WHY A PRESIDENT CANNOT AUTHORIZE THE MILITARY TO VIOLATE (MOST OF) THE LAW OF WAR.

• Author: Dehn, John C.

TABLE OF CONTENTS INTRODUCTION 816 I. AMBIGUITY REGARDING LAW OF WAR COMPLIANCE 822 A. Department of Defense Guidance 823 B. Judicial Ambiguity 825 II. MILITARY TRIBUNALS, THE COMMON LAW, AND THE 829 PATH TO ARTICLE 18 A. The Mexican War Tribunals 830 B. The Civil War Tribunals 832 C. Toward the Uniform Code of Military Justice 837 D. The Uniform Code of Military Justice 840 III. THE SCOPE AND LEGAL EFFECT OF ARTICLE 18 843 A. Parsing the Text and Its Effect 845 1. Article 18 845 2. Instructive Article 21 Case Law 849 B. The Relevant "Law of War" 854 C. Punishable Conduct Under the Contemporary 856 Law of War 1. Customary Law and Individual Punishment 858 2. War Crimes 861 3. Other Punishable Conduct by an Enemy 863 IV. LAW OF WAR VIOLATIONS AND THE PUNITIVE ARTICLES 869 OF THE UCMJ A. Law of War Compliance as a Justification of Violence 871 1. The Source of UCMJ Defenses 871 2. Defenses and the Law of War 874 B. Contours of the Public Authority Justification Defense 880 1. Noncriminal Law of War Violations 880 2. Public Authority: Necessity and Reasonableness 881 C. Obedience to Orders 885 V. ARTICLE 18 AND PRESIDENTIAL AUTHORITY 886 A. Congress, the Armed Forces, and the 886 Commander-in-Chief B. Presidential Discretion and Practical Limits 891 CONCLUSION 896 INTRODUCTION

As a candidate, President Trump said that he would authorize waterboarding and "much worse," that he believes "torture works," and if not, "they [referring to 'terrorists'] deserve it anyway, for what they're doing." (1) After his inauguration, the President said he would defer to his Secretary of Defense and Central Intelligence Agency (CIA) Director about the need for torture, but that "[i]f they do wanna [sic] do [it], then I will work toward that end. I wanna [sic] do everything I can within the bounds of what you're allowed to do legally." (2) Torture is an international war crime in both international (3) and non-international (4) armed conflict as well as a violation of the War Crimes Act, which is a generally applicable federal criminal law. (5) These statements therefore suggest that the President might seek an exemption from applicable federal criminal laws and simply ignore international law prohibitions.

Mr. Trump also stated that America should "take out the[] families" of terrorists, (6) a view he has not clearly renounced since becoming President. (7) Intentionally attacking innocent civilians in an armed conflict is an international war crime, (8) and also a violation of the War Crimes Act. (9) The legality of a family member's death under the law of war, however, depends upon the circumstances under which it occurs. For example, if family-member deaths were incidental to an attack upon a lawful target in an armed conflict, and not excessive in relation to the military advantage anticipated from that attack, they would likely be lawful. (10) Unlike torture, which is categorically prohibited, the legality of an attack and its consequences often depends upon a contextual analysis of facts that were or should have been known to the person ordering it. (11) Commentators have observed that the President's prior statements may lead to criminal accusations against U.S. service members every time family-member deaths occur unless he clearly disavows them. (12)

Previous presidential administrations have expressed different views regarding a President's authority to authorize violations of international or domestic law in war. Relying on the commander-in-chief power, the George W. Bush Administration asserted conditional constitutional authority to violate not only the torture prohibition of international law, but also the generally applicable federal criminal statutes implementing it. (13) The Obama Administration claimed that its policies complied with applicable international and domestic law, (14) but did not clarify the extent to which either bind the President in his role as Commander-in-Chief. Obama claimed to have developed "a policy framework to ensure that... the United States not only meets but also in important respects exceeds the safeguards that apply as a matter of law in the course of an armed conflict." (15) He never clarified whether the Constitution or other domestic law made this "policy framework" obligatory or whether the "safeguards" to which he referred included international law of war obligations. (16)

Ambiguity regarding a President's obligation to comply with international law, including the law of war, arises from general uncertainty about the relationship of international law to the Constitution and laws of the United States. (17) Although international legal norms are always obligatory from the perspective of international law, the extent to which they are obligatory or enforceable in the U.S. legal system is not always clear. (18) Courts and commentators have offered various theories about the circumstances under which international treaty or customary norms either are or become obligatory in domestic law and enforceable in federal courts. (19)

Because of this ambiguity, commentators analyzing the President's war powers take diverse approaches to the issue of whether a President must comply with the law of war. Some commentators argue that international law, including the law of war, is part of the laws that a President is constitutionally obligated to "take Care" to "faithfully execute[]." (20) Other commentary addresses whether statutes authorizing military force should be interpreted to require compliance with the law of war. (21) I have elsewhere argued that legal theory, Supreme Court case law, and early American legal commentary support the view that customary laws of war inherently apply to armed conflicts with foreign entities and are enforceable in federal courts. (22) The focus of most such commentary however is whether, as a general legal matter, a President acting as Commander-in-Chief must comply with applicable international laws of war.

This Article more narrowly focuses on congressional regulation of the military, specifically, the extent to which Congress requires the military to comply with the law of war in its disciplinary code, the Uniform Code of Military Justice (UCMJ). Article 18 of the UCMJ vests military criminal courts, called courts-martial, with "jurisdiction to try persons subject to [the UCMJ] for any offense made punishable by [the UCMJ]" and also "to try any person who by the law of war is subject to trial by a military tribunal and [to] adjudge any punishment permitted by the law of war." (23) This Article explains how these jurisdictional grants are complementary and effectively implement most of the law of war in U.S. military criminal law. Stated concisely: Article 18 empowers courts-martial to identify and punish (1) law of war violations denominated war crimes by international law, (2) certain activities by or on behalf of an enemy for which the law of war provides no immunity from punishment, and (3) any other law of war violation by U.S. service members or any civilians accompanying them that entails or results in a crime under the UCMJ. (24) In other words, both service members and any civilians accompanying them in an armed conflict may be punished for a law of war violation, as such, or a UCMJ offense, such as murder and assault, (25) that are entailed in or result from a law of war violation. (26)

This Article then addresses why this implementation of the law of war in the UCMJ limits the President's authority as Commander-in-Chief. Because Congress has plenary constitutional authority to regulate the armed forces, particularly in matters of discipline, (27) the UCMJ necessarily limits the President's authority as Commander-in-Chief. Even assuming a President possesses some modicum of general constitutional authority to violate international law, no President may order or authorize the military to violate the UCMJ, including its binding implementation of the law of war. (28) As this Article will later explain, however, the law of war sometimes requires the exercise of judgment based upon available information. (29) This means a President might order or authorize acts that are technically illegal under the circumstances but would not be known or understood to be clearly unlawful by those ordered or authorized to engage in them. (30)

To explain the intricate relationship between the law of war and the UCMJ, this Article proceeds in five Parts. Part I demonstrates the current ambiguity in U.S. military administrative publications and federal judicial decisions regarding the extent to which U.S. law, including the UCMJ, requires compliance with the law of war. Part II reviews the evolution of military criminal tribunal jurisdiction that led to the adoption of Article 18 in order to clarify Article 18's purpose and effect. Part III considers three issues of statutory interpretation: the legal effect of Article 18, the correct understanding of the term "law of war" referenced in it, and two of the main categories of offenses for which it effectively creates municipal criminal offenses and authorizes punishment. Part IV explains the relationship of law of war violations to the crimes defined in the punitive articles of the UCMJ. It clarifies why almost all law of war violations may be punished by courts-martial, and why law of war compliance is necessary to provide a public authority justification defense for acts of war that entail or result in common crimes that are prescribed in and made punishable by the UCMJ. Part V explains why the binding implementation of the law of war in the UCMJ necessarily limits a President's authority to authorize or order most law of war violations by the members of the armed forces or by civilians accompanying the military in armed conflict. It then briefly examines the practical effect of this limitation.

A few initial caveats are necessary. First, this Article deals only with the law regulating the conduct of...