign country, the international rules of law become relevant. Prior to the United Nations, this is how the rules would play out. The requesting country can present the failure to surrender that individual as a casus belli, in a formal note to the requested country. The requested country can decide whether to offer some accommodation. If the exchange is not fruitful, the original country then makes an ultimatum upon the requested country. If that is not met, the requesting country may declare war upon the requested country. This all sounds quite formal; but that's what the old international law prescribed. Students of the First World War will find this familiar: Austria-Hungary presented to Serbia a demand to allow their own investigators onto Serbian soil to arrest members of the underground Austria-Hungary believed were responsible for anti-Austro-Hungarian sentiment, connected with, if not directly related to, the assassins of Archduke Ferdinand in the Austro-Hungarian province of Bosnia-Herzegovina. Serbia countered with many concessions, but did not meet the Austro-Hungarian demand letter for letter. Austria-Hungary then issued a formal ultimatum, with a deadline, citing the failure to comply with the demand as a casus belli. Serbia let the deadline pass, and Austria-Hungary declared war on Serbia.

After the United Nations, countries with grievances against other countries that might lead to war are, in the absence of imminent threat requiring immediate response (the right of self-defense), obliged to bring that matter to the Security Council. The Security Council is authorized to permit use of force, if necessary, to resolve the dispute, and to prevent greater use of force. If the Security Council does not act, and the aggrieved country's own security is at risk, it may take action on its own.

This step of going to the UN was, of course, followed by President George H.W. Bush in the case of Iraq and Kuwait. It has not yet been followed by President George W. Bush.

In terms of US constitutional law, the Congress, not the President, is given the authority to declare war. However, dating from the time of Madison and Hamilton, a special case has been argued regarding the situation when the US is attacked. In that situation, Hamilton argued, war has in fact come, and need not be declared. In line with that approach, President Franklin Roosevelt asked Congress to declare that a state of war had existed from the time of the Pearl Harbor attack, rather than to declare war against Japan. In keeping with this authority, but careful not to agree to the supremacy of Congress, President H.W. Bush sought and obtained Congressional approval for his action against Iraq. Here, his son has followed the father. Congressional approval has been given for any necessary and appropriate means to respond to the attack of September 11, against any person, organization, or nation. This is sufficiently broad to qualify under the Constitutional rule.

For followers of Madison's approach, action by Congress is always required, even when America has been attacked, but, once again, that is moot here. Congress has acted, with only one dissenter among 535 members of both houses.

Slim authority can be mustered behind the formal requirement that war be declared against a specific nation, as opposed to Congress simply authorizing "all necessary action." However, in the case where America was actually attacked (true for September 11, not true for Kuwait, or Kosovo), such an argument is at its weakest.

When an alleged criminal is found outside the jurisdiction of any country, international law has allowed an aggrieved nation to arrest the individual and bring him or her into the country for trial, or, in certain circumstances, to hold summary proceedings in international space. The latter case applied to piracy. It would be sheer chance for a ship of a country whose commercial ships had been plundered by a pirate to come across exactly the right pirate on the high seas. Accordingly, under international law, any nation could intercept a pirate on the high seas, hang him, and take or sink his vessel. Due process notions were at their weakest when no other country had to be invaded to seize the suspect, and where the suspect was otherwise capable of flight. Over time, international crimes subject to the same summary treatment grew to include slaving as well as piracy.

If the individual is found in another country, however, and that country surrenders him or her, then the individual is brought into the aggrieved country; and, in the case of the United States, the Constitutional requirements of due process apply. Hence, the individual must be presented with the charges against him or her, provided with counsel, access to compulsory process, the right to confront accusing witnesses, and a trial by jury. In the case of international terrorism, our country may not want to identify the source of some of the evidence; nevertheless, this is what our Constitution requires if an individual is to be tried in an American criminal court. Mafia defendants have occasionally had their indictments dismissed and trials stopped when the government chose not to reveal evidence that formed the basis for search warrants, for example, out of concern about the safety of the government's sources.

Putting all these rules together, the "easiest" outcome would be to identify the terrorists responsible for September 11 in international jurisdiction, and treat them like pirates. That is, find them and hang them. No casus belli would result, no declaration of war, no resort to the Security Council.

If the terrorist we suspect is in Afghanistan, then, there being no treaty of extradition between Afghanistan and the United States, America could take custody of the suspect anyway Afghanistan wanted to send him to us (assuming we were not complicit in any "shock the conscience" kind of torture). We would then have an immense problem, however: guaranteeing a fair trial to the suspect anywhere in America under current circumstances, which likely include a huge amount of evidence from sources we would wish to keep secret. A very real possibility is that we could not prove beyond a reasonable doubt that a particular suspect was the person actually responsible, even though we can be more certain than not we were right.

In the case Afghanistan does not surrender the suspect, our due process concerns are very much less insofar as action in the war theater is concerned. Assuming America goes to war (hopefully, having approached the Security Council first, as we promised to do in signing the UN Charter), there is no U.S. Constitutional requirement for proof beyond a reasonable doubt (or at any level of proof) in ordering targets for military operations. The suspect, accordingly, could be targeted and killed in battle. Also, the suspects' allies and means of committing future terror could be attacked and decimated.

The rules of the U.S. Constitution for criminal law require a process that does not comfortably fit with the crisis we currently face. The formal, pre United Nations, rules for presenting a casus belli and an ultimatum seem out of date as well, and certainly run the risk of making allies for the alleged offending country; much the way Austria-Hungary's ultimatum on Serbia managed to get Russia to declare war on her, as a show of solidarity with Serbia. The post-UN approach also seems flawed in that the Security Council possesses the right to say no; and that right is vested in any one of the permanent members of the Security Council, China for instance. I would defend America's right of self-defense to go ahead even in that event; but there's no denying the international response to our action would be less supportive. It would look as though we didn't care what the UN said. Going to the Security Council runs this risk; a risk that President George H.W. Bush was willing to take in regard to Kuwait (but that President Clinton refused to run in Kosovo, until after the war was over).

We try to abide by law, and we claim that our willingness to bind ourselves to the rule of law is what distinguishes us, and all civilized people, from international outlaws. The terrorists of September 11 seem entirely undeserving of anyone paying attention to legal formalities regarding their own treatment; but that's when we need to remember our own Constitution's Bill of Rights was written to defend very unsavory individuals, out of a commitment to a principle we chose to bind us.

My advice in this terrible context is to attempt the formal compliance with the rules of international law, and the U.S. Constitution. The latter views pirates different from criminals at home, and both different from military targets in war. I would pursue the pirate analogy and the war analogy. I would go to the Security Council and risk being rejected. If we are rejected, it would prove the bankruptcy of the United Nations, and the need for forming new international arrangements; and I would argue that the inherent right of self-defense includes finding who was responsible for September 11 and totally incapacitating them from launching further attacks. In that sense, we have nothing to lose by going to the Security Council; it is the Security Council that has much to lose by rejecting our request. Then, if the terrorist is found in a foreign country, Afghanistan, for instance, we should proceed with war, wherein our targets are chosen to defeat the enemy, not to satisfy domestic due process. If we are very fortunate and find the terrorist in international jurisdiction (perhaps kidnapped by the Russians or the Pakistanis), it would be consistent with international and American Constitutional law to hang the pirate there. Of all these options, the greatest strain upon our adherence to the rule of law would be presented if the individual is surrendered to American jurisdiction for criminal trial.

My questions: I thought the Security Council had already voted unanimously in favor of the US resolution presented by Ambassador Negroponte. However, it does not specify what actions are approved. President Bush has not formally declared war on Afghanistan, but he may well have to to justify military action. Other coalition allies (or coalitions allies!) may not wish to do so. In World War II most Latin American countries did not do so until victory was certain, and then to win a place at the San Francisco conference. I have no idea how Islamic law views all this.

Ronald Hilton - 10/3/01