Category Archives: law

How law enforcement is being transformed into warfare

The New York Times reports: This town on the edge of the Appalachians has fewer than 5,000 residents, but the SWAT team was outfitted for war.

At 2:15 a.m. on a moonless night in May 2014, 10 officers rolled up a driveway in an armored Humvee, three of them poised to leap off the running boards. They carried Colt submachine guns, light-mounted AR-15 rifles and Glock .40-caliber sidearms. Many wore green body armor and Kevlar helmets. They had a door-breaching shotgun, a battering ram, sledgehammers, Halligan bars for smashing windows, a ballistic shield and a potent flash-bang grenade.

The target was a single-story ranch-style house about 50 yards off Lakeview Heights Circle. Not even four hours earlier, three informants had bought $50 worth of methamphetamine in the front yard. That was enough to persuade the county’s chief magistrate to approve a no-knock search warrant authorizing the SWAT operators to storm the house without warning.

The point man on the entry team found the side door locked, and nodded to Deputy Jason Stribling, who took two swings with the metal battering ram. As the door splintered near the deadbolt, he yelled, “Sheriff’s department, search warrant!” Another deputy, Charles Long, had already pulled the pin on the flash-bang. He placed his left hand on Deputy Stribling’s back for stability, peered quickly into the dark and tossed the armed explosive about three feet inside the door.

It landed in a portable playpen.

As policing has militarized to fight a faltering war on drugs, few tactics have proved as dangerous as the use of forcible-entry raids to serve narcotics search warrants, which regularly introduce staggering levels of violence into missions that might be accomplished through patient stakeouts or simple knocks at the door.

Thousands of times a year, these “dynamic entry” raids exploit the element of surprise to effect seizures and arrests of neighborhood drug dealers. But they have also led time and again to avoidable deaths, gruesome injuries, demolished property, enduring trauma, blackened reputations and multimillion-dollar legal settlements at taxpayer expense, an investigation by The New York Times found.

For the most part, governments at all levels have chosen not to quantify the toll by requiring reporting on SWAT operations. But The Times’s investigation, which relied on dozens of open-record requests and thousands of pages from police and court files, found that at least 81 civilians and 13 law enforcement officers died in such raids from 2010 through 2016. Scores of others were maimed or wounded. [Continue reading…]

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This climate lawsuit could change everything. No wonder the Trump administration doesn’t want it going to trial

Chelsea Harvey reports: A groundbreaking climate lawsuit, brought against the federal government by 21 children, has been hailed by environmentalists as a bold new strategy to press for climate action in the United States. But the Trump administration, which has pledged to undo Barack Obama’s climate regulations, is doing its best to make sure the case doesn’t get far.

The Trump administration this week filed a motion to overturn a ruling by a federal judge back in November that cleared the lawsuit for trial — and filed a separate motion to delay trial preparation until that appeal is considered.

The lawsuit — the first of its kind — argues the federal government has violated the constitutional right of the 21 plaintiffs to a healthy climate system.

Environmental groups say the case — if it’s successful — could force even a reluctant government to reduce greenhouse gas emissions and take other measures to counter warming.

“It would be huge,” said Pat Gallagher, legal director at the Sierra Club, who is not involved in the case. “It would upend climate litigation, climate law, as we know it.” [Continue reading…]

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Trump to inherit more than 100 court vacancies, plans to reshape judiciary

The Washington Post reports: Donald Trump is set to inherit an uncommon number of vacancies in the federal courts in addition to the open Supreme Court seat, giving the president-elect a monumental opportunity to reshape the judiciary after taking office.

The estimated 103 judicial vacancies that President Obama is expected to hand over to Trump in the Jan. 20 transition of power is nearly double the 54 openings Obama found eight years ago following George W. Bush’s presidency.

Confirmation of Obama’s judicial nominees slowed to a crawl after Republicans took control of the Senate in 2015. Obama White House officials blame Senate Republicans for what they characterize as an unprecedented level of obstruction in blocking the Democratic president’s court picks.

The result is a multitude of openings throughout the federal circuit and district courts that will allow the new Republican president to quickly make a wide array of lifetime appointments.

State gun control laws, abortion restrictions, voter laws, anti-discrimination measures and immigrant issues are all matters that are increasingly heard by federal judges and will be influenced by the new composition of the courts. Trump has vowed to choose ideologues in the mold of the late Supreme Court justice Antonin Scalia, a conservative icon — a prospect that has activists on the right giddy. [Continue reading…]

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Trump’s Muslim registry would not be illegal, constitutional law experts say

Politico reports: The day after Donald Trump won the White House last week, the American Civil Liberties Union wrote on Twitter that if the president-elect attempts “to implement his unconstitutional campaign promises, we’ll see him in court.”

But when it comes to the immigrant registration program that would target Muslims entering the United States — outlined Wednesday by an adviser to Trump’s transition team — three constitutional lawyers say the ACLU won’t have much of a shot before a judge.

Kansas Secretary of State Kris Kobach, known for his hard-line stance on immigration, told Reuters in a story published Wednesday that he has been in regular contact with Trump’s immigration advisers and that the president-elect’s team is considering a system modeled after a controversial one implemented in the months after the Sept. 11, 2001, terrorist attacks. It fulfills Trump’s promise of “extreme vetting” for immigrants from countries affected by terrorism, a threshold he has yet to flesh out more fully.

That program, labeled the National Security Entry-Exit Registration System, required those entering the U.S. from a list of certain countries — all but one predominantly Muslim — to register when they arrived in the U.S., undergo more thorough interrogation and be fingerprinted. The system, referred to by the acronym NSEERS, was criticized by civil rights groups for targeting a religious group and was phased out in 2011 because it was found to be redundant with other immigration systems.

Robert McCaw, director of government affairs for the Council on American-Islamic Relations, said a reinstitution of NSEERS would be akin to “just turning back the clock.” CAIR will lobby heavily against the system as not only discriminatory but also ineffective, McCaw said, if it ends up being proposed by the Trump administration.

He also accused Kobach, an architect of the original NSEERS program when he was with the Justice Department under the George W. Bush administration, of having “a long ax to grind with the Muslim community.”

“NSEERS and registries like it are totally ineffective and burdensome and they’re perceived by Muslims and other minorities as just being a massive profiling campaign that, in the past, targeted Muslim travelers solely based on their religion and ethnicity,” he said. “When every country on that list happens to be a majority-Muslim country, it is religious profiling. Because there are threats from other nations and other communities and groups that don’t make it on NSEERS.”

But a program like NSEERS would likely pass constitutional muster before a judge, multiple experts said, in part because it already has. The system was never struck down by a court in the nearly nine years it was in place. [Continue reading…]

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Sovereign citizen fears realized in Baton Rouge shooting

CBS News reports: Kansas City native Gavin Eugene Long, who died on his 29th birthday on Sunday after ambushing and killing three Baton Rouge police officers, said in online postings that he didn’t want to be affiliated with any group.

Long was, however, a member of a group involved in the sovereign citizen movement.

Since 2011, the FBI has considered sovereign citizens “a growing domestic threat to law enforcement.” In a bulletin, the agency wrote that they consider “sovereign-citizen extremists as comprising a domestic terrorist movement.”

Simply put, sovereign citizens believe themselves to be above the law of the land. Their reasons vary, but they don’t believe they have to do things like pay taxes or respect law enforcement officials, because in their minds all governments are operating illegally.

The movement’s most high-profile member to date has been Terry Nichols, the accomplice in the 1995 Oklahoma City bombing.

According to the Kansas City Star, Baton Rouge shooter Long “declared himself a sovereign in records filed with the Jackson County recorder of deeds last year.”

Specifically, Long said he was a member of the Washitaw Nation of Mu’urs. J.J. MacNab, a fellow at George Washington University’s Center for Cyber and Homeland Security, told the Star that the group believe themselves to be native of the North American continent and therefore about the laws of any country, state, or city. [Continue reading…]

 

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Decriminalize all drugs, business and world leaders tell UN

The Guardian reports: A British billionaire, three former presidents and a renowned Aids researcher have called for all drugs to be decriminalized at a press conference that was sharply critical of the United Nations’ latest drug policy agreement, adopted this week.

Leaders of the Global Commission on Drug Policy said the UN’s first special session on drugs in 18 years had failed to improve international narcotics policy, instead choosing to tweak its prohibition-oriented approach to drug regulation.

“The process was fatally flawed from the beginning,” said Richard Branson, the head of the Virgin Group, adding that it may “already be too late” to save the international drug law system.

This week’s United Nations general assembly special session, UNgass, clearly displayed the deep divisions between member states over narcotics: while a growing number of countries, including several states in the US, have moved towards decriminalizing or legalizing drugs, others continue to execute people convicted of drug crimes. Three UN conventions prohibit drug use that is not medical or scientific.

The meeting, held Tuesday through Thursday in New York City, was billed as a forum to debate drug laws, called for by Mexico, Colombia and Guatemala in 2014. All three countries suffered disproportionate violence from cartels controlling drug supplies to the north. In Mexico alone, the government estimates 164,000 people were the victims of homicide related to cartel violence between 2007 and 2014. [Continue reading…]

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America’s asylum policy is broken

Elizabeth Rubin writes: I recently received a phone call from Alabama. It was Samey Honaryar, an Afghan who had worked as an interpreter with the United States military and had fled Taliban persecution hoping to find asylum here. Samey is not accused of committing any crime. Yet for nearly a year, he’s been locked up in Etowah County Detention Center, among the worst and most remote of immigration detention centers, with little access to lawyers or medical attention.

“I cannot take it anymore,” said Samey, who was planning a hunger strike. “I served this country. I risked my life for this country, and this is how I’m repaid.”

I have reported from Afghanistan frequently since 2001, and I know that interpreters are an essential conduit into a culture easily misread by foreigners. Nearly every translator I’ve worked with has saved my life. But once they choose to work for the military, their job becomes a political act, making them marked men and women for the Taliban.

At a time when Europeans and Canadians are sheltering over a million asylum seekers, many from conflicts created by United States policies, Samey’s treatment demands attention. Documents and witnesses show that Samey risked his life for American soldiers. But he has been cast into immigration purgatory nonetheless, his troubles caused by a toxic mix of bureaucracy, fear, prejudice and, most poignantly, his naïve faith in American honor. [Continue reading…]

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Zuma court ruling: South Africans witness a massive day for democracy

By Hugh Corder, University of Cape Town

The accountability of public governance in South Africa has come a long way since 1994. When the transitional constitution was hammered out in negotiations in 1993, the primary consideration was to establish an unshakeable commitment to government under law in terms of a binding constitution.

Founded on the “rule of law”, this means that no one is above the law and that everyone is formally equal before the ordinary courts. No-one, not even the president, may take the law into their own hands. One of the founding values of the constitution is the:

… supremacy of the constitution and the rule of law.

The brand of democracy enshrined in the final constitution of 1996 emphasises participation by the people in a multi-party system of democratic government, to achieve “accountability, responsiveness and openness”.

Recognising the democratic deficit that South Africa faced because of the ravages of apartheid, additional mechanisms were introduced to strengthen participative democracy and popular accountability. One of them was the establishment of the office of the Public Protector.

The Constitutional Court’s judgment in Economic Freedom Fighters and Democratic Alliance v The Speaker of the National Assembly, the President and Others represents the exercise of judicial authority and expertise at the highest level by international standards.

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The right to sue the gun industry

In an editorial, the New York Times says: The world recoiled in horror in 2012 when 20 Connecticut schoolchildren and six adults were killed at Sandy Hook Elementary School by a deranged teenager using a military-style assault rifle to fire 154 rounds in less than five minutes. The weapon was a Bushmaster AR-15 semiautomatic rifle adapted from its original role as a battlefield weapon. The AR-15, which is designed to inflict maximum casualties with rapid bursts, should never have been available for purchase by civilians.

This is the eminently reasonable point that the parents of the 6- and 7-year-old students cut down at the school are now pressing in Connecticut state court. They are attempting to sue the gun manufacturer, Remington; the wholesaler; and a local retailer for recklessness in providing the weapon to the consumer marketplace “with no conceivable use for it other than the mass killing of other human beings.”

The question of whether the lawsuit will be allowed to proceed is at issue because Congress, prodded by the gun lobby, in 2005 foolishly granted the gun industry nearly complete immunity from legal claims and damages from the criminal use of guns.

The Sandy Hook parents argue that their suit should continue because that law, the Protection of Lawful Commerce in Arms Act, allows claims against companies — gun shop dealers, for example — if they knew or should have known that the weapons they sold were likely to risk injury to others. The parents contend that the maker of the Bushmaster is no less culpable because it knowingly marketed a risky war weapon to civilians. [Continue reading…]

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If the FBI concerns us, Apple should concern us even more

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Ned O’Gorman writes: whatever privacy is, it has to be in Apple’s eye primarily an engineering problem. Apple’s privacy is an engineer’s construct, even conceit. Many everyday senses of privacy follow this very limited idea of “data on my device.” Though I’ve entered vital data online numerous times, I would be more likely to feel a violation of privacy at an “unauthorized” family member thumbing through the pictures on my phone than a stranger using my date of birth and social security number to secure fraudulent credit. There’s something about Apple’s sense of “personal data” that gels very well with our sense that the gadgets we carry with us are “personal devices” rather than nodes in a massive economic and technological system.

But what about privacy’s co-dependents, especially the “public”? Apple’s narrow and problematic sense of privacy, if Apple sticks to it and if it were made the rule among tech companies, could have major public consequences, reshaping our experience of public life. First of all, Apple is explicitly pitting a forensic good, a good having to do with public justice, against the protection of privacy, and it is doing so in an absolutist fashion that undermines the delicate balance between certain rights and justice so vital to public life (just as the NSA did, but in reverse fashion).

In the case of Syed Rizwan Farook’s iPhone, we are talking about a specific and targeted forensic investigation — exactly what critics of the NSA call for. It is quite plausible that the data on Farook’s phone may be critical in helping to forensically reconstruct the networks (if any) of which Farook was a part. The knowledge that would come out of such an investigation may not end up preventing another similar attack. Nevertheless, it represents an immediate public good both with respect to our sense of justice and to making sense of indiscriminate acts of political violence that are, in their very performance, meant to cripple or otherwise alarm the citizenry. My point here is simply that legally sanctioned and legitimate forensic police work represents a public good, and Apple is now pitting that good against the good of privacy — and privacy as Apple defines it. [Continue reading…]

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The technical reasons the FBI’s claim, ‘just this one phone,’ is bogus

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Jonathan Zdziarski, an expert in iOS forensics, writes: For years, the government could come to Apple with a subpoena and a phone, and have the manufacturer provide a disk image of the device. This largely worked because Apple didn’t have to hack into their phones to do this. Up until iOS 8, the encryption Apple chose to use in their design was easily reversible when you had code execution on the phone (which Apple does). So all through iOS 7, Apple only needed to insert the key into the safe and provide FBI with a copy of the data.

This service worked like a “black box”, and while Apple may have needed to explain their methods in court at some point, they were more likely considered a neutral third party lab as most forensics companies would be if you sent them a DNA sample. The level of validation and accountability here is relatively low, and methods can often be opaque; that is, Apple could simply claim that the tech involved was a trade secret, and gotten off without much more than an explanation. An engineer at Apple could hack up a quick and dirty tool to dump disk, and nobody would need to ever see it because they were providing a lab service and were considered more or less trade secrets.

Now lets contrast that history with what FBI and the courts are ordering Apple to do here. FBI could have come to Apple with a court order stating they must brute force the PIN on the phone and deliver the contents. It would have been difficult to get a judge to sign off on that, since this quite boldly exceeds the notion of “reasonable assistance” to hack into your own devices. No, to slide this by, FBI was more clever. They requested that Apple developed a forensics tool but did not do the actual brute force themselves. [Continue reading…]

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The archaic All Writs Act the government is using to try and unlock a terrorist’s iPhone

The Washington Post reports: The U.S. government and Apple are locked in a legal battle over unlocking an iPhone used by one of the San Bernardino shooters. But a new court order is throwing a law that dates to the days of the founding fathers into a high-tech debate over digital security.

On Tuesday, a U.S. magistrate judge in California ordered Apple to provide “reasonable technical assistance” to the government as it tries to bypass security features built into its products based on an interpretation of the “All Writs Act.”

The original form of that statute dates to the Judiciary Act of 1789, centuries before the iPhone was a twinkle in Steve Jobs’s eye. In its current form, the law gives federal courts the power to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

Basically, it’s “a very short, cryptic statute” that gives the courts “all sorts of incidental powers” to require things not specifically covered by other laws, according to Stephen Vladeck, a law professor at American University.

In the past, the act has been used to compel non-parties — like service providers of tech companies — to help in criminal investigations, Vladeck said. But that help has typically been limited to straightforward requests, like activating or turning off particular features and using systems that are already in place, he said.

The new order is different: It tells Apple to help the government by creating an entirely new software to help investigators bypasses security features. “That requires Apple to go much further than any company has ever been required to go in one of these cases,” said Vladeck. [Continue reading…]

Last October, Jennifer Granick and Riana Pfefferkorn wrote: Under the government’s interpretation of the All Writs Act, anyone who makes software could be dragooned into assisting the government in investigating users of the software. If the court adopts this view, it would give investigators immense power. The quotidian aspects of our lives increasingly involve software (from our cars to our TVs to our health to our home appliances), and most of that software is arguably licensed, not bought. Conscripting software makers to collect information on us would afford the government access to the most intimate information about us, on the strength of some words in some license agreements that people never read. (And no wonder: The iPhone’s EULA came to over 300 pages when the government filed it as an exhibit to its brief.)

The government’s brief does not acknowledge the sweeping implications of its arguments. It tries to portray its requested unlocking order as narrow and modest, because it “would not require Apple to make any changes to its software or hardware, … [or] to introduce any new ability to access data on its phones. It would simply require Apple to use its existing capability to bypass the passcode on a passcode-locked iOS 7 phone[.]” But that undersells the implications of the legal argument the government is making: that anything a company already can do, it could be compelled to do under the All Writs Act in order to assist law enforcement. [Continue reading…]

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How a New York judge inspired Apple’s encryption fight

Reuters reports: Last October, prosecutors from the Justice Department asked a federal magistrate judge in Brooklyn to issue an order directing Apple to help the Drug Enforcement Administration bust security on an iPhone 5 seized from the home of Jun Feng, a suspected meth dealer.

The government had previously obtained many such orders against Apple and other companies under the All Writs Act, a 1789 statute that grants federal courts broad power to issue “necessary or appropriate” writs.

The act has been a powerful tool for prosecutors since 1977, when the U.S. Supreme Court ruled in U.S. v. New York Telephone that the All Writs Act extends, under certain conditions, to private companies in a position to assist “the proper administration of justice.”

Apple has a long history of compliance with All Writs Act orders. The company helped New York investigators extract data from a suspected child sex abuser’s iPhone in 2008; rushed a data extraction in 2013 from the phone of an alleged child pornographer in Washington; and in 2015 provided federal agents in Florida with data the company extracted from a drug suspect’s phone.

According to a Justice Department brief filed last fall, Apple never objected to All Writs Act orders in those cases – nor, for that matter, to any All Writs Act order directing the company to help federal investigators break into iPhones.

Apple’s policy of acquiescence abruptly changed in the Jun Feng case last year. And for all of the attention now focused on Apple’s announced opposition to a newly issued All Writs Act order directing the company to help Justice Department investigators break the passcode on an iPhone belonging to San Bernardino shooter Syed Farook, the Feng case is quite likely to produce a ruling before the Farook case.

The impending showdown over Farook’s phone is an irresistibly stark depiction of the competing interests of individual privacy and national security. But keep your eye on precedent from Feng. [Continue reading…]

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FBI’s push to ‘fix a typo’ would really expand its surveillance authority

Robyn Greene writes: At last week’s Senate Intelligence Committee hearing on Worldwide Threats, FBI Director James Comey reiterated his call for a major expansion of the FBI’s surveillance authorities, but disingenuously downplayed it as fixing a “typo” in the law. In fact, Comey’s proposed fix, which he calls one of the FBI’s top legislative priorities, would be a major expansion of surveillance authority, and a major hit to Americans’ privacy and civil liberties. It would grant the FBI access to a range of revealing and personal details about Americans’ online communications — what are called Electronic Communications Transactional Records (ECTR), in legalese — without court approval.

Through Comey’s “ECTR fix,” the FBI would have the unilateral authority to obtain information from phone and Internet companies about your online communications such as logs of emails you send and receive, cell site data (including your location information), and lists of websites you visit. The FBI wants to get this information using National Security Letters (NSLs), which are demands for information issued directly by local FBI offices without any court approval or supervision.

Under current law, the FBI can only use NSLs to get information pertaining to a customer’s “name, address, length of service, and local and long distance toll billing records of a person or entity.” By contrast, if the FBI wants to compel a company to hand over the much more revealing private information that is included in ECTRs, they currently can’t use NSLs — instead, they have to get a court order after convincing a judge that they have a factual basis for demanding those records. Therefore, the FBI’s proposal that Congress add ECTRs to the NSL statute is far from a typo fix, and would instead be a major expansion of FBI’s authority to conduct surveillance with virtually no oversight and no accountability. [Continue reading…]

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Apple’s stance highlights a more confrontational tech industry

Farhad Manjoo writes: The battle between Apple and law enforcement officials over unlocking a terrorist’s smartphone is the culmination of a slow turning of the tables between the technology industry and the United States government.

After revelations by the former National Security Agency contractor Edward J. Snowden in 2013 that the government both cozied up to certain tech companies and hacked into others to gain access to private data on an enormous scale, tech giants began to recognize the United States government as a hostile actor.

But if the confrontation has crystallized in this latest battle, it may already be heading toward a predictable conclusion: In the long run, the tech companies are destined to emerge victorious.

It may not seem that way at the moment. On the one side, you have the United States government’s mighty legal and security apparatus fighting for data of the most sympathetic sort: the secrets buried in a dead mass murderer’s phone. The action stems from a federal court order issued on Tuesday requiring Apple to help the F.B.I. unlock an iPhone used by one of the two attackers who killed 14 people in San Bernardino, Calif., in December.

In the other corner is the world’s most valuable company, whose chief executive, Timothy D. Cook, has said he will appeal the court’s order. Apple argues that it is fighting to preserve a principle that most of us who are addicted to our smartphones can defend: Weaken a single iPhone so that its contents can be viewed by the American government and you risk weakening all iPhones for any government intruder, anywhere.

There will probably be months of legal tussling, and it is not at all clear which side will prevail in court, nor in the battle for public opinion and legislative favor.

Yet underlying all of this is a simple dynamic: Apple, Google, Facebook and other companies hold most of the cards in this confrontation. They have our data, and their businesses depend on the global public’s collective belief that they will do everything they can to protect that data. [Continue reading…]

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California said to target Exxon in climate inquiry

The New York Times reports: California’s attorney general is investigating Exxon Mobil on whether the company lied to the public and shareholders about the risks of climate change, and whether the company’s statements over the years constitute violations of securities laws and other statutes.

The investigation is similar to one started in November by the New York attorney general, Eric T. Schneiderman, for which the company has already produced thousands of documents.

Mr. Schneiderman, calling climate change “the defining issue of our time,” applauded the action taken by Kamala D. Harris, the attorney general.

“Just like any other publicly traded company, these energy giants have an obligation to ensure that their disclosures to investors of known and reasonably likely risks are truthful and not misleading, and to disclose to the public the risks associated with their products,” he said.

The California investigation was first reported by The Los Angeles Times, and was confirmed by people with knowledge of details of the inquiry. [Continue reading…]

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Putin signs law allowing Russia to overturn rulings of international rights courts

Reuters reports: President Vladimir Putin has signed a law allowing Russia’s Constitutional Court to decide whether or not to implement rulings of international human rights courts.

The law, published on Tuesday on the government website, enables the Russian court to overturn decisions of the Strasbourg-based European Court of Human Rights (ECHR) if it deems them unconstitutional.

Human Rights Watch has said the law is designed to thwart the ability of victims of human rights violations in Russia to find justice through international bodies.

The law comes after the ECHR ruled in 2014 that Russia must pay a 1.9 billion euro ($2.09 billion) award to shareholders of the defunct Yukos oil company, a verdict that added to financial pressure on Moscow as it struggles with shrinking revenues due to tumbling oil prices and Western sanctions.

The ECHR said it had received 218 complaints against Russia in 2014 and that it had found 122 cases in which Moscow had violated the European Convention on Human Rights, including the deportation of Georgian citizens in 2006 and the incarceration of defendants in metal cages during Russian court hearings. [Continue reading…]

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Russians may have a strong case in Turkish shootdown

Charles J. Dunlap Jr writes: The shootdown of the Russian Su-24 bomber by Turkish F-16s raises a number of critical issues under international law that the U.S. needs to carefully navigate. This is especially so since the result of the Turkish action was the apparently illegal killing by Syrian rebels of one of the Russian aircrew, as well as the possibly unlawful death of a Russian marine attempting to rescue the downed aviators.

While President Obama is certainly correct in saying that “Turkey, like every country, has a right to defend its territory and its airspace,” exactly how it may do so is more complicated than the president implies. In fact, the Russians may have strong legal arguments that any such right under international law was wrongly asserted in this instance.

Article 51 of the U.N. charter permits the use of force in the event of an “armed attack.” However, in a 1986 case, the International Court of Justice concluded that a “mere frontier incident” might constitute a breach of the U.N. charter, but did not necessarily trigger the right to use force absent a showing that the attack was of a significant scale and effect. Most nations also accept that states threatened with an imminent attack can respond in self-defense so long as they did not have under the circumstances “any means of halting the attack other than recourse to armed force,” as noted by Leo Van den hole in the American University International Law Review.

The problem here is that the Turks are not asserting that any armed attack took place or, for that matter, that any armed attack was even being contemplated by the Russians. Instead, in a letter to the U.N., the Turks only claimed that the Russians had “violated their national airspace to a depth of 1.36 to 1.15 miles in length for 17 seconds.” They also say that the Russians were warned “10 times” (something the Russians dispute) and that the Turkish jets fired upon them in accordance with the Turks’ “rules of engagement.” Of course, national rules of engagement cannot trump the requirements of international law. Moreover, international law also requires any force in self-defense be proportional to the threat addressed. [Continue reading…]

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