Al-Bahlul to D.C. Circuit: OLC Memo Further Undermines USG Position on Appeal

The OLC Memo begins its analysis with the U.S. Code. It concludes that no statute forbids the use of lethal force or lacks an implied exception for the “public authority justification.” OLC Memo, at 19. It then evaluates whether the public authority justification is satisfied by lawful combat operations. “In determining whether the contemplated DoD operation would constitute the ‘lawful conduct of war’ … we next consider whether that operation would comply with the international rules to which it would be subject[.]” Id. at 23. It notes the DoD’s compliance “with the rules governing targeting in a non-international armed conflict – namely, international humanitarian law, commonly known as the law of war.” Id. at 28. And it concludes that the operation would be lawful because it “would comply with international law, including the laws of war applicable to this armed conflict[.]” Id. at 30. Conspicuously absent from this analysis is any reference to a “U.S. common law of war” or to the archive of Civil War-era documents that ostensibly define it. Instead, the government assesses the legality of its conduct under the law of war using the established sources of statutory and international law that this Court correctly relied upon in Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012). Nothing in the OLC Memo suggests that the government believes a domestic common law of war modifies those authorities or even exists. This Court should not, therefore, create one to save a conviction in a criminal case.