CIA on the Ground in Libya

Well, the question of whether the U.S. has personnel on the ground in Libya has been answered. The NYT has an article out about the presence of CIA operatives in the country gathering intelligence on the political dynamics among the rebels, and, I assume although this isn't stated in the article, provide targeting support to U.S. air power.

I guess this fact was obvious before the article. There had to be people on the ground directing U.S. air strikes. The two obvious choices would be U.S. special operations forces or the CIA, and while it isn't necessarily out of the question that special ops are in Libya the use of CIA operatives allows the President to keep his promise that U.S. troops wouldn't be there.

The question that bothers me is: How did the NYT get its information? The use of CIA personnel in Libya was authorized by a presidential finding authorizing covert action, and covert action by definition is never meant to be traced back to the U.S. I just hope that the NYT got its information through some source other than an American government official.

Libya Isn't a War Because Libyan Soldiers Can't Shoot Back?

I just read this short post by Harvard Law Professor Mark Tushnet positing an interesting argument for why the U.S.'s intervention in Libya is not a war requiring congressional authorization. Tushnet argues that U.N. Security Counsel Resolution 1973 makes it unlawful for Libyan soldiers to retaliate against coalition forces, and that because the jus ad bellum principle requires lawful retaliation for a war to exist, the action taken in Libya is not a war.

It is an interesting argument, but it seems to be completely absurd. It is illegal for a Libyan soldier to fire at coalition forces that are trying to kill him? How does that not violate another principle of international law - the right of a sovereign to defend itself? Yes, there is a Security Council resolution granting its forces the right to set up a no-fly zone and take other measures to protect Libyan citizens; however, a reading of the resolution does not explicitly prohibit Libyan forces from fighting back. That might be an implied condition of the resolution, I'm not sure because my knowledge of that particular area of the law is lacking. Even so, I don't see how UNSCR 1973 can strip the right of a country's armed forces to protect its homeland and make it illegal for them to fight back.

While I agree with Tushnet's ultimate point - that the Libyan intervention is not a war - I've got to disagree with his argument and go with my original argument that it isn't a war because the scale and nature of U.S. involvement is not yet sufficient to make it one.

Bobby Chesney has a more informative post about this at Lawfare.

New FBI Miranda Guidelines

The New York Times has published the text of the new FBI guidelines for "custodial interrogation" of "operational terrorists inside the United States." Objective #3 appears to give FBI agents particularly wide latitude in what topics can be discussed in these interrogations. Questions about operational financing (as Bobby Chesney suggested)? Questions about general command and control infrastructure? Questions like these are certainly important from an intelligence standpoint, but may not be allowable under the public safety exception.

These new rules are bound to be tested in court at some point, and I'd say it is likely that the Supreme Court will, at some point in the future, deal with Miranda's "public safety" exception as it relates to domestic terrorism. Of course, Congress may beat them to the punch, but even then the Supreme Court will likely rule on any codification of the exception at some point as well.

New FBI Miranda Guidelines for Domestic Terrorism Cases

The Wall Street Journal is reporting that the FBI is issuing new rules for agents regarding the reading of Miranda rights to suspects in domestic terrorism instances. This issue was significant in the case of Faisal Shahzad (the Times Square bomber) and Umar Farouk Abdulmutallab (the underwear bomber). In both cases federal agents interrogated the suspects without reading them their Miranda rights which is normally required, however an exception exists to the Miranda rule allowing for questioning in the absence of a reading of the rights in instances of an imminent threat to public safety. The exception is well-recognized, but those calling out agents for their actions in these situations argue that the length of time they questioned the suspects violates the suspects' rights.

These new guidelines are for internal use at the FBI and not new federal law, but their creation is likely to reinvigorate the debate about whether Congress should pass a law codifying the public safety exception and setting up codified guidelines for how it can be used. I've written on this topic at the Progressive Fix before here and here.

The "War" In Libya

A lot is being made about the Obama administration's refusal to refer to the conflict in Libya as a "war." Jack Goldsmith believes the distinction between mere intervention and actual war is being drawn for legal reasons and Spencer Ackerman thinks it is flat out "deceptive." I'm going to disagree with both and say that the Administration isn't calling this a war because it isn't one - yet. Both Goldsmith and Ackerman recognize that there can and have been military actions that don't rise to the level of war, but don't give any guidelines as to why the activity in Libya exceeds the "war" threshold.

Ackerman, with whom I agree with on a lot of things, basically argues it is a war because the conflict is intensifying. Maybe so, but an escalation in activity doesn't make this a war. He states that the NATO intervention in the Balkans was a war, despite the fact that it was never referred to as such, based on the fact that the bombing lasted for 78 days. I'm inclined to agree with him on that point, but the air/naval bombardment in Libya has been going on for much less time.

Goldsmith isn't as pointed in his criticism of the characterization of this conflict. He points out his belief that the Administration is basing its characterization on Department of Justice memos written in relation to the interventions in Haiti and Bosnia that gave a legal basis for why those actions did not fall into the war category. In support of the proposition that neither the conflict in Haiti nor Bosnia constituted war, both of these memos cite, among other things, the presence of consent from the affected country and the low risk of substantial casualties or sustained hostilities. Goldsmith intimates that he's not buying that any of those circumstances exist in Libya. Clearly there is no consent from the government of the affected country since that is the target of the operation. However, Goldsmith believes that substantial casualties and the likelihood of sustained conflict exist.

I've got to disagree with both of these gentlemen. Goldsmith points to documents laying out a good legal framework through which to view the characterization of this conflict. He disagrees that the legal justification for avoiding the "war" tag in Haiti and Bosnia exists here. Ackerman seems to disagree with the characterization based on the escalation of activity. I think that the Haiti/Bosnia reasoning is still applicable in Libya. No, there is no consent from the Libyan government, but I don't think that it is a clear cut case that there will be substantial casualties or a prolonged involvement by the U.S. To the best of my knowledge the only loss the U.S. has suffered so far is a crashed F-15 which went down due to mechanical failure and not enemy fire. We are only a few days into the conflict, and while hostilities may be escalating, there is no definitive proof that we are committed to a long-term fight.

I don't know what threshold we have to cross before this intervention becomes a war, but I don't think we've crossed it yet. Without U.S. troops on the ground, and with air and sea bombardments just a few days old, I believe it is too early to be accusing the Obama administration of deceit by not labeling this action a "war."

Anne Coulter and Bill O'Reilly Talk about Radiation. Stupidity Ensues.

That tingling feeling you just got was the reemergence of something information and fascinating returning to your lives - this blog. That's right, I'm back. I'm gonna give this another shot and see how it goes. Last time around I tried to write too much about legal topics (snore), so this time I will try to write fewer entries about a wider range of topics.

Here's the return topic: Ann Coulter and Bill O'Reilly talking about Coulter's belief that elevated levels of radiation are good for you. So stop whining, Japan. Coulter's basis for this belief: 1) An unspecified number of scientists who do some reports on the possibility that elevated radiation could be beneficial; 2) Women tuberculosis who had chest X-rays; and 3) people who lived in a building in Taiwan built out of Cobalt 60 who didn't get as much cancer as other people.

To his credit, O'Reilly seems pretty skeptical. That is, until he attempts to disprove her theory by stating that radiation is clearly harmful because of the number of people incinerated by the bombs in Hiroshima and Nagasaki. Yes, Bill, it was the radiation that incinerated those people. Take a look for yourselves: