Saturday, September 29, 2012

Sovereignty and Inapt Analogies

On Wednesday, the Wall Street Journal published a stunning article detailing the interaction between the United States and Pakistan—the CIA and the ISI, really—that the United States interprets as Pakistani consent for drone strikes.  The CIA faxes a geographic description of where strikes will take place.  Pakistan does nothing—previously, the ISI would fax a response acknowledging receipt of the description.  The United States effectively equates its notice with Pakistani consent and goes forth with drone strikes.  It bear emphasis here that Pakistan does take positive steps that indicate consent, such as clearing airspace in the region described in the faxes.  That said, the question of what constitutes actual consent by one state for another state to violate the first state’s sovereignty is extraordinarily deep.  Lawfare and Brooking’s Benjamin Wittes offers this:
In many ways, the CIA here is only behaving towards Pakistan the way it behaves every day in briefing Congress on covert actions. Members of Congress listen to briefers and often stay silent so as to be able to criticize the operation if it goes bad and not be too implicated in it. The CIA, in turn, has learned to consider such silence to be the intelligence committees’ consent: The agency, after all, has given the committees the information they need to stop a program and they have not acted to do so. Here it is really treating the ISI the same way. (Never mind that the if the Pakistanis acted to stop the strikes, the U.S. would probably consider that evidence that the country was unwilling or unable to stop terrorist activity emanating from Pakistan’s soil—and consider that to be legal grounds for U.S. unilateral action on Pakistani territory.) . . .
 On the other had, there’s a long history in property rights disputes of flagrant assertions of right leading to legally recognizable claims–squatters who acquire residency rights, residents who over time acquire title, and the like. So whether implied consent has any legs is highly dependent on context.
For the moment, let us put aside the question of whether implied consent is sufficient consent for one state to authorize a violation of its sovereignty.  As noted, this is a deep question and requires, at the least, a discussion of the international community’s evolving understanding of sovereignty, and the debate between strong- and weak-sovereignty proponents—the debate that underlies the debate over R2P.

Instead, let us consider Wittes’ comparisons of supposed Pakistani permission for U.S. drone strikes to the interaction between the CIA and Congressional intelligence committees, and adverse possession.  Both comparisons are inapt and, with respect to adverse possession, Wittes clearly misunderstands its operation.

Wittes’ analogy between Congressional intelligence committees and Pakistan suggests that the CIA derives its authority to conduct operations in general from notifying Congress of an action and Congress failing to object.  But this is not correct.  The CIA’s authority to conduct operations—actually, the President’s authority to conduct covert actions—does not derive from prior notification to Congress met by Congressional silence.  Instead, the President’s authority comes from prior Congressional grant in a variety of acts including the National Security Act of 1947, as amended, and the Intelligence Authorization Act of 1991. 

Congressional notification of covert actions is an accountability mechanism but Congress’ reaction to the notification—silence or vociferous endorsements—does not change the legality of the covert action.  So long as the action satisfies the other legal requirements including a presidential finding, the notice is just that: notice.  Notice is necessary for the action to be executed but Congressional reaction—positive, negative, or neutral—is immaterial.  Congress could, of course, legislate to prevent or specifically authorize a given covert action.

In contrast, there is no supervening license to violate sovereignty in international law—with the notable exception of self-defense.  Instead, sovereignty is presumptively inviolable and international law’s overarching norm is non-interference.  So far as we know, Pakistan has not provided the United States with a broad license to violate Pakistani sovereignty.  In the absence of such a grant—and under extant international law—mere notice (acknowledged or otherwise) is insufficient.  Thus, Wittes’ Congress-Pakistan comparison is inapposite.

If Congressional silence upon notification has taught the CIA to treat silence as authorization in all situations regardless of the applicable legal regime then the CIA’s very capable lawyers have failed singularly in this instance.  That strikes me as unlikely.

Wittes’ analogy between adverse possession and authorization for drone strikes is similarly unpersuasive.  But unlike Congressional authorization contingent upon notice, which is a regime founded on actual authorization with notice acting as an accountability mechanism, adverse possession by its nature unauthorized.  Indeed, the term itself—adverse possession—suggests that it is possession without consent.  It is the process by which one person gains title to another person’s property through squatting.  But adverse possession requires hostile possession of another person’s property—once consent is given, the process of title acquisition via adverse possession is interrupted.  You see, not only does adverse possession not result in consent, consent is actually fatal to adverse possession.

While Wittes is most certainly correct that what constitutes consent is context dependent, analogies are only useful in so far as they share similar premises.  In employing these two inapt analogies, Wittes not only fails to elucidate the real issues of sovereignty implicated by U.S. drone strikes in Pakistan, he downplays—wrongly in my estimation—the serious concerns raised by the CIA’s novel practice.  

UPDATE: Greg Miller in the Washington Post reports Saturday afternoon that Yemen's President approves every drone strike launched in Yemen.  Such approval would be an example of actual consent.

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