Eviatar on Whether the Courts Can Make an Armed Conflict Determination on Grounds Not Specifically Advanced by the Government

In response to my post contending that the United States is party to an armed conflict in Yemen pitting AQAP and the government of Yemen against one another, Daphne Eviatar of Human Rights First writes in to advance the argument that the government should not be able to prevail on this position without actually affirmatively advancing it:

On Wednesday, shortly after the ACLU and Center for Constitutional Rights filed their new lawsuit, al-Aulaqi v. Panetta, Bobby set out a useful analysis addressing the question of whether the U.S. is actually at war with Yemen. But I believe he reached an unsupported conclusion.  At least, it’s not supported by the public record, and if it’s true, it’s an answer the U.S. government ought to be required to supply. Al-Aulaqi v. Panetta, filed on behalf of three U.S. citizen victims of U.S. drone strikes in Yemen (Anwar al-Aulaqi, his son, and Samir Khan), claims that the United States is not actually in an armed conflict in Yemen, and therefore the laws of war (international humanitarian law, or IHL) don’t apply. It also claims that even if they do, the U.S. is violating them. (That’s a point Human Rights First has made in the past as well, here, here and here.) Those are two really important questions, both of which the U.S. government should be required to answer. In Bobby’s view, the answer is simple: the U.S. is in an armed conflict in Yemen and therefore IHL applies. That means, of course, that targeted killing would be permissible -- consistent with IHL principles and rules of military necessity, distinction, proportionality and humanity -- of members of an opposing armed force or others while they are directly participating in hostilities. In Bobby’s view, the court can just assume this as fact and move on. But as Bobby notes, whether the U.S. is in an armed conflict with AQAP, or whether AQAP can legitimately be seen as a co-belligerent of Al Qaeda, are both highly controversial theories. He’s right that the strongest theory is that the U.S. has joined Yemen in an armed conflict with AQAP.  Still, if it’s going to justify killing people under that theory, shouldn’t the U.S. government be required to let us all know that? That’s no small matter.  While I realize that a judge in this case might wriggle out of it altogether by deciding the issues present a “political question” and are therefore nonjusticiable, I think the better response is to require the Justice Department to explain what theory of law it’s applying to kill United States citizens – and many more noncitizens – without due process.  If the United States government is going to go around secretly killing people in other countries on behalf of the American people, it seems a basic principle of democracy that it explain why it’s doing that. As Deborah Pearlstein points out in her recent post on Opinio Juris, President Obama in May took pains to say that “we are not at war with Yemen.”  While of course we’re not at war with Yemen, whose government is a U.S. ally, he’s obviously afraid to acknowledge that we may be at war in Yemen, because Americans are eager at this point to end the wars we’ve been in, and not to start new ones unnecessarily. All the more reason to require him (or Defense Secretary Panetta, in the context of this lawsuit) to come clean about what we are doing, who we are fighting, and why.  Information about many civilians the United States is killing along the way should also be part of that disclosure. Daphne Eviatar Senior Counsel, Law & Security Human Rights First

I obviously think the public record does in fact support my assessment (and would urge those who disagree to affirmatively articulate why they think the intensity and nature of the violence in Yemen, and US involvement in it, does not suffice).  But that's not really what the rest of Daphne's message is about.  Instead, I understand her to be making the argument that the courts should not make an "armed conflict" determination on a theory not advanced affirmatively by the government. That is a very interesting claim, and not one on which I was focused in my original post.  I suppose I was just assuming that readers would understand me to be proceeding from the assumption that the argument could and would be offered by the government as a fall-back position; I would certainly advise the government to at least do that, if not lead with the argument outright. But let's assume the government for whatever reason does not wish to advance it.  Is it now off the table as a legal matter? I'm skeptical.  As an initial matter, the general idea with making the armed conflict determination fact-dependent is in no small part to deny to governments the ability to avoid application of IHL by withholding their own formal recognition of its relevance.  And while this is a situation where the government presumably is affirmatively interested in invoking IHL, it still strikes me as out-of-place to make the determination depend on whether the government is willing to own up to the circumstances.  Indeed, as Daphne points out, it may be that the government for diplomatica and political reasons does not want to do so in this specific case; nevermind that it might hope to get the same result by other means, its formal position should not be dispositive. But in any event, I don't think that courts more generally are bound to consider solely the theories advanced by the parties, at least not when the available evidence supports a distinct legal analysis that the court might consider sua sponte.  On the other hand, in practical terms there may be something to Daphne's view: Whether a state of armed conflict exists--i.e., whether the field of application of IHL has been triggered--is a conclusion of law based on determinations of fact, and if the parties do not put forward the evidentiary basis for making the necessary factual determinations, the court is left with whatever can be encompassed in judicial notice, which very well might not be near enough to support a finding of armed conflict.   But this practical point will only matter if the government in fact fails to come forward with the evidence necessary to support this conclusion.  And the thing is, it is perfectly conceivable that it will fill the record with relevant information even if it does not choose to pursue this particular alternative theory (unless of course the government takes the position that this information is protected by the state secrets privilege, of course, in which case entirely different problems arise.).