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Contemporary Practice of the United States Relating to International Law

Published online by Cambridge University Press:  20 January 2017

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Contemporary Practice of the United States Relating to International Law
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American Journal of International Law , Volume 109 , Issue 1 , January 2015 , pp. 174 - 213
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Copyright © American Society of International Law 2015

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References

1 For earlier coverage of this topic, see Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 108 AJIL 784 (2014)CrossRefGoogle Scholar.

2 Ambassador Rosemary DiCarlo, U.S. Deputy Permanent Representative to the United Nations, Remarks at a UN Security Council Briefing on Ukraine (Aug. 5, 2014), at http://ukraine.usembassy.gov/statements/dicarlo1-ukraine-08052014.html.

3 Int’l Comm. of the Red Cross [ICRC], Press Release No. 14/140, Ukraine: Situation Deteriorating in East (Aug. 8, 2014), at https://www.icrc.org/eng/resources/documents/news-release/2014/08-08-ukraine-humanitarian-situation-deteriorates-east.htm.

4 ICRC, Press Release No. 14/143, Ukraine: Preparations Under Way for Large-Scale Aid Delivery (Aug. 15, 2014), at https://www.icrc.org/eng/resources/documents/news-release/2014/08-15-ukraine-large-scale-delivery.htm.

5 ICRC, Press Release No. 14/147, Ukraine: Urgent Need for Aid in Lugansk (Aug. 21, 2014), available at https://www.icrc.org/eng/resources/documents/news-release/2014/08-21-ukraine-lugansk-urgent-needs-aid.htm.

6 Id.

7 Org. for Sec. and Cooperation in Eur. [OSCE], Report of Acting Chief Observer Paul Picard to the OSCE Permanent Council for the Period 30 July to 30 September 2014, Sept. 30, 2014, at 3, available at http://photos.state.gov/libraries/osce/242783/misc_pdfs/Report_Picard.pdf [hereinafter Sept.30 OSCE Report]; see also Statement Dated 22 August 2014 of the Ministry of Foreign Affairs of Ukraine in Connection with the Illegal Crossing of the State Border of Ukraine by the Russian Convoy, in letter dated Aug. 22, 2014, from the Chargé d’affaires a.i. of the Permanent Mission of Ukraine to the United Nations addressed to the President of the Security Council, UN Doc. S/2014/612 (Aug. 22, 2014) (noting that “[a]lthough the border and customs services of Ukraine had already started clearance of the Russian convoy, in the morning, Ukrainian officials were blocked by the Russian forces and detached from the inspection of the rest of the trucks in the column, despite previous agreements and the fact that they had been invited into the territory of Russia”).

8 Press Release, Office of the Press Sec’y, The White House, Statement by NSC Spokesperson Caitlin Hayden on Russian Convoy in Ukraine (Aug. 22, 2014), at http://www.whitehouse.gov/the-press-office/2014/08/22/statement-nsc-spokesperson-caitlin-hayden-russian-convoy-ukraine [hereinafter Aug. 22 White House Press Release].

9 Ambassador Daniel Baer, U.S. Embassy to Kyiv, United States Mission to the OSCE on Russian “Humanitarian” Convoy Sent to Ukraine (Nov. 3, 2014), at http://ukraine.usembassy.gov/statements/osce-ukraine-11032014-1.html [hereinafter Nov. 3 Statement by Ambassador Daniel Baer].

10 See Press Release, OSCE, Chairperson-in-Office Welcomes Minsk Agreement, Assures President Poroshenko of OSCE Support (Sept. 5, 2014), at http://www.osce.org/cio/123245. [hereinafter OSCE Welcomes Minsk Agreement] (describing OSCE’s chairperson’s response to the signing of the agreement); Press Release, OSCE, Press Statement by the Trilateral Contact Group (July 31, 2014), at http://www.osce.org/home/122142 (marking the start of the Group’s ceasefire negotiations with separatists); Press Release, OSCE, Press Statement by the Trilateral Contact Group (Sept. 2, 2014), at http://www.osce.org/home/123124 (identifying the members of the Group and elements “for securing a mutually-agreed and sustainable cease-fire”.

11 Press Release, Ukrainian Mission to the European Union, Protocol on the Results of Consultations of the Trilateral Contact Group (Minsk, 05/09/2014) (Sept. 8, 2014), at http://mfa.gov.ua/en/news-feeds/foreign-offices-news/27596-protocolon-the-results-of-consultations-of-the-trilateral-contact-group-minsk-05092014 [hereinaf ter Minsk Protocol]. For the original in Russian, see OSCE, Protocol on the Results of Consultations of the Trilateral Contact Group, Signed in Minsk, 5 September 2014 (Sept. 5, 2014), at http://www.osce.org/home/123257.

12 OSCE Welcomes Minsk Agreement, supra note 10.

13 Minsk Protocol, supra note 11.

14 Sept. 30 OSCE Report, supra note 7, at 4.

15 15 Id.

16 English-Language Translation of the Sept. 19 Cease-Fire Memorandum in Minsk, Kyiv Post, Sept. 22, 2014, available at http://www.kyivpost.com/content/ukraine/english-language-translation-of-the-sept-5-cease-fire-memorandum-in-minsk-365460.html [hereinafter Sept. 19 Minsk Memorandum]. (Editors’ note: This is the Kyiv Post’s unofficial translation. For the original in Russian, see Memorandum of September 19 2014 Outlining the Parameters for the Implementation of Commitments of the Minsk Protocol of 5 September 2014, Org. For Sec. And Co-Operation in Eur., Sept. 5, 2014, available at http://www.osce.org/home/123806).

17 Sept. 19 Minsk Memorandum, supra note 16.

18 7269th Meeting of the Security Council, UN Doc. S/PV.7269, at 17 (Sept. 19, 2014), at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.7269.

19 Sept. 30 OSCE Report, supra note 7, at 4.

20 Id.

21 Memorandum from President Obama to the Sec’y of State (Sept. 24, 2014), at http://www.whitehouse.gov/the-press-office/2014/09/24/presidential-memorandum-assistance-ukraine.

22 Id.

23 Barack Obama, Address to the United Nations General Assembly (Sept. 24, 2014), at http://www.whitehouse.gov/the-press-office/2014/09/24/remarks-president-obama-address-united-nations-general-assembly.

24 Press Release, U.S. Embassy to Kyiv, U.S. Security Assistance to Ukraine Continues (Oct. 8, 2014), at http://ukraine.usembassy.gov/press-releases/us-assistance-10082014.html.

26 Charge d’affaires a.i. of the Permanent Mission of Ukraine to the UN, Letter dated Oct. 23, 2014 from the Chargé d’affaires a.i. addressed to the President of the Security Council, UN Doc. S/2014/755, at 7 (Oct. 23, 2014), available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2014/755 (contrasting steps taken by Ukraine to comply with the agreement with a litany of violations by Russia and the Russia-backed separatists).

27 Id.

28 7287th Meeting of the Security Council, UN Doc. S/PV.7287, at 1 (Oct. 24, 214), at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.7287.

29 Id. at 7.

30 Id. at 8.

31 Id. at 19.

32 Id.

33 Id. at 19–21.

34 Nov. 3 Statement by Ambassador Daniel Baer, supra note 9; see also Ambassador Daniel Baer, U.S. Embassy to Kyiv, United States Mission to the OSCE: Ongoing Violations of OSCE Principles and Commitments by the Russian Federation and the Situation in Ukraine (Oct. 30, 2014), at http://ukraine.usembassy.gov/statements/osce-ukraine-10302014.html (“[W]e are concerned to hear reports that Russia plans to send another convoy to Ukraine without consent of the Ukrainian government and not in line with ICRC procedures. As with the three previous Russian convoys, neither the Ukrainian government nor the international community have any idea what will be in the trucks, who will be driving them, and what they will be taking in and out of Ukraine. We urge Russia to work through international and humanitarian organizations to administer aid, in accordance with international standards.”).

35 7311th Meeting of the Security Council, UN Doc. S/PV.7311, at 6 – 8 (Nov. 12, 2014), at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.7311 [hereinafter Nov. 12 Security Council Debate].

36 Id. at 18–19.

37 The October 17 Milan talks focused on Ukraine’s gas supply from Russia. Press Release, Meeting of the Leaders of Russia, Ukraine, Germany, and France (Oct. 17, 2014), at http://eng.kremlin.ru/news/23113. Those discussions continued with “EC-brokered talks” on October 21 in Berlin and culminated on October 30 with a binding agreement in Brussels. Marie Harf, Deputy Spokesperson, U.S. Dep’t of State, Daily Press Briefing (Oct. 21, 2014), at http://www.state.gov/r/pa/prs/dpb/2014/10/233205.htm; Pasquale De Micco, Briefing: The Russian-Ukrainian Gas Deal: Taking the Bite Out of Winter?, European Parliament Directorate-General for External Policies, Policy Dep’t, at http://www.europarl.europa.eu/RegData/etudes/BRIE/2014/536415/EXPO_BRI(2014)536415_EN.pdf 5. (“[T]he final agreement brokered by the Commission is not entirely transparent: while the binding protocol is public, the annex is secret.”).

38 Nov. 12 Security Council Debate, supra note 35, at 21–22.

39 Id. at 24.

1 Security and Defense Cooperation Agreement, U.S.-Afg., Sept. 30, 2014, at http://mfa.gov.af/Content/files/BSA%20ENGLISH%20AFG.pdf. For a brief background of the political context of the agreement, see Declan Walsh & Azam Ahmed, Mending Alliance, U.S. and Afghanistan Sign Long-Term Security Agreement, N.Y. Times, Sept. 30, 2014, at a 6.

2 The international combat mission, comprised of NATO and U.S. troops, operated in Afghanistan pursuant to UN Security Council Resolution 1386 and related agreements with Afghanistan. See S.C. Res. 1386, UN Doc. S/RES/1386 (Dec. 20, 2001) (establishing the International Security Assistance Force (ISAF), which NATO led); Military Technical Agreement Between the International Security Assistance Force and the Interim Administration of Afghanistan, Jan. 4, 2002, at http://webarchive.nationalarchives.gov.uk/+/http://www.operations.mod.uk/isafmta.pdf (outlining the responsibilities of the ISAF and the interim administration in providing security, law, and order); Agreement Regarding the Status of United States Military and Civilian Personnel of the U.S. Department of Defense Present in Afghanistan in Connection with Cooperative Efforts in Response to Terrorism, Humanitarian, and Civic Assistance, Military and Training Exercises, and Other Activities, U.S.-Afg., May 28, 2003, T.I.A.S. (formalizing the presence of U.S. troops in Afghanistan); Enduring Strategic Partnership Agreement, U.S.-Afg., May 2, 2012, at http://www.whitehouse.gov/sites/default/files/2012.06.01u.s.-afghanistanspasignedtext.pdf (outlining a general framework for continued relations in the decade following the scheduled withdrawal of troops in 2014, including through negotiations for a new Bilateral Security Agreement). See also Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 108 AJIL 101, 101–05 (2014)CrossRefGoogle Scholar (describing the negotiations and the political impasse before the signing of the security agreement); Crook, John, Contemporary Practice of the United States, 106 AJIL 649, 649–50 (2012)Google Scholar (explaining the conditions under which the Enduring Strategic Partnership of 2012 was signed).

3 Karen DeYoung & Tim Craig, U.S., Afghanistan Agree on Language of Security Accord says Kerry, Wash. Post, Nov. 20, 2013, available at http://www.washingtonpost.com/world/national-security/us-afghanistan-agree-on-language-of-security-accord-kerry-says/2013/11/20/85136c40-521a-11e3-a7f0-b790929232e1_story.html.

4 Id.

5 Security and Defense Cooperation Agreement, supra note 1.

11 Rod Norland & AlissaJ. Rubin, Karzai’s Bet: U.S. Bluffing in Warning on Security Pact, N.Y. Times, Nov. 2, 2013, at A8; see also Daugirdas & Mortenson, supra note 2.

12 Tim Craig & Karen DeYoung, Karzai Tells Susan Rice of More Demands for Accord Extending U.S. Troop Presence, Wash. Post, Nov. 25, 2013, available at http://www.washingtonpost.com/world/national-security-adviser-susan-rice-visits-afghanistan-amid-tension-over-troop-accord/2013/11/25/fd0f8460-55dd-11e3-835d-e7173847c7cc_story.html; see also Rod Norland, Elders Back Security Pact That Karzai Won’t Sign, N.Y. Times, Nov. 25, 2013, at A4.

13 Nathan Hodge, Dion Nissenbaum & Yaroslav Trofimov, Afghan Leader Jeopardizes Security Pact, Wall St. J., Nov. 21, 2013, available at http://online.wsj.com/articles/SB10001424052702304791704579211271054226730.

14 Id. ; see also Norland, supra note 12.

15 Press Release, John Kerry, Sec’y of State, U.S. Dep’t of State, Solo Press Availability at NATO (Dec. 3, 2013), at http://www.state.gov/secretary/remarks/2013/12/218268.htm.

16 Anders Fogh Rasmussen, Sec’y Gen., N. Atl. Treaty Org., Doorstep Statement by the NATO Secretary General at the Start of the NATO Defence Ministers Meeting (Feb. 26, 2014), at http://www.nato.int/cps/en/natolive/opinions_107404.htm.

17 General Joseph F. Dunford, Hearing to Receive Testimony on the Situation in Afghanistan, Senate Committee on Armed Services (Mar. 12, 2014), at http://www.armed-services.senate.gov/imo/media/doc/14-19%20-%203-12-14.pdf.

18 Adam Entous & Julian E. Barnes, Frustrated by Karzai, U.S. Shifts Afghanistan Exit Plans, Wall St. J., Feb. 10, 2014, available at http://online.wsj.com/articles/SB10001424052702303874504579375211469366596.

19 Kathy Gannon & Rahim Faiez, Karzai Says Afghanistan Doesn’t Need U.S. Troops to Stay Past End of Year, Wash. Post, Mar. 15, 2014, available at http://www.washingtonpost.com/world/asia_pacific/karzai-says-afghanistan-doesnt-need-us-troops-to-stay-past-end-of-year/2014/03/15/72e9017a-ac73-11e3-a06a-e3230a43d6cb_story.html.

20 Id.

21 Id.

22 See Tim Craig & Sharif Hassan, Afghanistan’s Karzai Calls for Candidates Abdullah, Ghani to Put Aside Differences, Wash. Post, Sept. 9, 2014, available at http://www.washingtonpost.com/world/war-zones/afghanistans-karzai-calls-for-candidates-abdullah-ghani-to-put-aside-differences/2014/09/09/d5be042e-381b-11e4-9c9f-ebb47272e40e_story.html (describing concerns about potential violence before the runoff).

23 Karen DeYoung, Obama to Leave 9,800 Troops in Afghanistan, Wash. Post, May 27, 2014, available at http://www.washingtonpost.com/world/national-security/obama-to-leave-9800-us-troops-in-afghanistan-senior-official-says/2014/05/27/57f37e72-e5b2-11e3-a86b-362fd5443d19_story.html.

24 Id.

25 Mazzetti & Schmitt, supra note 8.

26 Kevin Sieff, Afghans Protest Alleged Election Fraud, Wash. Post, June 21, 2014, available at http://www.washingtonpost.com/world/afghans-protest-alleged-election-fraud/2014/06/21/86348a91-57cf-4428-88db-2dbc609b6d2a_story.html.

27 Mark Landler, Obama Holds to Afghanistan Withdrawal Deadline, N.Y. Times, Aug. 19, 2014, at A3.

28 Id.

29 Rod Norland, Afghan Presidential Rivals Finally Agree on Power-Sharing Deal, N.Y. Times, Sept. 20, 2014, at A13 (noting that “in addition to Mr. Kerry’s interventions, Obama called each of the candidates three times since the runoff, and the American ambassador, James B. Cunningham, and other American diplomats met with Mr. Ghani 39 times, Mr. Abdullah 42 times and Mr. Karzai 15 times in an effort to broker the settlement”).

30 Landler, supra note 27.

31 Id.

32 Enduring Strategic Partnership Agreement, supra note 2. Although this agreement provided a framework for the continued presence of some U.S. troops, the lack of a bilateral security agreement presented significant practical obstacles. Among other issues, the Enduring Strategic Partnership Agreement offered uncertain legal protections for U.S. troops and included a cut-off point—the end of2014—beyond which U.S. troops would not be permitted to access Afghan facilities. Id. at III(2)b-c; VIII(1)

33 Tim Craig, Ghani Named Winner of Afghan Election, Will Share Power with Rival in New Government, Wash Post. Sept. 21, 2014, available at http://www.washingtonpost.com/world/ghani-abdullah-agree-to-share-power-in-afghanistan-as-election-stalemate-ends/2014/09/21/df58749a-416e-11e4-9a15-137aa0153527_story.html.

34 Rod Norland & Declan Walsh, President Ashraf Ghani of Afghanistan Is Sworn In, Even as He Shares the Stage, N.Y. Times, Sept. 29, 2014, at A6.

35 Agreement Between the North Atlantic Treaty Organization and the Islamic Republic of Afghanistan on the Status of NATO Forces and NATO Personnel Concerning Mutually Agreed NATO-Led Activities in Afghanistan (Sept. 30, 2014), at http://www.nato.int/cps/en/natohq/official_texts_116072.htm?selectedLocale=en; Security and Defense Cooperation Agreement, supra note 1.

36 Walsh & Ahmed, supra note 1.

37 Id.

38 Id.

39 Sudarsan Raghavan & Karen Deoung, U.S. and Afghanistan Sign Vital, Long-Delayed Security Pact, Wash. Post, Sept. 30, 2014, available at http://www.washingtonpost.com/world/us-afghanistan-sign-security-pact-to-allow-american-forces-to-remain-in-country/2014/09/30/48f555ce-4879-11e4-a046-120a8a855cca_story.html.

40 Id.

41 Security and Defense Cooperation Agreement, supra note 1, art. 26(1).

42 See U.S. Dep’t of State, Background Briefing Call on the U.S.-Afghanistan Security and Defense Cooperation Agreement (Sept. 30, 2014), at http://www.state.gov/r/pa/prs/ps/2014/09/232345.htm [hereinafter Background Briefing Call] (indicating that although civilian assistance would shrink as the troops are drawn down, the United States still has “a long-term commitment to Afghanistan’s economic sustainability”).

43 Id.

44 Security and Defense Cooperation Agreement, supra note 1.

45 Id. at art. 13(6).

46 Id. at art. 22(1).

47 Daugirdas & Mortenson, supra note 2, at 102.

48 Security and Defense Cooperation Agreement, supra note 1.

49 Id. at art. 2(4).

50 Id. at art. 3(3).

51 Id.

52 Frank Jack Daniel, U.S. Closes Bagram Prison, Says No More Detainees Held in Afghanistan, Reuters, Dec. 11, 2014, available at http://www.reuters.com/article/2014/12/11/us-usa-cia-torture-bagram-idUSKBN0JO2B720141211?utm_source=Sailthru&utm_medium=email&utm_term=%2AAfPak%20Daily%20Brief&utm_campaign=2014_The%20South%20Asia%20Daily%2012-11.

53 Walsh & Ahmed, supra note 1.

54 Id.

55 John Kerry, Sec’y of State, U.S. Dep’t of State, Press Statement: Signing of Bilateral Security Agreement and NATO Status of Forces Agreement (Sept. 30, 2014), at http://www.state.gov/secretary/remarks/2014/09/232329.htm; Barack Obama, Statement by the President on the Signing of the Bilateral Security Agreement and NATO Status of Forces Agreement in Afghanistan (Sept. 30, 2014), at http://www.whitehouse.gov/the-press-office/2014/09/30/statement-president-signing-bilateral-security-agreement-and-nato-status.

56 Background Briefing Call, supra note 42.

57 Walsh & Ahmed, supra note 1.

58 Id.

59 Id.

60 Id.

61 Karen DeYoung & Missy Ryan, Afghan Mission for U.S. to Continue under New Authorities, Wash. Post, Nov. 22, 2014, available at http://www.washingtonpost.com/world/national-security/white-house-gives-commanders-broader-authority-to-support-afghan-troops/2014/11/22/8741f2fc-724e-11e4-ad12-3734c461eab6_story.html.

62 Id.

63 Mazzetti & Schmitt, supra note 8.

64 DeYoung & Ryan, supra note 61.

65 Mazzetti & Schmitt, supra note 8.

66 See, e.g., Azam Ahmed, Hour’s Drive Outside Kabul, Taliban Reign, N.Y. Times, Nov. 23, 2014, at A1(describing violence in the Tagab district of Kapisa Province).

67 Raghavan, supra note 6.

68 Rod Norland & Taimoor Shah, Afghanistan Quietly Lifts Banon Nighttime Raids, N.Y. Times, Nov.24, 2014, at A9.

69 Norland & Shah, supra note 68.

70 DeYoung & Ryan, supra note 65.

71 Raghavan, supra note 6.

1 Bernadette Meehan, Spokeswoman, U.S. Nat’l Sec. Council, Statement on the U.S. Presentation to the Committee Against Torture (Nov. 12, 2014), at http://www.whitehouse.gov/the-press-office/2014/11/12/statement-nsc-spokesperson-bernadette-meehan-us-presentation-committee-a. See also Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, arts. 17–18, opened for signature Dec. 10, 1984, 1465 UNTS 85 [hereinafter Convention Against Torture]. The United States has been a party to the Convention Against Torture since November 20, 1994. The Committee Against Torture is a body of ten independent experts that monitors implementation of the Convention Against Torture. Committee Against Torture, Office Of the High Comm’r for Human Rights, at http://www.ohchr.org/en/hrbodies/cat/pages/catindex.aspx.

2 See Convention Against Torture, art. 19; G.A. Res. 39/46, art. 19, UN Doc. A/RES/39/46 (Dec. 10, 1984).

3 Id.

4 Periodic Report of the United States of America to the United Nations Committee Against Torture, Aug. 12, 2013, at http://www.state.gov/j/drl/rls/213055.htm.

5 Id. para. 13.

6 Id. para. 5. According to news reports, Harold Koh, then-legal adviser of the U.S. Department of State, wrote a lengthy memo in January 2013, concluding that the position that the CAT has no application abroad is ”not legally available to policymakers.” Charlie Savage, U.S. Seems Unlikely to Accept That Rights Treaty Applies to Its Actions Abroad, N.Y. Times, Mar. 6, 2014, at http://www.nytimes.com/2014/03/07/world/us-seems-unlikely-to-accept-that-rights-treaty-applies-to-its-actions-abroad.html; see also Harold Hongju Koh, Memo to the President: Say Yes to the Torture Ban, Politico, Nov. 5, 2014, at http://www.politico.com/magazine/story/2014/11/memo-to-the-president-say-yes-to-the-comprehensive-torture-ban-112598.html.

7 Mary E. McLeod, Acting Legal Adviser, U.S. Dep’t of State, Opening Statement at the U.S. Periodic Review Before the UN Committee Against Torture (November 12, 2014), at https://geneva.usmission.gov/2014/11/12/acting-legal-adviser-mcleod-u-s-affirms-torture-is-prohibited-at-all-times-in-all-places; see also Tom Malinowski, Opening Statement at the U.S. Periodic Review Before the UN Committee Against Torture (November 12, 2014), at https://geneva.usmission.gov/2014/11/12/malinowski-torture-and-degrading-treatment-and-punishment-are-forbidden-in-all-places-at-all-times-with-no-exceptions (“We believe that torture, and cruel, inhuman and degrading treatment and punishment are forbidden in all places, at all times, with no exceptions.”).

8 G.A. Res. 39/46, art. 12, 16, UN Doc. A/RES/39/46 (Dec. 10, 1984).

9 McLeod, supra note 7.

10 See S. Treaty Doc. NO. 100 –20, at 13 (1984) (“The term ‘territory under its jurisdiction’ refers to all places that the State Party controls as a governmental authority, including ships and aircraft registered in that State.”); see also Sarah Cleveland, The United States and the Torture Convention, Part I: Extraterritoriality, Just Security (Nov. 14, 2014), at http://justsecurity.org/17435/united-states-torture-convention-part-i-extraterritoriality.

12 U.S. Dep’t of State, United States Written Response to Questions Asked by the Committee Against Torture para. 44 (Apr. 28, 2006), at http://www.state.gov/j/drl/rls/68554.htm.

13 Id.

14 See John B. Bellinger, III, The Convention Against Torture: Extraterritorial Application and Application to Military Operations, Lawfare (Oct. 26, 2014), at http://www.lawfareblog.com/2014/10/the-convention-against-torture-extraterritorial-application-and-application-to-military-operations (“This [2006] statement left open the possibility that the U.S. does accept that Article 16 applies outside the U.S. in some cases. This was a compromise statement agreed among various agencies, in light of the view of the Justice Department that Article 16 did not apply outside the territory of the United States in any circumstances, and the position of the Department of State that Article 16 applied to territory outside the United States in certain circumstances.”).

15 Memorandum from Steven G. Bradbury, Principal Deputy Assistant Att’y Gen., U.S. Dep’t of Justice to John A. Rizzo, Sen. Dep’y Gen. Counsel, Central Intelligence Agency, at 16 (May 30, 2005), at http://fas.org/irp/agency/doj/olc/article16.pdf.

16 Id. The reservation reads in full: “That the United Sates considers itself bound by the obligation under Article 16 to prevent ‘cruel, inhuman or degrading treatment of punishment,’ only insofar as the term ‘cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” 136 Cong. Rec. 36198 (1990) [hereinafter U.S. Reservation].

17 Memorandum from David J. Barron, Acting Assistant Att’y Gen., to the Att’y Gen. (Apr. 15, 2009), at http://fas.org/irp/agency/doj/olc/withdraw-0409.pdf.

18 See Cleveland, supra note 10.

19 Meehan, supra note 1.

20 McLeod, supra note 7.

21 John B. Bellinger, III, Legal Adviser, U.S. Dep’t of State, Opening Remarks at the U.S. Periodic Review Before the UN Committee Against Torture (May 5, 2006), at http://www.state.gov/j/drl/rls/68557.htm.

22 Sarah Cleveland, The United States and the Torture Convention, Part II: Armed Conflict, Just Security (Nov. 19, 2014), at http://justsecurity.org/17581/united-states-torture-convention-armed-conflict (arguing that the announcement signals an important shift that brings the U.S. “much closer to the Committee’s position” that the Convention applies “at all times, whether in peace, war or armed conflict”).

23 See John B. Bellinger, III, U.S. Delegation Asserts Article 16 of Convention Against Torture Applies Outside U.S. Territory in Certain Circumstances, but Law of Armed Conflict “Takes Precedence” in Situations of Armed Conflict, Lawfare (Nov. 12, 2014), at http://www.lawfareblog.com/2014/11/u-s-delegation-asserts-article-16-of-convention-against-torture-applies-outside-u-s-territority-in-certain-circumstances-but-law-of-armed-conflict-takes-precedence-in-situations-of-armed-confli (“[T]he U.S. Government has reaffirmed that the law of armed conflict, or international humanitarian law, is the lex specialis applicable to U.S. military operations. Although the U.S. was criticized... for stating this same position in 2006, this was a longstanding U.S. view.”).

24 See Bellinger, supra note 13 (noting that with regard to torture and CIDT, “the substantive standards are the same under international law” for both the laws of war and international human rights law).

25 Cleveland, supra note 21. In two memoranda, later withdrawn by the Obama Administration, Steven G. Brad bury argued that while CIA interrogation methods comply with U.S. domestic law, “[n]othing in this memorandum... should be read to suggest that the use of these techniques would conform to... United States obligations under the Geneva Conventions in circumstances where those Conventions apply. We do not address the application of article 16 of the United Nations Convention Against Torture.” Steven G. Bradbury, Principal Deputy Assistant Att’y Gen., U.S. Dep’t of Justice, Memorandum for John A. Rizzo, Sen. Dep’y Gen. Counsel, Central Intelligence Agency, Re: Application of 18 U.S.C. §§2340-2340A to the Combined Use of Certain Techniques in the Interrogation of High Value al Qaeda Detainees, at 1 (May 10, 2005). The note may suggest an understanding that the choice of legal regimes requires a binary choice between the laws of war and the CAT—meaning, that one must apply to the exclusion of the other—apply, as opposed to the newly iterated understanding that the two apply concurrently and complement and inform each other.

26 Meehan, supra note 1.

27 Cleveland, supra note 21.

28 UN Committee Against Torture, Concluding Observations on the Third to Fifth Periodic Reports of United States of America, CAT/C/USA/CO/3-5 (Nov. 28, 2014), at http://tbinternet.ohchr.org/_layouts/treatybodyex-ternal/TBSearch.aspx?Lang=en&TreatyID=1&DocTypeID=5 [hereinafter Concluding Observations].

29 Id. para. 10.

30 Id.

31 U.S. Reservation, supra note 5.

32 The Committee cites the discussion of the Article 16 reservation in the declassified Torture Memos as evidence that impermissible legal interpretations are possible as long as the reservation persists: “While noting that these memoranda were revoked by Presidential Executive Order 13491 to the extent of their inconsistency with that order, the Committee remains concerned that the State party has not withdrawn yet its reservation to article which could permit interpretations incompatible with the absolute prohibition of torture and ill treatment.” Concluding Observations, supra note 27, para. 10

1 Office of the Press Sec’y, The White House, Fact Sheet: U.S.-China Joint Announcement on Climate Change and Clean Energy Cooperation (Nov. 11, 2014), at https://www.whitehouse.gov/the-press-office/2014/11/11/fact-sheet-us-china-joint-announcement-climate-change-and-clean-energy-c [hereinafter Nov. 11 White House Press Release]; Robert Stowe, The U.S.-China Deal on Climate Change: Minilateralism at Work, Energy Collective (Nov. 17, 2014), at http://theenergycollective.com/robertstowe/2156196/us-china-deal-climate-change-minilateralism-work.

2 Press Release, Office of the Press Sec’y, The White House, U.S.-China Joint Announcement on Climate Change (Nov. 11, 2014), at http://www.whitehouse.gov/the-press-office/2014/11/11/us-china-joint-announcement-climate-change [hereinafter U.S.-China Joint Announcement]; Matt Hoye & Holly Yan, U.S. and China Reach Historic Climate Change Deal, Vow to Cut Emissions, CNN (Nov. 12, 2014), at http://www.cnn.com/2014/11/12/world/us-china-climate-change-agreement; Mark Landler, U.S. and China Reach Climate Accord After Months of Talks, N.Y. Times, Nov. 11, 2014, available at http://www.nytimes.com/2014/11/12/world/asia/china-us-xi-obama-apec.html.

3 U.S.-China Joint Announcement, supra note 2.

4 Id.

5 Conference of the Parties, Rep. on its 19th Sess., Nov.28– Dec. 11, 2011, Decision 1/CP.17 UNDoc. FCCC/CP/2011/9/Add.1 para. 4 (Mar. 15, 2012). Dec. 11, 2011); see also U.S.-China Joint Announcement, supra note 2.

6 United Nations Frame work Convention on Climate Change, May 9, 1992, 1771 UNTS 107 [hereinafter Convention on Climate Change].

7 Id. at art. 2.

8 Kyoto Protocol to the United Nations Framework Convention on Climate Change, UN Doc. FCCC/CP/1997/7/Add.1 (Dec. 11, 1997) [hereinafter Kyoto Protocol].

9 See Convention on Climate Change, supra note 6, art. 7.

10 Kyoto Protocol, supra note 8, art. 3; Berlin Mandate, Decision 1/CP.1, UN Doc. FCCC/CP/1995/7/Add.1, art. 2(a), (b) (June 6, 1995); Doha Amendment to the Kyoto Protocol (2012), at http://unfccc.int/kyoto_protocol/doha_amendment/items/7362.php; see also Mary J. Bortscheller, Equitable But Ineffective: How the Principle Of Common But Differentiated Responsibilities Hobbles the Global Fight Against Climate Change, Sustainable Dev. L. & Pol’y 49, 49 (2010).

11 Murphy, Sean D., Contemporary Practice of the United States, 95 AJIL 647 (2001)Google Scholar.

12 UNFCCC, Status of Ratification of the Kyoto Protocol, available at http://unfccc.int/kyoto_protocol/status_of_ratification/items/2613.php.

13 See, e.g., Bortscheller, supra note 10, at 49.

14 Conference of the Parties, Rep. on its 13th Sess., Dec. 3–15, 2007, Decision 1/CP.13, UN Doc. FCCC/CP/2007/6/Add.1 para. 1 (Mar. 14, 2008) (deciding “to launch a comprehensive process to enable the full, effective and sustained implementation of the Convention through long-term cooperative action, now, up to and beyond 2012”).

15 Copenhagen Accord, UN Doc. FCCC/CP/2009/11/L.7 (Dec. 18, 2009); see also Bodansky, Daniel, The Copenhagen Climate Change Conference: A Post Mortem, 104 AJIL 230 (2010)CrossRefGoogle Scholar (analyzing the content and back ground of the Accord).

16 See Copenhagen Accord, supra note 15, para. 2.

17 Id. paras. 4–5.

18 Letter from Todd Stern, U.S. Special Envoy for Climate Change, to Yvo de Boer, Executive Secretary, UNFCCC Secretariat (Jan. 28, 2010), available at http://unfccc.int/meetings/copenhagen_dec_2009/items/5264.php.

19 Letter from SU Wei, Director General, Department of Climate Change, National Development and Reform Commission of China, to Yvo de Boer, Executive Secretary, UNFCCC Secretariat (Jan. 28, 2010), available at http://unfccc.int/meetings/cop_15/copenhagen_accord/items/5265.php.

20 Nov. 11 White House Press Release, supra note 1.

21 Id.

22 See, e.g., Stowe, supra note 1.

23 Nov. 11 White House Press Release, supra note 1.

24 Id.

25 See Daniel Bodansky, A Big Deal on Climate?, Opinio Juris (Nov. 16, 2014), at http://opiniojuris.org/2014/11/16/guest-post-big-deal-climate (“The negotiations already seemed on track to produce a new agreement, reflecting a bottom-up architecture, consisting of national pledges (like those announced in Beijing) and international review.”).

26 Conference of the Parties, Rep. on its 19th Sess., Nov. 11–23, 2013, Decision 1/CP.19 UN Doc. FCCC/CP/2013/10/Add.1 para. 2(b) (Jan. 31, 2014); see also Lima Call for Action, Decision-/CP.20 paras. 9–14, 16, available at http://unfccc.int/files/meetings/lima_dec_2014/application/pdf/auv_cop20_lima_call_for_climate_action.pdf.

27 Nov. 11 White House Press Release, supra note 1.

28 U.S.-China Joint Announcement, supra note 2; see also Copenhagen Accord, supra note 15, para. 2.

29 Id. ; see also Lima Call for Action, supra note 26, pmbl. para. 3 (indicating the Conference of the Parties “[u ]nderscores its commitment to reaching an ambitious agreement in 2015 that reflects the principle of common but differentiated responsibilities and respective capabilities, in light of different national circumstances”).

1 Graeme Baker, ISIL: Rising Power in Iraq and Syria, AL JAZEERA, June 11, 2014, at http://www.aljazeera.com/news/middleeast/2014/06/isil-eminent-threat-iraq-syria-20146101543970327.html.

2 Id.

3 Id.

4 Id.

5 Kaveh Waddell, ISIS Is More Than Just a “Terrorist Organization, ” National Journal, June 17, 2014, at http://www.nationaljournal.com/defense/isis-is-more-than-just-a-terrorist-organization-20140617.

6 Id.

7 Liz Sly, ISIS: The al-Qaeda-Linked Islamists Powerful Enough to Capture a Key Iraqi City, Wash. Post, June 10, 2014, at http://www.washingtonpost.com/blogs/worldviews/wp/2014/06/10/isis-the-al-qaeda-linked-isla-mists-powerful-enough-to-capture-a-key-iraqi-city.

8 Id.

9 Id.

10 Ben Hubbard, Al Qaeda Breaks with Jihadist Group in Syria Involved in Rebel Infighting, N.Y. Times, Feb. 4, 2014, at A9.

11 Id.

12 Tim Arango, Kareem Fahim & Ben Hubbard, Rebels’ Fast Strike in Iraq Was Years in the Making, N.Y. Times, June 15, 2014, at A1.

13 Id.

14 Rod Nordland & Suadad Al-Salhy, Iraqi Army, in New Show of Force, Drives Back Insurgents in Major City, N.Y. Times, June 29, 2014, at A10.

15 Loveday Morris & Ernesto Londono, Iraq s Maliki Says He Has Asked for New Arms from U.S., Will Also Seek Training for Troops, N.Y. Times, Jan. 16, 2014, at http://www.washingtonpost.com/world/middle_east/iraqs-maliki-says-he-has-asked-for-weapons-from-us-will-also-seek-training-for-troops/2014/01/16/0f369ed6-7ea0-11e3-9556-4a4bf7bcbd84_story.html.

16 Press Release, U.S. Mission to Iraq, U.S. Delivers Critical Arms to Iraq (Mar. 16, 2014), at http://iraq.usembassy.gov/pr-03162014.html.

17 Id.

18 Id.

19 Terrorist March in Iraq: The U.S. Response: Hearing Before the H. Comm. on Foreign Affairs, 113th Cong. 32–33 (2014) (statement by Brett McGurk, Deputy Assistant Sec’y for Iraq and Iran, U.S. Dep’t of State), available at http://docs.house.gov/meetings/FA/FA00/20140723/102485/HHRG-113-FA00-Transcript-20140723.pdf

20 Id.

21 Letter dated Sept. 20, 2014 from the Permanent Representative of Iraq to the United Nations addressed to the President of the Security Council, UN Doc. S/2014/691 (Sept. 22, 2014), at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2014/697.

22 Barack Obama, Remarks by the President on the Situation in Iraq (June 19, 2014), at http://www.whitehouse.gov/the-press-office/2014/06/19/remarks-president-situation-iraq.

23 Id.

24 Office of the Press Secy, The White House, Statement by the Press Secretary on Iraq (Sept. 2, 14), at http://www.whitehouse.gov/the-press-office/2014/09/02/statement-press-secretary-iraq.

25 Id.

26 Helene Cooper & Michael D. Shear, Obama to Send 1, 500 More troops to Assist Iraq, N.Y. Times, Nov. 8, 2014, at A1.

27 Marie Harf, Deputy Spokesperson, U.S. Dep’t of State, Daily Press Briefing (June 23, 2014), at http://www-.state.gov/r/pa/prs/dpb/2014/06/228334.htm.

28 Peter Baker, Diplomatic Note Promises Immunity From Iraqi Law for U.S. Advisory Troops, N.Y. Times, June 24, 2014, at A10. See also U.S. Dep’t of State Press Release, Iraq: Status of Immunity for Department of State Contractor Personnel in Iraq (Oct. 18, 2011), at http://www.state.gov/r/pa/prs/ps/2011/10/175680.htm.

29 Baker, supra note 28, at A10 (quoting Rear Adm. John F. Kirby, the Pentagon spokesman).

30 See, e.g., Marie Harf, Deputy Spokesperson, U.S. Dep’t of State, Daily Press Briefing (July 21, 2014), at http://www.state.gov/r/pa/prs/dpb/2014/07/229550.htm (stating that the United States would “help the Iraqi Government in its fight against ISIL writ large”); Jen Psaki, Spokesperson, U.S. Department of State, Daily Press Briefing (July 29, 2014), at http://www.state.gov/r/pa/prs/dpb/2014/07/229907.htm (stating that the United States had “increased and expanded... the kind of assistance and the scope of assistance we’re providing”).

31 Tim Arango, Jihadists Rout Kurds in North and Seize Strategic Iraqi Dam, N.Y. Times, Aug. 8, 2014, at A1. See also Jen Psaki, Spokesperson, U.S. Department of State, Daily Press Briefing (Aug. 4, 2014), at http://www.state.gov/r/pa/prs/dpb/2014/08/230196.htm (“We know that... the Mosul Dam has been in the sights of ISIL since its offensive began in June...[O]ur understanding isthat [Kurdish] forces remain in control of the dam. Certainly, we would be concerned if that changed.”).

32 Barack Obama, Statement by the President (Aug. 7, 2014), at http://www.whitehouse.gov/the-press-office/2014/08/07/statement-president [hereinafter Aug. 7 Statement by the President].

33 Id. ; see also Marie Harf, Deputy Spokesperson, U.S. Dep’t of State, Daily Press Briefing (Aug. 8, 2014), at http://www.state.gov/r/pa/prs/dpb/2014/08/230407.htm.

34 Office of the Press Sec’y, The White House, Fact Sheet: Strategy to Counter the Islamic State of Iraq and the Levant (ISIL) (Sept. 10, 2014), at http://www.whitehouse.gov/the-press-office/2014/09/10/fact-sheet-strategy-counter-islamic-state-iraq-and-levant-isil [hereinafter Sept. 10 Fact Sheet].

35 Letter dated Sept. 20, 2014 from the Permanent Representative of Iraq to the United Nations addressed to the President of the Security Council, UN Doc. S/2014/691 (Sept. 22, 2014).

36 Id.

37 Transcript of Background Conference Call on the President s Address to the Nation (Sept. 10, 2014), at http://www.whitehouse.gov/the-press-office/2014/09/10/background-conference-call-presidents-address-nation [hereinafter Sept. 10 Conference Call].

38 Sept. 10 Fact Sheet, supra note 34.

39 Transcript of Background Conference Call on Airstrikes in Syria (Sept. 23, 2014), at http://www.whitehouse.gov/the-press-office/2014/09/23/background-conference-call-airstrikes-syria [hereinafter Sept. 23 Conference Call].

40 U.S. Dep’t of Defense, Coalition Airstrikes Continue Against ISIL in Iraq, Syria, Dod News (Jan. 20, 2014), at http://www.defense.gov/news/newsarticle.aspx?id=123997.

41 Luis Martinez, U.S. Airstrikes in Iraq and Syria Have Cost $1 Billion, ABC News (Dec. 19, 2014), at http://abcnews.go.com/Politics/us-airstrikes-iraq-syria-cost-billion/story?id=27728260 (quoting Brett McGurk’s remarks before a congressional panel the preceding week).

42 U.S. Dep’t of Defense, Airstrikes Continue Against ISIL Targets in Syria, Iraq, DOD News (Jan. 22, 2015), at http://www.defense.gov/news/newsarticle.aspx?id=128010.

43 Barbara Starr, U.S. Officials Say 6,000 ISIS Fighters Killed in Battles, CNN (Jan. 22, 2015), at http://edition.cnn.com/2015/01/22/politics/us-officials-say-6000-isis-fighters-killed-in-battles.

44 Mark Mazzetti, A Terror Cell That Avoided the Spotlight, N.Y. Times, Sept. 24, 2014, at http://www.nyti-mes.com/2014/09/25/world/middleeast/khorasan-a-terror-cell-that-avoided-the-spotlight.html. See also Barack Obama, Statement by the President on Airstrikes in Syria (Sept. 23, 2014), at http://www.whitehouse.gov/the-press-office/2014/09/23/statement-president-airstrikes-syria [hereinafter Sept. 23 Statement by the President].

45 Mazzetti, supra note 44.

46 Id.

47 Letter from Samantha Power, U.S. Ambassador to the United Nations, to Ban Ki-moon, Secretary-General of the United Nations, UN Doc. S/2014/695 (Sept. 23, 2014).

48 Id.

49 Sources conflict on whether the United States received permission from the Yemeni government for all of its strikes against alleged terrorists in that country. See, e.g., Colum Lynch, Obama Hints at Legal Rational for Airstrikes in Syria, Foreign Policy, Aug. 28, 2014, at http://foreignpolicy.com/2014/08/28/obama-hints-at-legal-ratio-nale-for-airstrikes-in-syria (noting that the United States “struck alleged terrorist targets in Somalia, Pakistan, and Yemen, sometimes without the local government’s consent”); Shuaib Almosawa & Rod Nordland, Drone Strike in Yemen Said to Kill Senior Qaeda Figure, N.Y. Times, Feb. 6, 2015, at A6.

50 Letter from Samantha Power, supra note 47.

51 Lieutenant General William Mayville & Press Sec’y Rear Admiral John Kirby, Department of Defense Press Briefing on Operations in Syria by Lt. Gen. Mayville in the Pentagon Briefing Room (Sept. 23, 2014), at http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5505 [hereinafter Sept. 23 Dep’t of Defense Press Briefing].

52 See, e.g., Jennifer Daskal, Ashley Deeks & Ryan Goodman, Strikes in Syria: The International Law Framework, Lawfare (Sept. 24, 2014), at http://www.lawfareblog.com/2014/09/strikes-in-syria-the-international-law-framework.

53 xArimatsu, Louise & Schmitt, Michael N., Attacking “Islamic State” and the Khorasan Group: Surveying the International Law Landscape, 53 Colum. J. Transnat’l L. Bulletin 1, 14–15 (2014)Google Scholar.

54 Sept. 23 Dep’t of Defense Press Briefing, supra note 51.

55 Id.

56 Rebecca Collard & Brian Murphy, Syria Informed in Advance of U.S.-led Airstrikes Against Islamic State, Wash. Post, Sept. 23, 2014, at http://www.washingtonpost.com/world/syria-informed-in-advance-of-us-led-airstrikes-against-islamic-state/2014/09/23/848d79ae-4315-11e4-b437-1a7368204804_story.html. For more background on the United States’ role in the Syrian conflict, see Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 108 AJIL 97 (2014)CrossRefGoogle Scholar, 108 AJIL 340 (2014); Crook, John R., Contemporary Practice of the United States, 107 AJIL 899 (2013)CrossRefGoogle Scholar.

57 H. E. Walid Al-Moualem, Deputy Prime Minister of the Syrian Arab Republic, Statement at the General Debate of the 69th Sess. of the UN General Assembly (Sept. 29, 2014), at http://www.un.org/en/ga/69/meetings/gadebate/pdf/SY_en.pdf.

58 Zeina Karam, Syrian Foreign Minister: The U.S. Said “We Are Not After the Syrian Army” Before Airstrikes, Associated Press, Sept. 30, 2014 at http://www.businessinsider.com/syrian-foreign-minister-the-us-said-we-are-not-after-the-syrian-army-before-airstrikes-2014-9#ixzz3MjKw64bF; see also Ryan Goodman, Taking the Weight off of International Law: Has Syria Consented to U.S. Airstrikes?, Just Security (Dec. 23, 2014), at http://justsecurity.org/18665/weight-international-law-syria-consented-airstrikes.

59 Ryan Goodman, Assad: Willing to Risk Direct Confrontation with U.S. over Moderate Rebels—and Stronger Opposition to U.S. Airstrikes, Just Security (Jan. 27, 2015), at http://justsecurity.org/19419/syria-assad-risk-direct-confrontation-moderate-rebels-opposition-airstrikes.

60 See Press Release, Sec’y General, Climate Change Summit Not about Talk, but Action, Secretary-General Says at Press Conference, Stressing “All of Us Can Make a Difference” (Sept. 23, 2014), at http://www.un.org/press/en/2014/sgsm16186.doc.htm.

61 Karoun Demirjian, Russia Condemns U.S. Airstrikes Against Islamic State in Syria, Wash. Post, Sept. 23, 2014, at http://www.washingtonpost.com/world/russia-condemns-us-airstrikes-against-islamic-state-in-syria/2014/09/23/de639dc6-42f4-11e4-b437-1a7368204804_story.html.

62 The Ministry of Foreign Affairs of the Russian Fed’n, Statement Regarding the Strikes on the Syrian Territory (Sept. 23, 2014), at http://www.mid.ru/bdomp/brp_4.nsf/e78a48070f128a7b43256999005bcbb3/2dc5b556c23ac4f044257d5c005ce420!OpenDocument.

63 Id.

64 Dapo Akande & Zachary Vermeer, The Airstrikes Against Islamic State in Iraq and the Alleged Prohibition on Military Assistance to Governments in Civil Wars, EJIL:TALK! (Feb. 2, 2015), at http://www.ejiltalk.org/the-airstrikes-against-islamic-state-in-iraq-and-the-alleged-prohibition-on-military-assistance-to-governments-in-civil-wars.

65 Id.

66 Aug. 7 Statement by the President, supra note 32.

67 War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973).

68 See, e.g., Letter from the President to the Speaker of the House of Representatives (Aug. 17, 2014), at http://www.whitehouse.gov/the-press-office/2014/08/17/letter-president-war-powers-resolution-regarding-iraq; Letter from the President to the Speaker of the House of Representatives (Aug. 8, 2014), at http://www.whitehouse.gov/the-press-office/2014/08/08/letter-president-war-powers-resolution-regarding-iraq [hereinafter Aug. 8 Letter from the President].

69 Aug. 8 Letter from the President, supra note 68; see also Office of the Press Sec’y, The White House, Press Gaggle by Press Secretary Josh Earnest en route Charlotte, NC, 8/26/2014 (Aug. 26, 2014), at http://www.whitehouse.gov/the-press-office/2014/08/26/press-gaggle-press-secretary-josh-earnest-en-route-charlotte-nc-8262014 (citing the president’s “powers as the Commander-in-Chief).

70 See, e.g., Robert Chesney, Article II and Iraq: Justifications for the Mosul Dam Operation in the WPR Notification, Lawfare (Aug. 17, 2014), at http://www.lawfareblog.com/2014/08/article-ii-and-iraq-justifications-for-the-mosul-dam-operation-in-the-wpr-notification.

71 Barack Obama, Statement by the President on ISIL (Sept. 10, 2014), at http://www.whitehouse.gov/the-press-office/2014/09/10/statement-president-isil-1 [hereinafter Sept. 10 Statement by the President].

72 U.S. Dep’t of Defense, U.S. Military Conducts Airstrikes in Support of Dam Operations, DOD News (Sept. 7, 2014), at http://www.defense.gov/news/newsarticle.aspx?id=123103.

73 Sept. 10 Statement by the President, supra note 71. Id.

74 Id.

75 Id.

76 Office of the Press Sec’y, The White House, Press Briefing by Press Secretary Josh Earnest, 9/11/2014 (Sept. 11, 2014), at http://www.whitehouse.gov/the-press-office/2014/09/11/press-briefing-press-secretary-josh-earnest-9112014 [hereinafter Sept. 11 Press Briefing].

77 Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, §2(a), 115 Stat. 224, 224 (2001) (codified at 50 U.S.C. §1541 (2012)); see also War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973). For additional background on the 2001 AUMF, see Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 108 AJIL 550 (2014)CrossRefGoogle Scholar; Crook, John R., Contemporary Practice of the United States, 107 AJIL 462 (2013)Google Scholar; Crook, John R., Contemporary Practice of the United States, 104 AJIL 656 (2010)Google Scholar; 103 AJIL 758 (2009); 103 AJIL 351 (2009); 100 AJIL 918 (2006); 100 AJIL 214 (2006); 99 AJIL 895 (2005); Murphy, Sean D., Contemporary Practice of the United States, 98 AJIL 186 (2004)Google Scholar; 97 AJIL 196 (2003); 96 AJIL 981 (2002); 96 AJIL 475 (2002); 96 AJIL 237 (2002).

78 Sept. 10 Conference Call, supra note 37.

79 See, e.g., Letter from President Obama to the Speaker of the House of Representatives (Sept. 23, 2014), at http://www.whitehouse.gov/the-press-office/2014/09/23/letter-president-war-powers-resolution-regarding-syria.

80 Charlie Savage, Obama Sees Iraq Resolution as a Legal Basis for Airstrikes, Official Says, N.Y. Times, Sept. 13, 2014, at A8.

81 Pub. L. No. 107-243, §3(a), 116 Stat. 1498 (2002) (codified at 50 U.S. §1541 note (2012)). For additional background on the 2002 AUMF, see Murphy, Sean D., Contemporary Practice of the United States, 97 AJIL 419 (2003)Google Scholar; 96 AJIL 956 (2002).

82 Spencer Ackerman, White House Says Expired War Powers Timetable Irrelevant to ISIS Campaign, Guardian (Oct. 16, 2014), at http://www.theguardian.com/us-news/2014/oct/15/white-house-war-powers-resolution-iraq (quoting National Security Council Spokeswoman Bernadette Meehan).

83 Crook, John R., Contemporary Practice of the United States, 107 AJIL 674, 677 (2013)Google Scholar; see also Remarks of President Barack Obama (May 23, 2013), at http://www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-barack-obama [hereinafter May 23 Remarks of President Obama].

84 May 23 Remarks of President Obama, supra note 83.

85 Id. See also Press Release, The White House, Remarks As Prepared for Delivery by Assistant to the President for Homeland Security and Counterterrorism Lisa Monaco (Nov. 19, 2013), at http://www.whitehouse.gov/the-press-office/2013/11/19/remarks-prepared-delivery-assistant-president-homeland-security-and-coun (reiterating that “the President is committed to working with Congress to refine, and ultimately repeal the mandate of the AUMF.”); White House Press Release, Background Conference Call on the President’s Commencement Address at West Point (May 28, 2014), at http://www.whitehouse.gov/the-press-office/2014/05/28/background-conference-call-presidents-commencement-address-west-point (suggesting that “[the United States] shouldn’t just have open-ended authorities for the use of military force that continue indefinitely;... the AUMF in 2001 was written for a specific purpose and time”).

86 Letter from Susan M. Rice, National Security Advisor, to John A. Boehner, Speaker of the House (July 25, 2014), at http://armedservices.house.gov/index.cfm/files/serve?File_id=D6A70EF0-E7ED-4A8B-B39B-9774CE10B7D3.

87 Sept. 11 Press Briefing, supra note 76.

88 Sept. 10 Conference Call, supra note 37.

89 Transcript of Background Conference Call on the Administration’s Request for Overseas Contingency Operations (Nov. 7, 2014), at http://www.whitehouse.gov/the-press-office/2014/11/07/background-conference-call-administrations-request-overseas-contingency-.

90 Sept. 10 Conference Call, supra note 37.

91 U.S. Senate Committee on Foreign Relations, Hearing on United States Strategy to Defeat the Islamic State in Iraq and the Levant (Sept. 17, 2014), at http://www.foreign.senate.gov/hearings/united-states-strategy-to-de-feat-the-islamic-state-in-iraq-and-the-levant; see also Transcript: John Kerry Testifies on War Against ISIS, CNN (Sept. 17, 2014), at http://transcripts.cnn.com/TRANSCRIPTS/1409/17/cnr.07.html.

92 Sept. 23 Conference Call, supra note 39.

93 Sept. 23 Statement by the President, supra note 44.

94 Sept. 23 Conference Call, supra note 39.

95 Id. ; see also Robert Chesney, The 2001 AUMF: From Associated Forces to (Disassociated) Successor Forces, Lawfare (Sept. 10, 2014), at http://www.lawfareblog.com/2014/09/the-2001-aumf-from-associated-forces-to-disassociated-successor-forces (describing the associated forces theory).

96 Sept. 23 Conference Call, supra note 39.

97 Id.

98 See, e.g., Harold Hongju Koh, Obama’s ISIL Legal Rollout: Bungled, Clearly. But Illegal? Really?, Just Security (Sept. 29, 2014), at http://justsecurity.org/15692/obamas-isil-legal-rollout-bungled-clearly-illegal-really.

99 Office of the Press Sec’y, The White House, Remarks by the President in a Press Conference (Nov. 5, 2014), at http://www.whitehouse.gov/the-press-office/2014/11/05/remarks-president-press-conference.

100 Id.

101 Office of the Press Sec’y, The White House, Briefing by Press Secretary Josh Earnest (Nov. 6,2014), at http://www.whitehouse.gov/the-press-office/2014/11/06/press-briefing-press-secretary-josh-earnest-1162014.

102 See, e.g., Press Release, Senator Tim Kaine, On Senate Floor, Kaine Calls for Congressional Authorization of U.S. Military Action in Iraq & New AUMF (June 25, 2014), at http://www.kaine.senate.gov/press-releases/on-senate-floor-kaine-calls-for-congressional-authorization-of-us-military-action-in-iraq-and-new-aumf (“[T]he current crisis in Iraq... is not the kind of conflict where the President can or should act unilaterally.... [T]he President must seek Congressional authorization.”); Press Release, Senator John McCain, McCain & Graham in the New York Times: “Stop Dithering, Confront ISIS” (Aug. 29, 2014), at http://www.mccain.senate.gov/public/index.cfm/2014/8/mccain-graham-in-the-new-york-times-stop-dithering-confront-isis (“We have consistently advocated revising the [2001 AUMF] that has provided congressional backing for counterterrorism operations.... Now could be the right time to update this authorization in light of evolving terrorist threats like ISIS.”).

103 Jonathan Weisman, Mark Landler & Jeremy W. Peters, As Obama Makes Case, Congress Is Divided on Campaign Against Militants, N.Y. Times, Sept. 9, 2014, at A16.

104 Mark Landler & David E. Sanger, Obama to Seek Congressional Backing for Military Campaign Against ISIS, N.Y. Times, Nov. 6, 2014, at A12.

105 John Kerry, Sec’y of State, Testimony Before the Senate Foreign Relations Committee (Dec. 9, 2014), at http://www.state.gov/secretary/remarks/2014/12/234876.htm.

106 Id. (“I note that Chairman Menendez has suggested that a three-year limitation should be put into an AUMF. We support that proposal, but we support it subject to a provision that we should work through together that provides for extension in the event that circumstances require it.”)

107 See Jennifer Bendery, ISIS War Authorization Language Could Come in “a Few Weeks,” Says Bob Corker, Huffington Post (Jan. 13, 2015), at http://www.huffingtonpost.com/2015/01/13/war-authorization-obama_n_6465120.html; Burgess Everett, Hill Leaders More Hopeful on War Authorization After W. H. Meeting, Politico (Jan. 13, 2015), at http://www.politico.com/story/2015/01/hill-leaders-war-authorization-white-house-114226.html.

108 In his 2015 State of the Union address, Obama “called on this Congress to show the world that we are united in this mission by passing a resolution to authorize the use of force against ISIL.” Office of the Press Sec’y, The White House, Remarks by the President in State of the Union Address (Jan. 20, 2015), at http://www.whitehouse.gov/the-press-office/2015/01/20/remarks-president-state-union-address-january-20-2015.

109 Lisa Ferdinando, Dempsey: Keep All Options on Table for Use of Force Against ISIL, DOD News (Jan. 23, 2015), at http://www.defense.gov/news/newsarticle.aspx?id=128023.

1 Wales Summit Declaration paras. 74–75, Sept. 5, 2014, available at http://www.nato.int/cps/en/natohq/official_texts_112964.htm.

2 Wales Summit Declaration, supra note 1, para. 72 (affirming that “cyber defence is part of NATO’s core task of collective defence”). See North Atlantic Treaty, art. 5, Apr. 4, 1949, 63 Stat. 2241, 34 UNTS 243 (“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.”). See also NATO, Collective Defence: Invocation of Article 5 (Nov. 11, 2014), at http://www.nato.int/cps/en/natohq/topics_110496.htm (noting that Article 5 was invoked “for the first time in NATO’s history,” in response to the September 11 terrorist attacks on the United States); Murphy, Sean D., Terrorist Attacks on World Trade Center and Pentagon, 96 AJIL 237, 244 (2002)CrossRefGoogle Scholar (discussing legal implications of September 11 attacks and the U.S. response).

3 Wales Summit Declaration, supra note 1, paras. 72–73.

4 See NATO, Cyber Defence (Sept. 30, 2014), at http://www.nato.int/cps/en/natohq/topics_78170.htm.

5 At this meeting, NATO’s secretary general is quoted as saying, “[c]yber attacks do not stop at national borders. Our defences should not, either.” NATO, Defence Ministers Make Progress on Cyber Protection (June 4, 2013), at http://www.nato.int/cps/en/natolive/news_101143.htm. See also Cyberspace Security, NATO Multimedia Library, at http://www.natolibguides.info/cybersecurity (visited Nov. 23, 2014).

6 Wales Summit Declaration, supra note 1.

7 Steve Ranger, NATO Updates Cyber Defence Policy as Digital Attacks Become a Standard Part of Conflict, ZDNET (June 30, 2014), at http://www.zdnet.com/nato-updates-cyber-defence-policy-as-digital-attacks-become-a-standard-part-of-conflict-7000031064.

8 Marie Harf, Deputy Spokesperson, U.S. Dep’t of State, Daily Press Briefing (Sept. 5, 2014), at http://www.state.gov/r/pa/prs/dpb/2014/09/231306.htm.