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Behind the NYT Climate Accord Story

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Wednesday, August 27, 2014 at 10:50 AM

I am no expert at all on climate change.  With that large caveat, I think the Coral Davenport’s New York Times story about President Obama’s international climate accord ambitions overstates the domestic significance of what the President is up to—probably to the delight of the White House.  A clue to the problem is found in the Times headline (paper copy, not digital edition), which says: “Nations Would Commit to Curb Pollution, in Nonbinding Deal.” A nonbinding deal can do many things, but it is not much of a commitment. Davenport then opens her story with this sentence: “The Obama administration is working to forge a sweeping international climate change agreement to compel nations to cut their planet-warming fossil fuel emissions, but without ratification from Congress” (my emphasis). But Davenport goes on to say that nations will not in fact be compelled—at least not legally—to cut fossil fuel emissions. “President Obama’s climate negotiators are devising what they call a ‘politically binding’ deal that would ‘name and shame’ countries into cutting their emissions.” “Politically binding” is another way of saying “not legally binding.” i.e., it is a handshake.  Handshakes can matter in international politics, and “naming and shaming” based on political agreements can sometimes work (the Helsinki accords are a famous example).  But we don’t typically think of this form of international political pressure as “compulsion.”

But that is only the first layer of complexity in Davenport’s story.  She also writes:

American negotiators are . . . homing in on a hybrid agreement—a proposal to blend legally binding conditions from an existing 1992 treaty with new voluntary pledges. The mix would create a deal that would update the treaty, and thus, negotiators say, not require a new vote of ratification.

The 1992 treaty is the United Nations Framework Convention on Climate Change, which the United States has ratified.  The President knows he cannot get the 2/3 of the Senate to consent to update this treaty or to consent to a new emissions-reduction treaty.  And the President wants to do as much as he can on his own authority to forge global emissions reduction.  So the President appears set to enter into an Executive agreement that would update the treaty in ways that (might) pressure other nations to reduce their emissions and that might be the basis for further unilateral presidential actions to reduce emissions.  The President has some power, of a very uncertain nature and scope, to enter in to legally binding executive agreements pursuant to treaties (i.e. a new legally binding international agreement joined via the President’s delegated power from the original treaty). Whether the new agreement the President has in mind would be legally binding in some of its aspects is entirely unclear—the story largely implies not, but the devil would be in the details.

One reason that I think the President might have more than a mere political commitment in mind is this:

Countries would be legally required to enact domestic climate change policies—but would voluntarily pledge to specific levels of emissions cuts and to channel money to poor countries to help them adapt to climate change. Countries might then be legally obligated to report their progress toward meeting those pledges at meetings held to identify those nations that did not meet their cuts.

I seriously doubt that the President can lawfully (under the U.S. Constitution) commit the United States to international legal obligations of this sort and degree, beyond what is in the 1992 treaty. But much more importantly, even if what the President signs is somehow “legally binding” under international and even domestic law, that obligation wouldn’t force Congress to “enact domestic climate change policies” or to “channel money to poor countries to help them adapt to climate change.”  Nor, I think, would the President’s name on such an accord assist in shaming Congress into action. I doubt that future Congresses will be much swayed by “name and shame” pressure based on a legally controversial accord signed by a lame-duck President on a topic with strong domestic political salience.  Certainly the past does not suggest a happy future for shaming Congress in this way.  (I am definitely not saying that no future Congress will ever support global emissions reduction. Domestic politics can change, and can be influenced by international events.  I just think, to repeat, that a legally and politically controversial agreement entered in to by a lame duck president will not be the basis for the domestic change. It is conceivable, of course, that the Obama initiative will change the global politics of emissions reduction in a way that sparks domestic change; but again, that strategy has not worked in the past and is very speculative.)

The Obama administration understands all this. As do the other nations with which it is negotiating. Its main aims here thus seem to be twofold: (1) Do as much as possible to seem to commit the United States to reduce emissions, with the aim of forcing or encouraging other nations to assume obligations to reduce emissions, and (2) make clear to domestic political audiences and future legacy-makers that the President is taking a bold and controversial step to reduce global emissions. I am not sure whether the administration will succeed on the first aim, but on the second one it will likely succeed—because of the Republicans’ reaction. For even though the President’s international efforts will have no domestic legal effect, the Republicans, especially in the Senate, and especially ones in close elections in states harmed economically by emissions-reduction commitments (i.e. Senator McConnell), are likely to make the President’s initiative seem like a very big deal. That in turn could have an impact on the degree to which the bases in both political parties turn out to vote in November. In short, the biggest domestic impact of the President’s international emissions reduction initiative is likely to be in the mid-term elections.

A Cert Petition in Maqaleh [UPDATED]

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Wednesday, August 27, 2014 at 9:45 AM

A couple of weeks ago, several non-Afghan detainees at Bagram Air Force Base, Afghanistan filed a cert petition with the Supreme Court after the D.C. Circuit affirmed the district court’s ruling that it lacked subject matter jurisdiction to review the prisoners’ habeas actions. The prisoners, citizens of states not at war with the United States—such as Yemen or Thailand—have been at Bagram for over a decade after they were brought there from abroad.

The more than-50-page petition opens with two questions:

  1. Whether the Military Commissions Act of 2006, Pub. L. No. 109-366 Stat. 2600 (2006), violates the Suspension Clause in its application to citizens of countries other than the United States or Afghanistan whom the Executive captured outside of either country, far from any recognized battlefield, and has imprisoned for more than a decade without charge or reliable process under its exclusive custody and control at Bagram Air Base in Afghanistan.
  2. Whether the court below erred in relying on Johnson v. Eisentrager, 229 U.S. 763 (1950), to dismiss Petitioners’ habeas corpus actions, without according proper deference to this Court’s subsequent holding in Boumediene v. Bush, 553 U.S. 723 (2008).

Relying heavily on Boumediene v. Bush, 553 U.S. 738 (2008), which held that foreign nationals imprisoned by the Executive at the U.S. Naval Station at Guantanamo Bay could petition courts for habeas review, the petition opens by noting the matter is of “urgent and national importance” and imploring the Court to grant review. The petition then proceeds to advance six separable and independent arguments as to why the Court should grant review.

First, that the D.C. Circuit misapplied Boumediene’s multi-factor test by giving controlling weight to the government’s claim of practical difficulties to giving habeas review when the factors are not independently dispositive or of fixed weight. Second, that the D.C. Circuit misinterpreted the “practical difficulties” factor in Boumediene’s multi-factor test by looking at outdated and inapposite language from Eisentrager. Third, that the D.C. Circuit further misapplied the practical difficulties factor by failing to consider that the government’s actions caused all of the potential difficulties. Fourth, that the D.C. Circuit failed to give sufficient credit to the general inadequacy of process given to the Bagram prisoners as compared to the Guantanamo prisoners in Boumediene. Fifth, that the D.C. Circuit inappropriately viewed citizenship in a binary framework of either U.S. citizens or foreign nationals when those of foreign citizenship should be further distinguished between citizens of enemy states and citizens of non-enemy states. And finally, that the D.C. Circuit inappropriately concluded that giving the prisoners an avenue to pursue their habeas claims would lead to a slippery slope resulting in jurisdiction for all Bagram prisoners, because Bagram contains jurisdictionally distinct and separable categories of prisoners.

The petition concludes by, again, noting that the prisoners have had no access to any judicial review and asking the Court to take up the issue.

UPDATE: Both the Washington Post and Politico are reporting that Fadi Al-Maqaleh was released on Monday, ending what was a decade long detention at Bagram Air Base. Al-Maqaleh, along with his fellow Yemenite Amin al-Bakri—who is apparently sick with leukemia—was repatriated on Tuesday. It is unclear what bearing, if any, the release would have on the other Bagram detainees named on the cert. petition, and thus whether it raises any mootness issue for the cert. petition.

Today’s Headlines and Commentary

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Tuesday, August 26, 2014 at 2:42 PM

ISIS continues to dominate headlines today as debate sharpens around expanded U.S. intervention in the crisis.

The New York Times reports that President Obama has authorized surveillance flights over Syria, a move that could be a precursor for airstrikes in the country. The Defense Department said the military would conduct the flights using a combination of drones and U2 spy planes. In an attempt to avoid inadvertently assisting the Assad regime, the Pentagon is preparing options that would strike ISIS along the Syria-Iraq border, instead of more deeply inside of Syria itself. The Wall Street Journal has more.

According to the Associated Press, Syrian Foreign Minister Walid al-Moallem told reporters that Syria is ready “to cooperate and coordinate,” but suggested that “any strike which is not coordinated with the government will be considered as aggression.”  The statement is a sign that the Assad government is eager to capitalize on how much the international, and specifically American posture, has changed over the last year. However, the White House made clear that it has no plans to notify or collaborate with Assad.

The folks at the Washington Post have compiled a list of everything that the United States has already hit with airstrikes in Iraq. Yet ABC News  is quoting an unnamed U.S. Special Ops source saying, “these guys aren’t bugging out, they’re tactically withdrawing. [They’re] very professional, well trained, motivated and equipped.” The New York Post cites footage from a new propaganda video released by the group that shows ISIS fighters even used a drone to help plan their recent capture of a key Syrian air base. That level of sophistication is backed by “an ability to self-finance on a staggering scale” says Indira Lakshmanan of Bloomberg, who reports that ISIS now resembles the Taliban, but with oil fields that raise more than $2 million a day, instead of opium poppy.

The Times of London is reporting that British intelligence officials in MI5 and MI6 have identified the British fighter suspected of murdering American journalist James Foley. While sources did not confirm the identity, the Times notes that a key suspect is Abdel-Majed Abdel Bary, who left London and recently tweeted a picture of himself holding a severed head. USA Today notes that American officials have yet to confirm the killer’s identity. Foreign Policy has a profile of Bary, in which Elias Groll examines the angry music of the former west London-based rapper.

In a shed of good news, Jane told us yesterday that Syrian rebels had released Peter Theo Curtis, an American journalist who had been held hostage for almost two years. Today, the Washington Post has more information on how Qatar helped broker the release of Curtis, while Reuters reports that the country is currently working to help free four other Americans who are held hostage in Syria by various rebel and militant groups.

Read more »

U.S. News Gets it Wrong on Guantanamo and Foley’s Killer

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Tuesday, August 26, 2014 at 11:27 AM

If terrorist capture comes, can a debate over Guantanamo vs. federal court be far behind?

Apparently not. This time, the debate is coming even before the terrorist’s capture—or even his positive identification. And U.S. News and World Report, at least, is getting the answer wrong.

The magazine reports that “Legal experts say it’s possible the jihadist who beheaded American journalist James Foley will be brought to Guantánamo Bay and tried by the U.S. military.”

Um, no, actually. It isn’t possible—at least not without a major change in policy.

The story quotes two such legal experts:

Mike Newton, a professor of the practice of law at Vanderbilt Law School, says Guantánamo may be an appealing option if the culprit is captured from the Islamic State’s realm in eastern Syria and northwestern Iraq.

“The debate you’re going to have is whether you put him on trial in normal federal court or whether you take him to the military commissions at Guantánamo,” Newton tells U.S. News. “Part of the answer will be the sourcing of the evidence – if you’ve got evidence that you can get through the federal rules of evidence, great, [but] the rules of evidence at Guantánamo are different.”

A primary difference, he says, is “in layman terms, you can admit hearsay” in the military proceedings.

. . .

Erwin Chemerinsky, dean of the University of California at Irvine School of Law and a defense attorney for a Guantánamo inmate, agrees that the U.S. base in Cuba is a possible destination for the suspect.

“Assuming the government could apprehend the killer, I, too, could imagine the government placing the individual in Guantánamo and if tried, it would be before a military tribunal,” he says. “Obviously, the authority for this would be challenged, but I easily could imagine that would be the government’s choice.”

What neither expert mentions is that the Obama administration has a clearly-stated policy against bringing new detainees to Guantanamo—something it has never done. What’s more, Congress’s efforts to restrict transfers from Guantanamo have made bringing anyone new to the base a perilous enterprise, since doing so effectively guts executive flexibility in the subsequent disposition of the detainee’s case. So whatever happens with Foley’s killer—assuming we identify him and assuming also that we capture him—one thing that will not happen is that he will ever set foot in Guantanamo Bay.

I would also bet my left hand that he will not face trial by military commission. The Obama administration has not sought to use military commissions for a single non-legacy case. In each case of a new capture, detainees have found their way into the custody of civilian law enforcement and prosecution in U.S. federal courts. Why? Both because the administration is keen to return to peacetime authorities to the extent that it can and because the performance of the federal courts has been faster and more confidence-inducing than has the performance of the military commissions. I would not be surprised to see a non-legacy case eventually show up in a military commission (somewhere other than Guantanamo), but it won’t be a case like this one—which does not involve Al Qaeda or the Taliban or a clearly-AUMF covered group—and involves the relatively simple murder of an American citizen that can be tried in federal court.

Detainees File Petition for Rehearing En Banc in Allaithi v. Rumsfeld

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Tuesday, August 26, 2014 at 8:58 AM

Yesterday, plaintiff-appellants in Allaithi v. Rumsfeld filed their petition for a rehearing en banc, two months after the D.C. Circuit affirmed the district court’s ruling that six detainees subjected to prolonged detention and alleged mistreatment at Guantanamo did not sufficiently allege that the officials who authorized and supervised their detention acted outside the scope of their employment.

The 21-page filing opens by stating that the decision rendered by the three-judge panel (Judges Janice Rogers Brown, David Tatel and Senior Judge A. Raymond Randolph) in June raises two questions of exceptional importance:

1. Whether Plaintiffs, who were held in detention facilities at Guantanamo Bay, which the Supreme Court has previously characterized as a possession or territory of the United States, are “persons” who may avail themselves of the protections of the Religious Freedom Restoration Act (“RFRA”);

2. Whether Plaintiffs have stated a plausible claim that the prolonged detention and abuse of individuals who had been expressly determined by Combatant Status Review Tribunals not to be enemy combatants falls outside the scope of employment of Defendants and individual guards.

The crux of the detainees’ argument on the first question? The Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores Inc., 134 S. Ct. 2751 (2014).  Specifically, the detainees contend that Hobby Lobby establishes that they are “persons” under the Religious Freedom and Restoration Act (RFRA), and as such, are entitled to freedom from substantial burdens on their religious practices; Rasul I is no longer good law insofar as it limits RFRA’s protection to persons who have successfully brought a free-exercise claim under the Constitution.

The second question raises what has been the detainees’ central argument in proceedings below: the detainees contend that the panel wrongly relied on Rasul I to find that the abuse and prolonged detention of non-enemy combatants was within the defendants’ scope of employment, as Rasul I applies only to known and suspected enemy combatants. Moreover, the petition argues, the panel misapplied the relevant scope-of-employment test and the motion-to-dismiss standard by making inferences in favor of the government that were unwarranted at the motion-to-dismiss stage.

For background on the decision below, see our summary of the D.C. Circuit’s June 10, 2014 ruling against the appellants.

Note to Law Students: Buy Your Textbooks on Lawfare

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Monday, August 25, 2014 at 12:06 PM

It’s that time of year where law students buy textbooks. If you’re buying textbooks, please consider doing so using the Amazon search box on Lawfare. Every time you buy things using that box, Lawfare gets financial support from Amazon. When you buy big-ticket items like expensive text books, the money actually adds up. It’s a great way to support Lawfare without spending any additional money.

Of Ice Buckets and Dollars: A Challenge

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Monday, August 25, 2014 at 12:02 PM

I return from Iceland to find that untold numbers of apparently-sane people are pouring ice water over their heads to raise money for a disease of which many of them had only the dimmest prior awareness. And I think to myself: Why is nobody pouring water over his head to raise money for Lawfare?

We, after all, need to raise funds for our redesign and growth. And there are a great many Lawfare readers who have never clicked that little “donate” button that sits unobtrusively on the right-hand column of the site. Perhaps what is missing from our fundraising efforts is ice water. And then I think, perhaps not. Maybe for Lawfare ice water and videos are not the thing. Perhaps some Lawfare reader out there has a better challenge to motivate her fellows to support a site they use regularly.

So I open this question to the Lawfare hivemind: I challenge you to come up with a creative Lawfare fundraising challenge. Got an idea of how to challenge Lawfare readers to donate to the site? Shoot me a note. Send me a video. Tweet at us. I’ll post any and all that I think will amuse—and motivate—the readership.

UPDATE: This tweet, from ACLU chief technologies Chris Seghoian was, I admit, not quite what I had in mind:

Today’s Headlines and Commentary

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Monday, August 25, 2014 at 11:26 AM

The Islamic State remains at the top of the headlines.
First, a ray of good news amid the terrible: on Sunday, American journalist Peter Theo Curist, kidnapped in October 2012 and reportedly held by the al-Nusra front or affiliated splinter groups, was released to UN peacekeepers in Syria following Qatari mediation; here are details from Al Jazeera. His family has released a statement expressing gratitude to the U.S. and Qatari governments. On Sunday the British ambassador to the United States, Peter Westmacott, stated in an interview with CNN that British counterterrorism officers were “close” to identifying the young militant who beheaded American journalist James Foley on a video released last week by the Islamic State. The New York Times reports that identification of the killer could give intelligence officials insight into the kidnapping cell currently holding other hostages, including another American journalist, Steven J. Sotloff.
The Washington Post cites U.S. officials who say that an American offensive in Syria against the terrorist group would likely be constrained by intelligence gaps, and that American spy agencies do not yet have the capabilities to target Islamic State leaders using air strikes. Over the weekend, the Times editorial board issued an editorial calling for “an organized, longer-term response involving a broad coalition of nations, including other Muslim countries” to defeat the threat posed by the Islamic State: “Creating a regional military force may be required, including assistance from the Gulf Cooperation Council countries and Turkey. It certainly will require money, intelligence-sharing, diplomatic cooperation and a determined plan to cut off financing to ISIS and the flow of ISIS fighters between states.”
On Sunday, the Islamic State captured a major air base in Syria, the last foothold for forces of Syrian President Bashar al-Assad in the northeastern province of Raqqa. The Wall Street Journal reports that Assad supporters are blaming the military and security leaders for abandoning soldiers to brutal deaths at the hands of Sunni militants.
Dar el-Ifta, the top Islamic authority in Egypt, launched an Internet campaign on Sunday to stop the extremist group in Syria and Iraq from being called the “Islamic State,” on the grounds that the group’s criminal acts tarnish the image of Islam. The AP reports that the Grand Mufti of Egypt, Shawki Allam, will advise foreign media to instead call the group “the Al-Qaida Separatists in Iraq and Syria” (QSIS).
A suicide bomber killed 13 people inside a Shiite mosque in Baghdad on Monday, just after the country’s prime minister-designate called for national unity at his first official news conference, reports the Times. Reuters reports that today UN human rights chief Navi Pillary condemned the ongoing human rights violations by Islamic State forces in Iraq, which have included mass executions and ethnic and religious cleansing.
Thousands of supporters of Pakistan Tehreek-i-Insaf (PTF) are camping outside the Parliament building in Islamabad, reports the Pakistan Tribune, in a demand for the ouster of Prime Minister Nawaz Sharif.
The AP cites anonymous aides of President Mahmoud Abbas who say that the Palestinian leader is expected to unveil a proposal for the international community to set a deadline for Israel to end its occupation of lands captured in the 1967 Mideast war, as part of a “day after” plan following the ongoing war in the Gaza Strip. A Palestinian teenager, Ahmed Jamal Abu Raida, says that Israeli soldiers who assumed he was connected to Hamas detained him for five days last month, mistreated him, and forced him to dig for tunnels in his village near Gaza’s eastern border; the Times has his account of what would, if true, would constitute international law violations but have not been independently confirmed.
On Sunday, Iran’s Revoluntary Guards claimed that the country’s elite forces had shot down an Israeli stealth drone, and accused “the Zionist regime” of intending to penetrate Natanz, Iran’s main uranium enrichment site; the Guardian notes that the claims have not been confirmed. Iran’s state TV aired footage purporting to show the downed drone on Monday, says the AP, by way of ABC.
The Times reports that Russia plans to send another “humanitarian aid” convoy to east Ukraine this week; the announcement comes a day before a summit meeting in Minsk, where Ukrainian President Petro Poroshenko and Russian President Vladimir Putin are set to meet for the first time since early June. The AP reports that a column of Russian tanks and armored vehicles has crossed into southeastern Ukraine, but Russian Foreign Minister Sergey Lavrov has claimed no knowledge of the incursion. On Sunday Ukraine celebrated its independence day with a military march-past in Kiev, reports Reuters, only to have pro-Russian rebels respond by parading captured Ukrainian troops through separatist-held Donetsk.
The Times reports that fighting between militias, tribes and towns has destroyed Tripoli’s airport, and hundreds of people have been killed, in a regional struggle that threatens to become a prolonged civil war.
On Friday the Pentagon accused China of making threatening passes at a U.S. military aircraft in international airspace. The Post reports that the U.S. has filed a formal complaint with China about the incident, which occurred last Tuesday 135 miles east of Hainan island.
On Friday, the Miami Herald reported that an unidentified Navy nurse who refused to continue force-feeding hunger strikers at Guantánamo has been sent back to the United States and, according to Army Col. Greg Julian at the U.S. Southern Command, could be facing court martial.
Email the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and Facebook for additional commentary on these issues. Sign up to receive Lawfare in your inbox. Visit our Events Calendar to learn about upcoming national security events, and check out relevant job openings on our Job Board.

The Week That Will Be

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Monday, August 25, 2014 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Tuesday, August 26th at 12 pm: In a panel discussion on Tuesday, the Hudson Institute asks, What About Jordan: Does Regional Crisis Threaten the Security of a Longstanding American Ally? Panelists Lee Smith, Faysal Itani, Salameh Nematt, and David Schenker will discuss what the American government can do to help a key Middle East partner. For more information or to RSVP, visit here.

Wednesday, August 27th at 8 am: The second event of the 2014-2015 PONI Conference Series will be held August 27-28 at the Air Force Nuclear Weapons Center, Kirtland AFB, New Mexico The two-day conference will feature panels of presentations from young nuclear experts covering topics such as the nuclear triad and modernization, deterrence in the twenty-first century, arms control and verification, regional nuclear dynamics, and nonproliferation and nuclear security. The conference will also include a keynote address by Major General David Thompson, Director of Plans and Policy, U.S. Strategic Command and remarks from Major General Sandra Finan, Commander, Air Force Nuclear Weapons Center. 

Wednesday, August 27th at 8:30 am: The Center for Strategic and International Studies hosts a press briefing on the NATO Summit & President Obama’s Estonia Visit. Dr. Kathleen Hicks, Heather A. Conley, and H. Andrew Schwartz will speak. For more information, visit the CSIS event announcement.

Wednesday, August 27th at 10 am: Women in International Security will hold an event entitled Women, Peace and Security Legal Toolkit. The event will be an examination of how law can be used to empower women in post-conflict systems. Julie L. Arostegui, Stephenie Foster, Susan Markham, Sanam Naraghi-Anderlini, and Kathleen Kuehnast will speak. RSVP here.

Thursday, August 28th at 2 pm: Public Opinion and War: When and why does the American public support war? Do events, such as casualties or the prospect of victory matter? What sorts of arguments should hawks and doves make if they hope to win support for their views? Adam Berinsky, John Mueller, Jason Reifler, Trevor Thrall, and Justin Logan will tackle that topic at the Cato Institute. For more information or to RSVP, visit Cato’s website.

Read more »

DC District Court Fails to Recognize Official Acts Immunity for Former Indian Prime Minister

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Sunday, August 24, 2014 at 1:36 PM

On August 19, Judge Boasberg of the DC District Court ruled that former Indian Prime Minister Manmohan Singh enjoys immunity from suit for alleged human rights abuses of Sikhs in India while he was Prime Minister from 2004 to 2014, based on a Suggestion of Immunity submitted by the Executive branch. But the court held that Singh’s immunity as a former head of state extended only to his acts while he served as Prime Minister and not to acts committed while he previously served as Finance Minister from 1991-1996; the court thus allowed the suit to proceed with respect to actions Singh may have taken during the prior period. Surprisingly, the court did not refer to the longstanding position of the Executive branch (perhaps because the Executive failed to mention it in its briefs), and decisions of other courts, that former foreign government officials generally also enjoy immunity for their official acts while serving in any capacity, not just as heads of state.

In 2013, a group of Sikhs filed suit against Singh under the Alien Tort Statute and Torture Victim Protection Act while Singh was still Prime Minister.   In May 2014, the Justice Department filed a Suggestion of Immunity on behalf of Singh as a sitting head of state, based on a determination by Principal Deputy Legal Adviser Mary McLeod. Later in May, however, Singh was voted out of office in India. The Justice Department then filed a further brief arguing that, even though Singh was no longer a sitting head of state, nonetheless he still enjoyed immunity from suit because the Executive branch “has not withdrawn [its previous] assertion of immunity” and the previous assertion “remains binding in this litigation.”

Based on the Executive branch’s Suggestion of Immunity, Judge Boasberg accepted as “dispositive” that Singh was absolutely immune from suit during the period he was Prime Minister. He held further that “As a now-former head of state, [Singh] retains ‘residual immunity’ for official acts taken while he served in that capacity.” The court then went on quote from the Suggestion of Immunity the Executive Branch had submitted in 2011 in on behalf of President Paul Kagame of Rwanda in another ATS/TVPA case, where the Justice Department had said that “after a head of state leaves office[,] that individual generally retains residual immunity only for acts taken in [an official capacity as head of state] and not for alleged acts predating the individual’s tenure in office.’” Judge Boasberg concluded: “While Singh’s alleged acts as Finance Minister are not “private” per se, they did not occur in the course of his official duties as head of state; accordingly they are not encompassed within the purview of head-of-state immunity.”   And he added that, while Singh might still be “protected by other immunities not yet asserted by the Government”, there are “…no grounds for a suggestion of immunity as to acts Singh took as Finance Minister….”  Read more »

The Foreign Policy Essay: China’s ADIZ in the East China Sea

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Sunday, August 24, 2014 at 10:00 AM

Editor’s Note: China’s establishment last November of an Air Defense Identification Zone (ADIZ) shook many observers, who feared it was a first step in a more aggressive Chinese foreign policy. Here at the Foreign Policy Essay, we’ve already taken an early look at the issue. However, as the months have passed and a crisis has yet to emerge, analysts are beginning to take a second look at the issue. Eric Heginbotham, a senior political scientist at the RAND Corporation, contends that the reasons for China’s decision to establish the ADIZ are often misunderstood and that U.S. policy needs to focus more on China’s actual behavior, not the zone itself.

***

Reporting on China’s Air Defense Identification Zone (ADIZ) in the East China Sea, which it rolled out in November 2013, has been highly (if understandably) skewed. (ADIZs are unilaterally declared areas that stretch beyond territorial airspace within which states impose reporting requirements on aircraft for purposes of national defense.) China’s ADIZ stretches into the East China Sea, beyond Japan’s designated “mid-point line,” towards the Ryukyu Islands, and covers the contested Senkaku Islands (known as the Diaoyu Islands in Chinese). Global media coverage tends to be event driven, and the “event” in this case was China’s establishment of the ADIZ, which escalated an already tense situation between Japan and China. While Beijing itself did a poor job of explaining its move, its credibility would have been suspect in any case, given its assertive behavior in the South and East China Sea and the broader (if less defined) suspicion of China’s system of government. Japan, on the other hand, has a well-oiled public relations machine that has been very active on all activities undertaken by the People’s Republic of China (PRC) related to the East China Sea. Heginbotham photo with borderGiven all this, it is little wonder that the ADIZ’s creation has been interpreted in the context of China’s expanding power and apparent ambition—and thus seen as a threatening move. No doubt, growing Chinese power has been an important driver of its actions in the East China Sea, since China is increasingly able to patrol its offshore areas. But there are other background conditions that have also shaped Chinese actions, chief among them Japanese actions within Japan’s own ADIZ and Beijing’s perception of a double standard. This essay seeks to explain Beijing’s perspective (though not to endorse its actions). China’s ADIZ is not a challenge to international rules or precedents. It will, however, almost certainly increase the number of Chinese combat aircraft that will be patrolling and conducting intercept missions in the East China Sea, which will challenge the ability of all sides to avoid and manage crises. Rather than denying China’s right to establish an ADIZ, the United States and Japan should focus on central issues: persuading China that it must avoid dangerous intercept procedures; seeking agreement on “rules of the road” for aerial interactions; and deterring China from attempting to use the ADIZ (or any other means) to unilaterally change the status quo on the Senkaku Islands. Read more »

Abdul Razak Ali Replies to His Own Cert Petition

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Saturday, August 23, 2014 at 4:00 PM

Here’s a novelty: Guantanamo detainee Abdul Razak Ali—whose case we have written about a fair bit—has filed a reply brief in response to his own cert petition. Here’s how it opens:

Petitioner Abdul Razak Ali respectfully submits this reply brief in further support of his petition for certiorari with respect to the Decision and Order of the Circuit Court of Appeals for the District of Columbia which affirmed the denial of his petition for habeas corpus by the District Court for the District of Columbia. In his petition for certiorari, Petitioner raised arguments based solely on issues of undisputed fact: he was arrested in Pakistan, not in Afghanistan, he had nothing to do with the September 11th attacks or terrorism, and he was not engaged in hostilities against the United States or its allies at any time. Petitioner’s “malfeasance” that apparently warrants his life imprisonment without charge was simply an eighteen day stay in the same guesthouse as a man who the government once believed to be affiliated with al-Qaeda, but, as the evidence showed below, is now no longer believed by the government to have been associated with al-Qaeda.

Both the reply brief and the cert petition, for reasons on which I will not speculate, spell defendant Barack Obama’s first name “Barrack.”

U.S. Airstrikes Against ISIS in Syria? Possible International Legal Theories

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Saturday, August 23, 2014 at 3:04 PM

In the wake of Thursday’s statements by Joint Chiefs Chairman Martin Dempsey and Friday’s comments by Deputy National Security Adviser Ben Rhodes, it sounds like the U.S. Government is at least considering whether to conduct air strikes against ISIS in Syria. A decision to do so clearly is not a done deal. As the Times notes, “From the start of the Syrian civil war, Mr. Obama’s response has been marked by a pattern of heightened public statements and indications of stepped-up involvement, following by far less action than suggested.” Other options on the table include arming and training other forces fighting ISIS, such as Syrian Kurds and moderate Syrian rebel forces.

But if U.S. officials are floating trial balloons about air strikes, that means international lawyers inside the government are putting pen to paper to analyze whether and how such actions would be compatible with international law. What will that memo likely say? I expect the analysis would discuss the following options.

Security Council Resolution. A UN Security Council Resolution would provide the clearest basis for action. This option was a dead letter back in July 2012, when Russia and China refused even to approve economic sanctions against Assad, let alone the use of military force. One question would be whether the politics on this have changed: there might be some reason to think that Assad is coming under pressure from his own supporters to take on ISIS. It seems unlikely that Assad would affirmatively embrace a UNSCR authorizing a coalition of the willing to target ISIS in Syria, but if Russia senses that Assad might tolerate such action, the Security Council dynamics could change. Then again, the U.S.-Russia relationship is so toxic right now that this option seems remote.

Consent.  Second, Assad could secretly give consent to foreign governments (including the United States) to use force against ISIS in Syria. This, too, seems improbable, given the longstanding animosities between Assad and various Western governments. But having one government give secret and reluctant consent to another to conduct strikes in its territory is not without precedent. As readers know, the Pakistani government reportedly consented to U.S. drone strikes in Pakistan for years, while publicly condemning those strikes and rejecting allegations that it had consented. This type of situation raises questions about the quality and integrity of the consent, but it might nevertheless be on the table.

Self-defense. Here there may be three categories of self-defense arguments: basic self-defense, anticipatory self-defense, and collective self-defense. Read more »

Squaring a New AUMF for ISIL with the President’s NDU Speech…

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Saturday, August 23, 2014 at 1:57 PM

As Bobby has noted, Karen DeYoung of the Washington Post is reporting that the Administration is now considering more seriously whether to ask Congress for authorization to use military force against the Islamic State.  Jack has argued persuasively why it would make sense for the President to seek a congressional mandate. And it is worth noting that, as a Presidential candidate, Senator Obama told Charlie Savage in 2007 that “military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.” (He also said that “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”)

If the Administration does decide to seek congressional authorization for the use of military force against ISIL, one question is how the White House will square that effort with the President’s NDU speech last year, where the President said with respect to the 2001 AUMF “I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.  And I will not sign laws designed to expand this mandate further.”

Up to now, of course, the President has done virtually nothing to “engage Congress and the American people” with respect to the 2001 AUMF. This is not surprising, given the political polarization in Congress.  Administration lawyers have often had to engage in legal gymnastics in order to rely on the 2001 AUMF to justify use of force against al Qaida affiliates in Yemen and Somalia, but the White House has (understandably) concluded up to now that it is easier simply to continue to muddle through rather than try to revise the AUMF.  (In 2010, I wrote an op-ed in the Washington Post calling for updating the AUMF, but subsequently concluded myself that it was politically impossible.)

If the President does now call for a revision of the 2001 AUMF to authorize the use of force against ISIL, will he call it a mere “refinement” (especially if he asks for authority to use military force in both Iraq and Syria)? That would sound a lot like an expansion to me, but the President has said that he would not sign any law designed to expand the AUMF.

And, whether mere refinement or a cloaked expansion, a revision would certainly not be a “repeal” of the 2001 AUMF. But that was an aspirational bone thrown to the left wing of the President’s base, who apparently believe that if the U.S. Government renounces its legislative authority to use military force against terrorists, we can declare the armed conflict with Al Qaida (or “War on Terror”) to be over and the country can devote itself full-time to more peaceful endeavors (with perhaps an occasional minor use of force here and there to defend the country, based solely on the President’s constitutional powers). (For an extreme version of this argument, see this idealistic New York Times editorial from March 2013 entitled “Repeal the Military Force Law.”) It will be interesting to see whether the White House will continue gamely to assert the President’s stated desire to repeal the 2001 AUMF, while at the same time seeking to “refine” it. Or perhaps the White House will simply side-step the 2001 AUMF (and the President’s NDU speech) altogether by calling for a new stand-alone AUMF against ISIL (perhaps replacing the 2002 AUMF against Iraq), while leaving the 2001 AUMF on the statute books, to be refined (or repealed) another day.

The Lawfare Podcast, Episode #88: Russia Breaking Bad and the Future of the International Order

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Saturday, August 23, 2014 at 1:55 PM

News broke yesterday that the Russian military has moved artillery units inside of Ukraine and that Russian troops are actively using them against Ukranian forces—a move with dramatic escalatory potential. At the same time, Ukraine appears to be closing in on the last Russian-backed rebel strongholds. As the crisis unfolds and the United States seeks to isolate Russia using a network of sanctions, important questions have arisen about Russia’s future role in the region and its relationship with the West. What is Russian President Vladimir Putin’s ultimate goal? Why, after so much effort to integrate into the global economy, is Putin choosing another path? Is Russia actually attempting to free itself of the Western dominated world order?

Earlier this week, the Brookings Institution hosted a panel discussion on the future of Russia’s place in the international order in the light of recent more aggressive turns in its foreign policy. Thomas Wright, fellow with the Project on International Order and Strategy (IOS), moderated the conversation with Brookings President Strobe Talbott, Senior Fellow Clifford Gaddy of Brookings’s Center on the United States and Europe (CUSE) and Susan Glasser, editor at Politico Magazine. They describe Putin’s worldview and subsequent strategy, and lay out the potential consequences of continued tensions for the global economy, coordinated counter-terrorism efforts, and the increasingly stressed non-proliferation regime.

For more commentary on Vladimir Putin and his rise, we recommend Strobe Talbott’s piece in Politico Magazine, which ran on Tuesday of this week.

Administration Response to GAO Report on Bergdahl

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Saturday, August 23, 2014 at 12:00 PM

Here’s the government’s response to the GAO report, to which Wells linked yesterday, concluding that the Bergdahl trade violated the law. A statement from Pentagon Press Secretary Rear Admiral John Kirby reads:

As Secretary Hagel has testified before Congress, the recovery of SGT Bergdahl was conducted lawfully. This decision was made after consultation with the Department of Justice.

The Administration had a fleeting opportunity to protect the life of a U.S. service member held captive and in danger for almost five years. Under these exceptional circumstances, the Administration determined that it was necessary and appropriate to forego 30 days’ notice of the transfer in order to obtain SGT Bergdahl’s safe return.

Along with the statement, the Pentagon also released this document, the administration’s response to the GAO’s questions on the law of the operation.

The Week That Was: All of Lawfare in One Post

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Saturday, August 23, 2014 at 10:00 AM

If U.S. involvement in Iraq increases, can discussion of the President’s war powers under Article II be far behind? Jack noted the politics at play in the lack of congressional authorization for the use of force against the Islamic State. He then presented the case for why the President should seek congressional support for U.S. operations in Iraq.

On Sunday, Bobby examined the President’s recent War Powers Resolution notification regarding U.S. airstrikes conducted in support of Iraqi and Kurdish efforts to retake control of the Mosul Dam. He compared this most recent letter to others he has sent to Congress with respect to the current situation in Iraq. John Bellinger later explained how War Powers resolutions are drafted.

Following the discussion of Article II powers and congressional authorization, Wells considered the War Powers Consultation Act of 2014, a bill which, after being introduced in January, “has seen no further action.”

Jack examined an excerpt from a New York Times piece about the unsuccessful operation to rescue American journalist James Foley; he noted the “absurdity of administration and DOD officials talking to reporters . . . about a classified operation, but insisting on anonymity because the operation is classified.”

Ben considered the Times’ recent articles on terrorist extortion and ransom payments and pointed out that, given the evidence, “the right answer is not to pay.”

John noted an Economist article on the use of lawfare against the British Ministry of Defence.

Matt Waxman shared a number of essays and articles he recommends for gaining understanding of the current situation between Israel and Gaza and the law of armed conflict.

Wells flagged a report by the Government Accountability Office, which found that the Department of Defense violated the 2014 Defense Appropriations Act in failing to inform Congress thirty days in advance of the release of five Guantanamo detainees in exchange for Sgt. Bowe Bergdahl.

Wells, Andy Wang, Jodie Liu, and Taj Moore analyzed a recently released brief submitted to the Foreign Intelligence Surveillance Court (FISC) in 2004 on the email metadata program.

Cody flagged two new documents released by the Office of the Director of National Intelligence (ODNI) in relation to the Foreign Intelligence Surveillance Act (FISA)’s Pen Register/Trap and Trace provision.

Ben studied a recently released Office of Legal Counsel (OLC) memo, which he found “suggestive” of the origin of the word “imminence” in the government’s legal justification for targeted killing.

Jane Chong highlighted two amicus briefs submitted separately by the Center for National Security Studies and the Electronic Frontier Foundation, American Civil Liberties Union (ACLU) and the ACLU of the Nation’s Capital in support of appellees in Klayman v. Obama.

Steve Vladeck shared an amicus brief he co-authored on behalf of the National Institute of Military Justice in support of Ali al-Bahlul. Jane then posted another amicus brief written on behalf of al-Bahlul by Professor David Glazier of Loyola Law School; she later flagged three more.

Ben highlighted a Wired interview with Edward Snowden conducted by James Bamford.

Stewart Baker brought us the Steptoe Cyberlaw Podcast, which featured a debate with Harley Geiger, Senior Counsel and Deputy Director for the Freedom, Security and Surveillance Project at the Center for Democracy and Technology, on Senator Patrick Leahy (D-VT)’s NSA reform bill.

In this week’s Foreign Policy Essay, Jonathan Pollack, a senior fellow in the John L. Thornton China Center and the Center for East Asia Policy Studies at the Brookings Institution, analyzed the Japanese Cabinet’s “constitutional reinterpretation” embracing collective self-defense.

And that was the week that was.

An AUMF for ISIL At Last? Questions Raised by the Post’s Account of the White House Debate

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Saturday, August 23, 2014 at 12:41 AM

The Washington Post reports tonight that the White House is actively considering whether to go to Congress to seek an explicit authorization to use force against ISIL. [UPDATE: see also the corresponding NY Times story, which focuses on the underlying policy debate rather than the law; it helps make clear that the legal debate reported in the Post comes about precisely because the administration in contemplating operations focused on degrading ISIL, not just defending US personnel in Iraq or preventing specific humanitarian disasters.] There are many interesting legal angles to the Post’s story on the legal elements, and I’d like to flag and comment on a few.

1. Geographic Scope

Not surprisingly, the article suggests that the contemplated AUMF would encompass both Iraq and Syria:

A mandate from Congress could provide domestic legal justification for the unlimited use of force against the Sunni Muslim group across Iraq and Syria, a senior administration official said.

It will be very interesting to see if any new AUMF is limited to Iraq and Syria, or if instead it might follow the 2001 AUMF model by omitting explicit geographic constraints. I’m betting the former, yet it’s not obvious that Syria and Iraq are the only places ISIL personnel might be (under conditions where a lethal strike might be desirable as a matter of policy). Might you eventually have some in Yemen, for example, given reports of AQAP signalling support to ISIL and given that AQAP has personnel with scarce and particularly-troubling bomb-construction skills? Of course, I would expect the administration to simply rely on its Article II authorities in that case, though once you’ve got an AUMF for ISIL explicitly limited to certain locations, Article II arguments to attack ISIL elsewhere get trickier…

2. Alternatives to an AUMF

The article suggests that there are two options on the table in addition to the AUMF:

The “range of options” for direct use of the U.S. military includes temporary authority under the War Powers Resolution, constitutional authority for emergency action to protect U.S. citizens, and “having that discussion with Congress” about a more open-ended authorization to combat the Islamic State, the official said.

Obama has ordered airstrikes in Iraq under the first option, good for 60 days until early October. The second option was used this summer to launch a failed rescue attempt of American hostages held by the Islamic State in Syria. The third would entail a debate with an uncertain outcome among lawmakers with widely divergent views on presidential powers and overseas military action.

I think the administration’s legal analysis may be somewhat lost in translation here, for the passages above appear to suggest that the administration thinks that the War Powers Resolution can be read as conferring affirmative authority to use force until the 60-day clock expires. The WPR itself explicitly disclaims such a reading of its clock provision, and it just doesn’t seem likely that the Obama administration would make such a claim here. It seems clear, in fact, that the administration’s position up to this point is that the airstrikes it has conducted have been based on a claim of inherent Article II power to use air power either to protect US forces and personnel on the ground in Iraq (first in Irbil (threatened by the approach of ISIL’s personnel) and then in Baghdad (threatened, ostensibly, by the consequences of a potential catastrophic breach of the Mosul Dam upstream)), or based on a novel claim to do the same to forestall acute humanitarian catastrophes (Mt. Sinjar, and again the Mosul Dam). The War Powers Resolution enters into the conversation insofar as US forces thus have been introduced into “hostilities” and the 60-day clock for getting statutory approval as a result began ticking. Put simply, Article II, not the WPR, is the ostensible affirmative legal basis here; the WPR is a potential long-term obstacle, not a short-term solution.

Of course, the 60-day clock is an obstacle that this administration blew past in Libya a few years ago, maintaining that the use of American combat air power in that setting just didn’t count as hostilities (or “war” insofar as the Declare War clause is concerned). Either the administration does not want to relive the criticism it got there, or it accepts that such arguments will not fly here given the factual differences (including, for example, the overt ground presence of uniformed US military personnel in roles involving operational support to host-state forces, even if not immediate participation in combat themselves). At any rate, they seem to consider the clock to be ticking this time around. From the article:

For its part, the administration expects to continue airstrikes in Iraq for the foreseeable future, although it is “mindful” that it will soon have to address the 60-day war powers restriction, the senior official said.

Of course, that reference to airstrikes in Iraq “for the foreseable future” should be enough on its own to drive the administration to seek Congressional approval, or for Congress (gasp!) to take up the question on its own. Read Jack’s powerful commentary, here.

3. Could they just invoke the 2001 AUMF?

I was surprised to read that this was getting serious discussion. Perhaps it’s not really serious discussion. Yet, the article reveals that this argument is under consideration too:

Authority for any military action, should it be seen as feasible and desirable, could theoretically be found under the existing 2001 Authorization for the Use of Military Force, or AUMF, against al-Qaeda.

“Three years ago, they would have clearly fit,” the senior administration official said of the Islamic State. But al-Qaeda’s Pakistan-based core announced last year that it had split with the group, objecting to its brutality against Muslims and declaration of an Islamic caliphate across Syria and Iraq. Now, officials are not certain whether that is a case worth making.

That’s probably not a case worth making. The passage is making the point that ISIL once was AQI, “al Qaeda in Iraq.” Think Zarqawi. AQI had long been resistant to direction and control from AQ’s ostensible senior leadership, and as the passage itself notes, in its ISIL incarnation it has had a formal and substantial rupture with that leadership. I won’t belabor the point; ISIL at this time does not fairly fall within the scope of the 2001 AUMF, either as part-and-parcel of “al Qaeda” nor as an “associated force” thereof. If the administration contends otherwise without evidence that ISIL has reconciled with AQ and in some fashion come back into its fold, it will fuel criticism that the 2001 AUMF lacks sufficient organizational boundaries. For all of these reasons, I doubt we’ll see any real effort to rely on the 2001 AUMF.

DOJ Releases 2 New Documents Regarding NSA’s Email Metadata Collection

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Friday, August 22, 2014 at 4:39 PM

There are two new NSA email metadata collection program documents on the DNI’s Tumblr site, IContheRecord.

From the site:

Following a declassification review by the Executive Branch, the Department of Justice released on August 6, 2014, in redacted form, 38 documents relating to the now-discontinued NSA program to collect bulk electronic communications metadata pursuant to Section 402 of the FISA (“PRTT provision”).  View the August 6, 2014 Document Release.

On August 21, 2014, the following two additional documents were released in relation to this same declassification review:

Declaration of George J. Tenet, Director of Central Intelligence, in Support of Pen Register/Trap and Trace Application

Report Regarding FBI Databases

The New York Times Equivocates on Ransoms

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Friday, August 22, 2014 at 3:38 PM

“There is no simple answer on whether to submit to terrorist extortion,” editorializes the New York Times today. Actually, there is a right answer—and it’s a relatively simple one. As the editorial acknowledges in the next sentence, “The United States and Britain refuse to pay ransoms, and there is evidence that hostage takers target victims based on the potential for a payout.”

That evidence is actually rather stark. As this excellent Times story reports:

Kidnapping Europeans for ransom has become a global business for Al Qaeda, bankrolling its operations across the globe.

While European governments deny paying ransoms, an investigation by The New York Times found that Al Qaeda and its direct affiliates have taken in at least $125 million in revenue from kidnappings since 2008, of which $66 million was paid just last year.

In news releases and statements, the United States Treasury Department has cited ransom amounts that, taken together, put the total at around $165 million over the same period.

These payments were made almost exclusively by European governments, who funneled the money through a network of proxies, sometimes masking it as development aid, according to interviews conducted for this article with former hostages, negotiators, diplomats and government officials in 10 countries in Europe, Africa and the Middle East. The inner workings of the kidnapping business were also revealed in thousands of pages of internal Qaeda documents found by this reporter while on assignment for The Associated Press in northern Mali last year.

In its early years, Al Qaeda received most of its money from deep-pocketed donors, but counterterrorism officials now believe the group finances the bulk of its recruitment, training and arms purchases from ransoms paid to free Europeans.

Put more bluntly, Europe has become an inadvertent underwriter of Al Qaeda.

The results?

Of the 53 hostages known to have been taken by Qaeda’s official branches in the past five years, a third were French. And small nations like Austria, Spain and Switzerland, which do not have large expatriate communities in the countries where the kidnappings occur, account for over 20 percent of the victims.

By contrast, only three Americans are known to have been kidnapped by Al Qaeda or its direct affiliates, representing just 5 percent of the total.

“For me, it’s obvious that Al Qaeda is targeting them by nationality,” said Jean-Paul Rouiller, the director of the Geneva Center for Training and Analysis of Terrorism, who helped set up Switzerland’s counterterrorism program. “Hostages are an investment, and you are not going to invest unless you are pretty sure of a payout.”

In other words, by paying ransoms, the European governments are incentivizing the kidnapping of their citizens, and the terrorists are unsurprisingly wise to this and responding according to the incentives. By contrast, there is relatively little incentive to kidnap Americans—and it happens much less. Yes, the kidnappers have less incentive to keep those Americans they do capture alive, and what happened to James Foley is a horrific atrocity. But one cannot address it by creating an incentive to capture more journalists.

The Times seems to acknowledge this, and it seems to recognize that it would be better if no country paid ransoms, yet it seems neither morally outraged by European choices on this matter nor to see that there actually is a simple answer to the problem here—albeit one with brutal costs for those unlucky nationals of countries who do not pay and yet get taken anyway. The right answer is not to pay.