In Probing Secrets: The Press and Inchoate Liability for Newsgathering Crimes (in the Spring 2009 issue of the American Journal of Criminal Law) Professor William E. Lee of the University of Georgia examines the legality of soliciting or possessing classified information. The issue became a controversial one in the wake of the American Israel Public Affairs Committee (AIPAC) spy scandal in 2005.  AIPAC lobbyists were charged with violating the Espionage Act by conspiring with a Defense Department official to pass classified information to reporters and Israeli government officials.  In May 2009, the government moved to dismiss the charges against the AIPAC lobbyists.  The New York Times reported at the time that government policy makers were “clearly uncomfortable” with the prospect of senior officials testifying under oath about the frequent use of leaks as a political communication technique.  Of course, journalists were also greatly relieved by the dismissal of those charges, because the incentives of soliciting leaks of classified information from administration officials would change dramatically if reporters could go to jail for performing their customary role as conduits to the public.

Current First Amendment doctrine suggests that reporters are allowed to passively receive newsworthy information even if it is illegally obtained by the source.  As Professor Lee points out, that interpretation of freedom of speech ignores important gray areas of inchoate crime.  “Is it illegal for a reporter to encourage the leaking of classified information by promising a government official anonymity? Is such an agreement a conspiracy?”

The silence of American jurisprudence on these questions seems somewhat mysterious given the decades of controversy regarding leaks in Washington.  Congress is constitutionally able to pass a law on this matter (thanks to United States v. Williams, 553 U.S. 285 (2008)), but it has so far chosen not to.  Professor Lee hypothesizes that Congress has not done so to this point because there is an unspoken political consensus that leaks are an important part of the democratic process.

Prosecutorial discretion plays a small role in preventing that consensus from getting out of hand, explaining why the AIPAC lobbyists (essentially working for the benefit of a foreign government) were initially prosecuted, while journalists like Bob Woodward are not charged for transmitting classified information.  However, even the AIPAC charges were dropped by the Justice Department, raising serious questions about when the government will prosecute those on the receiving end of classified information leaks.

The political effects of the substantive information transmitted through leaks often overshadow the damage that routine disclosure of such information does to national security.  Current global contingency operations against al-Qaeda, the Taliban, and affiliated forces do not seem to present the same kind of aggressive, unified foreign intelligence threat as was faced during the Cold War, and so there is a practical argument that the benefit of disclosure outweighs the costs to national security.  However, it seems inevitable that we will only realize that the balancing test has shifted once a particularly salacious leak has taken place.  Congress should remain conscious of the tradeoff and act accordingly.

Assassinating foreign leaders outside of an ongoing armed conflict is of questionable legality, even if doing so would prevent a broader war.  Humanitarian interventions such as the NATO bombings in Kosovo–acts deliberately aimed at saving lives–are prohibited by the laws of war, which do not differentiate between the motivations for acts of armed aggression across borders.   Why do the laws of war–including international humanitarian law (IHL) and international criminal law–in these and many other real and hypothetical cases forbid actions that could result in a net saving of lives?  Gabriella Blum, an Assistant Professor at Harvard Law School, examines that question in the Winter 2010 issue of the Yale Journal of International Law.  Ultimately, she concludes that international law should incorporate a humanitarian necessity exception that would legalize tactics and strategies aimed at saving lives.

The ostensible fundamental purpose of international humanitarian law is to minimize humanitarian suffering of combatants and civilians during the conduct of hostilities.  However, by neglecting to incorporate a humanitarian necessity defense into the relevant international agreements, IHL implicitly condemns some humanitarian acts that violate the letter of the rules while striving to meet their explicit purpose.  Blum explains that the moral rationale for that condemnation is either put in terms of deontology (blanket rules against certain acts in war that are inherently morally repugnant) or consequentialism (having the absolute rules results in more good than harm).

Arguments for broad rules in war stand on shaky grounds.  Blum argues that soldiers are inherently used as means for ends, which suggests the basic utilitarian moral framework of war.  As she puts it, “War is about committing evils and choosing between evils.”  Blanket prohibitions inevitably cause problems when those choices between evils emerge, particularly when a large but legal evil butts up against a lesser but illegal one.  In short, if IHL wants to save lives, it should not logically object to lesser, illegal evils.

The consequentialist arguments for absolute rules are more subtle.  Some argue that it is quite difficult to determine in the fog of war what course of action will be the most humane.  In the absence of certain knowledge, we should not allow combatants to gamble with human lives.  However, as Blum notes, the fact of uncertainty should act “as a risk to be weighed rather than . . . an absolute bar [to humanitarian actions].”  Also, there are inevitably cases where the information is more certain, and in those cases it would seem appropriate to allow some discretion to the combatants (subject to ex post scrutiny in IHL courts).  Blum answers similar arguments that allowing a humanitarian exception could lead to a “slippery slope” of condoning war acts by pointing out that such necessity defenses would always be subject to oversight.  Someone who tried to use them would still have to prove that they took the more humane option; they would not be able to simply plead the humane exception and get away with war crimes.

One final argument against Blum’s humanitarian exception is based on international institutions.  Given that the laws of war will have to be upheld by international organizations, it would seem ill-advised to introduce a fairly complicated standard-based law when very diverse judges and organizations will have to apply it.  One would think that crystalline rules would need less cultural translation or misunderstandings.  After all, everyone can understand “don’t kill civilians,” whereas calculations of lesser humanitarian evils might be subject to considerable disagreement by different judges.  Blum claims that those concerns, while legitimate, are overstated.  It may not be much more ambiguous to say “don’t kill civilians unless you’ll save more lives by doing so.”  Furthermore, having laws which are more fine-tuned to moral subtleties may result in an increase in respect for IHL which tracks better with real-life moral dilemmas.

Overall, Blum’s article provides a fresh take on a long-standing problem, and her proposals may very well eventually become an important part of international law.

Image courtesy of the BBC

Writing for the Yale Journal of International Law, Prof. Robert Sloane of the Boston University School of Law delves into the national security variant of the old debate about ends and means–the distinction and relationship between the concepts of jus ad bellum, the law governing resort to force, and jus in bello, the law governing the conduct of hostilities.  Since the introduction of the U.N. Charter, the two concepts have been separated: regardless of how a nation justifies its goals in a given conflict, it must adhere to the same set of in bello rules.  Sloane points out that this belief seems to give rise to obvious contradictions.  If Country X begins a war of conquest, its use of force could simultaneously be unlawful (because Country X had no right to resort to force under the jus ad bellum) and lawful (if Country X’s armed forces follow the rules, the jus in bello).

In his article “The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and Jus in Bello in the Contemporary Law of War,” Sloane examines several historical examples to illustrate the artificiality of modern distinctions between jus in bello and jus ad bellum.  The NATO air campaign against Serbia illustrates the issue in a manner particularly germane to current issues in Afghanistan.  NATO pilots would not fly below 15,000 feet, rendering them virtually invulnerable to anti-aircraft fire and simultaneously increasing the risk to Serbian civilians due to lack of visual confirmation of legitimate military targets.  Sloane argues that NATO’s ad bellum goal of halting the ethnic cleansing of Albanian Kosovars influenced the international community’s appraisal of in bello conduct.

Addressing another current events concern, Sloane points to the debate over whether the nature of terrorism can justify the use of torture.  Ultimately, the very fact that there is a debate over the issue shows that the ad bellum motivation to stop terrorism is muddying the ostensibly clear distinctions of in bello rules regarding treatment of detainees.

Finally, Sloane examines the use of nuclear weapons.  The International Court of Justice ruled in 1996 that jus in bello prohibited the use of nuclear weapons–except when the survival of a state is at risk.  Thus, again, the ad bellum consequences are seen to justify in bello conduct.

Sloane describes the modern rule as a “double proportionality” standard.  The initial use of force has to be proportionate relative to the asserted reason for war (casus belli).  In subsequent retaliatory strikes, the use of force has to minimize civilian harm in a way that would be proportionate to the concrete and direct military advantage anticipated.  Of course, the justification of a concrete and direct military advantage has to refer back to the jus ad bellum, making every action in war revolve around the original casus belli to some extent.

Ultimately, Sloane gives the fairly realist justification that the dualism between jus ad bellum and jus in bello serves the admirable goal of first trying to prevent wars and, given the inevitable failure of the international community to always succeed in that endeavor, restraining both sides so as to minimize the killing.  Allowing exceptions based on ad bellum judgments will lead to a general lack of respect and, subsequently, abandonment of in bello rules.

Sloane’s article is a thought-provoking look at the ends and means debate, but its conclusion seems somewhat forced.  Sloane makes a utilitarian justification for the ad bellum/in bello distinction even though he himself excellently reveals the distinction to be less than logically rigorous.  The realist justification–that the rule can still be useful even if it does not make much sense–seems to be at best an empirical claim lacking in rigorous study.  It would be nice if the dualism prevents belligerent powers from using immoral ad bellum justifications.  However, as advocates of Israel or the NATO action in Afghanistan would quickly point out, the dualism is too blunt an instrument to achieve that end if it prevents countries with legitimate reasons for conflict from taking necessary but costly military actions.

Regardless of whether you agree with Sloane’s conclusion, his piece is a thorough and thoughtful examination of a vitally important issue.