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Contemporary Practice of the United States Relating to International Law

Published online by Cambridge University Press:  20 January 2017

Kristina Daugirdas  and
Julian Davis Mortenson
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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 2 , April 2015 , pp. 407 - 432
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Copyright © American Society of International Law 2015

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References

1 Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 108 AJIL 94, 109 (2014)CrossRefGoogle Scholar.

2 Id.

3 Background Briefing on Secretary Kerry’s Meetings on the Iran Nuclear Negotiations, U.S. Dep’t of State (Mar. 4, 2015), at http://www.state.gov/r/pa/prs/ps/2015/03/238149.htm; Extension of Iran Nuclear Talks, U.S. Dep’t of State (July 18, 2014), at http://www.state.gov/secretary/remarks/2014/07/229491.htm; Solo Press Availability in Vienna, Austria, U.S. Dep’t of State (Nov. 24, 2014), at http://www.state.gov/secretary/remarks/2014/11/234363.htm.

4 Cotton and 46 Fellow Senators to Send Open Letter to the Leaders of the Islamic Republic of Iran, Tom Cotton, U.S. Sen. For Arkansas (Mar. 9, 2015), at http://www.cotton.senate.gov/content/cotton-and-46-fellow-sena-tors-send-open-letter-leaders-islamic-republic-iran; see also Baker, Peter,G.O.P. Senators Write to Tehran on Nuclear Pact, N.Y. Times, Mar. 10, 2015, at A1Google Scholar.

5 Sen. Tom Cotton et al., An Open Letter to the Leaders of the Islamic Republic of Iran (Mar. 9, 2015), available at http://www.cotton.senate.gov/sites/default/files/150309%20Cotton%20Open%20Letter%20to%20Iranian%20Leaders.pdf [hereinafter Open Letter to Iran].

6 See Steinhauer, Jennifer & Davis, Julie Hirschfeld, Irate Democrats Denounce G.O.P. on Iran Letter, N.Y. Times, Mar. 11, 2015, at A11Google Scholar.

7 Remarks by President Obama and European Council President Donald Tusk Before Bilateral Meeting, The White House (Mar. 9, 2015), at https://www.whitehouse.gov/the-press-office/2015/03/09/remarks-president-obama-and-european-council-president-donald-tusk-bilat.

8 Statement by the Vice President on the March 9 Letter from Republican Senators to the Islamic Republic of Iran, The White House (Mar. 9, 2015), at https://www.whitehouse.gov/the-press-office/2015/03/09/statement-vice-president-march-9-letter-republican-senators-islamic-repu.

9 Reid Remarks on Senate Republican’s Letter Undermining President Obama’s Efforts to Prevent Iran From Obtaining a Nuclear Weapon, Harry Reid, U.S. Sen. for Nevada (Mar. 9, 2015), at http://www.reid.senate.gov/press_releases/2015-09-03-reid-remarks-on-senate-republicans-letter-undermining-president-obamas-efforts-to-prevent-iran-from-obtaining-a-nuclear-weapon (“[I]t is unprecedented for one political party to directly intervene in an international negotiation, with the sole goal of embarrassing the President.... This is not a time to undermine our Commander-in-Chief purely out of spite.”).

10 Tom Cotton: I Want Complete Nuclear Disarmament, MSNBC Morning Joe (Mar. 10, 2015), at http://www.msnbc.com/morning-joe/watch/tom-cotton—i-want-complete-nuclear-disarmament-410915907561. Cotton also stressed that any deal with Iran should be submitted to the Senate for approval. See id.

11 See Jeremy Diamond, Mitch McConnell Rebukes Iran Letter Criticism, CNN (Mar. 15, 2015), at http://www.cnn.com/2015/03/15/politics/mitch-mcconnell-iran-letter-john-kerry; Patricia Zengerle, Republicans Stand by Iran Letter, Despite Furor, Reuters (Mar. 12, 2015), at http://www.reuters.com/article/2015/03/12/us-iran-nuclear-congress-idUSKBN0M82L120150312.

12 Brian Murphy, Iran’s Leader: Fall of U.S. “Political Ethics” Highlighted by GOP Letter, Wash. Post, Mar. 12, 2015, available at http://www.washingtonpost.com/world/middle_east/irans-leader-fall-of-us-political-ethics-highlighted-by-gop-letter/2015/03/12/673dc302-c8a5-11e4-aa1a-86135599fb0f_story.html. See also Erdbrink, Thomas, G.O.P. Letter by Republican Senators Is Evidence of “Decline,” Iranian Says, N.Y. Times, Mar. 13, 2015, at A3Google Scholar.

13 Murphy, supra note 12.

14 Background Briefing on P5+1 Talks With Iran, U.S. Dep’t of State (Mar. 16, 2015), at http://www.state.gov/r/pa/prs/ps/2015/03/239347.htm [hereinafter Background Briefing on P5+1 Talks].

15 Id.

16 Id.

17 Open Letter to Iran, supra note 5.

18 SeeVienna Convention on the Law of Treaties, art. 27, May 23, 1969, 1155 U.N.T.S. 331 (A party may not invoke the provisions of its internal law as justification for failure to perform a treaty.”); see also id. art. 46(1) (“A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.”); id. art. 46(2) (“A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and good faith.”).

19 Jen Psaki, Daily PressBriefing, U.S Dep’t of State (Mar. 9, 2015), at http://www.state.gov/r/pa/prs/dpb/2015/03/238679.htm [hereinafter Psaki Mar. 9 Press Briefing].

20 Foreign Minister Javad Zarif, Response to the Letter of US Senators, Islamic Republic of Iran Ministry of Foreign Affairs (Mar. 9, 2015), at http://en.mfa.ir/index.aspx?siteid=3&fkeyid=&siteid=3&fkeyid=&siteid=3&pageid=1997&newsview=330948.

21 Open Letter to Iran, supra note 5.

22 U.S. Const., art. II, § 2, cl. 2.

23 See Vienna Convention on the Law of Treaties, art. 16, supra note 18.

24 Stanley Bach & David M. Ackerman, Cong. Research Serv., S. Prt. 106–71, Treaties and Other International Agreements: The Role of the United States Senate 117 (2001).

25 Background Briefing on P5+1, supra note 14 (What we are doing here is reaching a political understanding, and the ability for it to be durable is about the quality of the agreement.”); Press Briefing by Press Secretary Josh Earnest, 3/9/2014, The White House (Mar. 9, 2015), at https://www.whitehouse.gov/the-press-office/2015/03/09/press-briefing-press-secretary-josh-earnest-392014 (“[W]e’re seeking commitments from the Iranian government.”) [hereinafter Earnest Mar. 9 Press Briefing]; Psaki Mar. 9 Press Briefing, supra note 19 (“It’s not a treaty.... [O]ur preference is to come to a framework, an understanding—a political understanding....”).

26 Jen Psaki, Daily Press Briefing, U.S. Dep’t of State (Mar. 12, 2015), at http://www.state.gov/r/pa/prs/dpb/2015/03/238840.htm. A spokeswoman noted that “the nonbinding international agreement or international arrangement that consists of political commitments provides us with that flexibility to snap back sanctions in a faster manner,” adding that “[t]his is the path we’ve determined is the best path forward.” Id.

27 Psaki Mar. 9 Press Briefing, supra note 19.

28 Earnest Mar. 9 Press Briefing, supra note 25.

29 Interview with Margaret Brennan of CBS, U.S. Dep’t of State (Mar. 15, 2015), at http://www.state.gov/secretary/remarks/2015/03/238892.htm.

30 John Yoo, More on the Cotton Letter, Nat’l Rev. (Mar. 12, 2015), at http://www.nationalreview.com/corner/415320/more-cotton-letter-john-yoo.

31 Tom Cotton, Why We Wrote the Letter to Iran, USA Today (Mar. 10, 2015), http://www.usatoday.com/story/opinion/2015/03/10/iran-nuclear-talks-letter-47-senators-sen-tom-cotton-editorials-debates/24721971.

32 See Vagts, Detlev F., The Logan Act: Paper Tiger or Sleeping Giant?, 60 AJIL 268, 270 (1966)CrossRefGoogle Scholar (quoting 1 The Compilation of the Messages and Papers of the Presidents 267 (Richardson ed., 1897)).

33 Logan Act, 1 Stat. 613, ch. 1 (1799) (codified as amended at 18 U.S.C. § 953 (2012)).

34 Michael V. Seitzinger, Cong. Research Serv., RL33265, Conducting Foreign Relations Without Authority: The Logan Act 3 (2006), available at http://fpc.state.gov/documents/organization/61050.pdf.

35 See Scoville, Ryan M., Legislative Diplomacy, 112 Mich. L. Rev. 331, 352–53 (2013)Google Scholar.

36 See, e.g., Jeremy Diamond, Did 47 Republican Senators Break the Lawin Plain Sight?, CNN (Mar. 11, 2015), at http://www.cnn.com/2015/03/10/politics/tom-cotton-iran-letter-logan-act.

37 Compare Steve Vladeck, The Iran Letter and the Logan Act, Lawfare (Mar. 10, 2015), at http://www.lawfareblog.com/iran-letter-and-logan-act (suggesting that liability and enforcement were both unlikely), with Peter Spiro, GOP Letter Might Be Unconstitutional. Is It Also Criminal?, Opinio Juris (Mar. 9, 2015), at http://opiniojuris.org/2015/03/09/gop-iran-letter-might-be-unconstitutional-is-it-also-criminal (suggesting liability was possible but enforcement was unlikely).

38 18 U.S.C. § 953 (2012).

39 Diamond, supra note 36.

40 18 U.S.C § 953 (2012).

41 Seitzinger, supra note 34, at 9 (quoting Digest ofunited States Practice in International Law 1975, at 750 (Eleanor C. McDowell ed., 1976)). See also Vladeck, supra note 37 (suggesting that defenses of void-for-vagueness and desuetude would also be available).

42 Sec’y of State John Kerry, Remarks to the Press, U.S. Dep’t Of State (Mar. 21, 2015), at http://www.state.gov/secretary/remarks/2015/03/239655.htm; Senior Administration Officials on P5+1 Talks WithIran, U.S. Dep’t of State (Mar. 17,2015), at http://www.state.gov/r/pa/prs/ps/2015/03/239368.htm;Background Briefing on P5+1, supra note 14.

43 Joint Statement by EU High Representative Federica Mogherini and Iranian Foreign Minister Javad Zarifin Switzerland, European Union (Apr. 2, 2015), at http://eeas.europa.eu/statements-eeas/2015/150402_03_en.htm [hereinafter EU Joint Statement].

44 Id.

45 EU Joint Statement, supra note 43.

46 See Parameters for a Joint Comprehensive Plan of Action Regarding the Islamic Republic of Iran’s Nuclear Program, U.S. Dep’t of State(Apr. 2,2015),at http://www.state.gov/r/pa/prs/ps/2015/04/240170.htm (fact sheet detailing U.S. understanding of the JCPOA, including limitations on enrichment; conversion of the Fordow facility; limitations at the Natanz facility; inspections and transparency; reactors and reprocessing; and sanctions) [hereinafter Parameters for JCPOA]; See also Press Availability in Lausanne, Switzerland, U.S. Dep’t of State (Apr. 2, 2015), at http://www.state.gov/secretary/remarks/2015/04/240196.htm.

47 Parameters for JCPOA, supra note 46.

48 Statement by the President on the Framework to Prevent Iran from Obtaining a Nuclear Weapon, The White House (Apr. 2, 2015), at https://www.whitehouse.gov/the-press-office/2015/04/02/statement-president-framework-prevent-iran-obtaining-nuclear-weapon. But he also emphasized “nothing is agreed until everything is agreed” and noted “if the verification and inspection mechanisms don’t meet the specifications of our nuclear and security experts, there will be no deal.” Id.

49 Corker: Senate Foreign Relations Committee Unanimously Approves Iran Nuclear Agreement Review Act of 2015, U.S.S. Comm. on Foreign Relations (Apr. 14, 2014), at http://www.foreign.senate.gov/press/chair/release/corker-senate-foreign-relations-committee-unanimously-approves-iran-nuclear-agreement-review-act-of-2015.

50 Iran Nuclear Agreement Review Act of 2015, S. 615, 114th Cong. § 2 (2015) (as reported by S. Comm. on Foreign Relations, Apr. 14, 2015).

51 Id.

52 Id.

53 Id.

54 Josh Earnest, Daily Press Briefing, The White House (Apr. 16, 2015), at https://www.whitehouse.gov/the-press-office/2015/04/16/press-briefing-press-secretary-josh-earnest-4162015.

1 Statement by the President on Cuba Policy Changes, The White House (Dec. 17, 2014), at https://www.whitehouse.gov/the-press-office/2014/12/17/statement-president-cuba-policy-changes.

2 The potential normalization of relations with Cuba has played a role in United States foreign policy for decades. In 1977, U.S. President Jimmy Carter listed as a goal of his administration the desire to “re-establish normal relationships” with the fourteen countries that did not have diplomatic relations with the United States when he took office, including “even more controversial nations like... Cuba....” Boyd, John, Contemporary Practices of the United States, 71 AJIL 753, 753 (1977)CrossRefGoogle Scholar (citing 13 Weekly Comp. of Pres. Doc 880 (June 20, 1977)).

3 Hans, Rupinder, The United States’ Economic Embargo of Cuba: International Implications of the Cuban Liberty and Democratic Solidarity Act of 1995, 5 J. Int’l L. & Prac. 327, 330 (1996)Google Scholar.

4 A Guide to the United States’ History Of Recognition, Diplomatic, And Consular Relations, by Country, Since 1776: Cuba, U.S. Dep’t of State, Office of the Historian, at http://history.state.gov/countries/cuba (last visited June 19, 2015).

5 Foreign Assistance Act of 1961, § 620, 22 U.S.C. § 2370 (1994).

6 Proclamation 3447, Embargo on All Trade with Cuba, 27 Fed. Reg. 1083, 3 C.F.R. 157 (1962).

7 Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 108 AJIL 826, 826–28 (2014)CrossRefGoogle Scholar; Lowenfeld, Andreas, Congress and Cuba: The Helms-Burton Act, 90 AJIL 419, 421 (1996)CrossRefGoogle Scholar (“From time to time... successive Presidents, in exercise of their foreign affairs power and of the broad discretion given by the Trading with the Enemy Act, [have] modified the embargo.”); Crook, John R., Contemporary Practice of the United States, 103 AJIL 741, 745 (2009)Google Scholar (“With regard to Cuba, Congress has passed several laws governing permitted travel, while leaving the Executive Branch discretion to adjust many aspects of the travel regulations as circumstances dictate. For the other designated [state sponsors of terrorism], Congress has taken the view that travel to these countries generally should be unencumbered. The Executive Branch has in turn promulgated comprehensive regulations governing, inter alia, commerce with designated states and travel to Cuba. These regulations are designed to balance multiple, competing foreign policy considerations and achieve important, often changing, foreign policy objectives.”).

8 Cuban Democracy Act, 22 U.S.C. § 6001 et seq. (1992). A stated goal of the act was “to seek a peaceful tran sition to democracy and a resumption of economic growth in Cuba through the careful application of sanctions directed at the Castro government and support for the Cuban people.”

9 Cuban Liberty and Democratic Solidarity (Libertad) Act [Helms-Burton Act], 22 U.S.C. §§6021–6091. The Helms-Burton Act codified the embargo as legislation rather than a series of executive orders and foreign policy and extended it to apply to foreign companies trading with Cuba. Title IV of the Act also allowed for the denial of visas to anyone who allegedly “trafficked” in property formerly owned by U.S. citizens but nationalized by Cuba.

10 In the press guidance issued simultaneously with guidelines in the Federal Register regarding Title IV, the Department of State emphasized that “the Act is meant to pressure Cuba to change its policies and begin reforms. It also reflects the concerns of U.S. nationals who see foreign companies using confiscated assets in Cuba to which they have claims.” Nash, Marian, Contemporary Practices of the United States, 91 AJIL 93, 98 (1997)Google Scholar (citing Dept. of State to All Diplomatic and Consular Posts, telegram 123385(June 14, 1996).See also Fed. Reg. 30, 655 (1996)).

11 Statement by the President, supra note 1.

12 Id. (“While I have been prepared to take additional steps for some time, a major obstacle stood in our way—the wrongful imprisonment, in Cuba, of a U.S. citizen and USAID sub-contractor Alan Gross for five years. Over many months, my administration has held discussions with the Cuban government about Alan’s case, and other aspects of our relationship. His Holiness Pope Francis issued a personal appeal to me, and to Cuba’s President Raul Castro, urging us to resolve Alan’s case, and to address Cuba’s interest in the release of three Cuban agents who have been jailed in the United States for over 15 years.”).

13 Daily Press Briefing, Deputy Spokesperson Marie Harf, U.S. Dep’t of State (Jan. 12, 2015), at http://www.state.gov/r/pa/prs/dpb/2015/01/235866.htm#CUBA (“[T]he Cuban Government has notified us that they have completed the release of the 53 political prisoners that they had committed to free. We welcome this very positive development and are pleased that the Cuban Government followed through on this commitment. These political prisoners were individuals who had been cited by various human rights organizations as being imprisoned by the Cuban Government for exercising internationally protected freedoms or for their promotion of political and social reforms in Cuba. During our discussions with the Cubans we shared the names of individuals jailed in Cuba on charges related to their political activities. The Cuban Government made this sovereign decision to release those individuals as Raul Castro indicated in his December 17th speech. I know there’s been a lot of questions about the list. It’s been delivered to the Hill, to a number of folks on the both the Senate and the House side, both Democrats and Republican leadership and chairs and rankings of our key committees.”).

14 Statement by the President, supra note 1.

15 Id.

16 Fact Sheet: Treasury and Commerce Announce Regulatory Amendments to the Cuba Sanctions, U.S. Dep’t of the Treasury (Jan. 15, 2015), at http://www.treasury.gov/press-center/press-releases/Pages/jl9740.aspx. The Treasury regulations can be found at 31 C.F.R. § 515 (2015); the Commerce regulations can be found at 15 C.F.R. § 730–774 (2015).

17 Id.

18 Statement of Secretary Lew on Amendments to the Cuban Assets Control Regulations, U.S. Dep’t of the Treasury (Jan. 15, 2015), at http://www.treasury.gov/press-center/press-releases/Pages/jl9739.aspx.

19 Media Note, Assistant Secretary Roberta S. Jacobson to Travel to Cuba, U.S. Department of State, U.S. Dep’t of State (Jan. 20, 2015), at http://www.state.gov/r/pa/prs/ps/2015/01/236121.htm. U.S. and Cuban officials meet semi-annually to discuss the implementation of the 1994 and 1995 U.S.-Cuba Migration Accords. Migration Talks With Cuba, U.S. Dep’t of State (July 9, 2014), at http://www.state.gov/r/pa/prs/ps/2014/07/228992.htm.

20 Press Availability Following Re-establishment of Relations Talks, Roberta S. Jacobson, Assistant Secretary, Bureau of Western Hemisphere Affairs, U.S. Dep’t of State (Jan. 22, 2015), at http://www.state.gov/p/wha/rls/prsrl/236230.htm.

21 Id. (“[W]hile [the Vienna Convention] may not answer every question in the particular and rather peculiar relationship that we have had in the past, it is certainly the instrument under which normal diplomatic relations are conducted, and the Vienna Convention on Consular Relations and the Vienna Convention on Diplomatic Relations are the legal instruments under which we will conduct our diplomatic relations as we re-establish them.”).

22 Press Availability with Assistant Secretary of State for Western Hemisphere Affairs, U.S. Dep’t of State (Feb. 27, 2015), at http://www.state.gov/r/pa/prs/ps/2015/02/238040.htm.

23 Id.

24 Background Briefing on Discussions with Cuba, U.S. Dep’t of State (Mar. 13, 2015), at http://www.state.gov/r/pa/prs/ps/2015/03/238888.htm. Addressing Cuba’s stated support of Venezuela, a senior State Department official explained, “obviously we’re disappointed with the statement that Cuba made. We don’t think that our taking sovereign actions of the United States Government on our financial system against human rights abusers or those involved in public corruption or in eroding democratic institutions—we believe that’s our right to do and it’s a sovereign decision, and we defend that.” Id.

25 Statement by the Press Secretary on the Proposed Rescission of Cuba’s Designation as a State Sponsor of Terrorism, The White House (Apr. 14, 2015), at https://www.whitehouse.gov/the-press-office/2015/04/14/statement-press-secretary-proposed-rescission-cuba-s-designation-state-s.

26 Press Release, Sen. Marco Rubio, Rubio Comments on Reports of Change in U.S. Policy oward Cuba, Release of Alan Gross (Dec. 17, 2014), available at http://www.rubio.senate.gov/public/index.cfm/press-releases?ID=d6c39dd4-8d06-4de3-8065-5cb27d865f1f (“The President’s decision to reward the Castro regime and begin the path toward the normalization of relations with Cuba is inexplicable.... Cuba, like Syria, Iran, and Sudan, remains a state sponsor of terrorism. It continues to actively work with regimes like North Korea to illegally traffic weapons in our hemisphere in violation of several United Nations Security Council Resolutions. It colludes with America’s enemies, near and far, to threaten us and everything we hold dear. But most importantly, the regime’s brutal treatment of the Cuban people has continued unabated.... I intend to use my role as incoming Chairman of the Senate Foreign Relations Committee’s Western Hemisphere subcommittee to make every effort to block this dangerous and desperate attempt by the President to burnish his legacy at the Cuban people’s expense.”).

27 Julian Ku, Does President Obama Need Congress to Lift the Embargo on Cuba? Yes., Opinio Juris (Jan. 21, 2015), at http://opiniojuris.org/2015/01/21/president-obama-need-congress-lift-embargo-cuba-yes (suggesting that Helms-Burton Act appears to codify the Office of Foreign Assets Control’s rules that that had originally been issued as regulations pursuant to TWEA, and that calls for the president to unilaterally lift the embargo are legally unsupportable).

28 Press Briefing by Press Secretary Josh Earnest, The White House (Dec. 18, 2014), at https://www.whitehouse.gov/the-press-office/2014/12/18/press-briefing-press-secretary-josh-earnest-121814.

29 Id.

30 Id. See also Davis, Julie Hirschfeld & Gordon, Michael R., Obama Will Move Swiftly to Lift Several Restrictions Against Cuba, N.Y. Times, Dec. 19, 2014, at A145,Google Scholaravailable at http://www.nytimes.com/2014/12/19/us/politics/obama-intends-to-lift-several-restrictions-against-cuba-on-his-own.html (describing internal assessment of “how far Mr. Obama could go to unilaterally... lift restrictions on travel, commerce and financial activities,” which resulted in the White House conclusion that “he had broad authority to do so without violating the embargo’s scope”).

1 Schmidt, Michael S., Perlroth, Nicole & Goldstein, Matthew, FBI Says Little Doubt North Korea HitSony, N.Y. Times, Jan. 7, 2015, at B1,Google Scholaravailable at http://www.nytimes.com/2015/01/08/business/chief-says-fbi-has-no-doubt-that-north-korea-attacked-sony.html.

2 Update on Sony Investigation, Federal Bureau of Investigation (Dec. 19, 2014), at http://www.fbi.gov/news/pressrel/press-releases/update-on-sony-investigation (“[T]he FBI now has enough information to conclude that the North Korean government is responsible for these actions.”).

3 Remarks by the President in Year-End Press Conference, The White House (Dec. 1, 2014), at https://www.whitehouse.gov/the-press-office/2014/12/19/remarks-president-year-end-press-conference.

4 4 Id.

5 North Korea Demands Joint Inquiry with US into Sony Pictures Hack, The Guardian, Dec. 20, 2014, available at http://www.theguardian.com/world/2014/dec/20/north-korea-proposes-joint-inquiry-us-sony-pictures-hack.

6 Mari Harf, Daily Press Briefing, Dep’t of State (Dec. 22,2014), at http://www.state.gov/r/pa/prs/dpb/2014/12/235472.htm.

7 North Korea s Internet Takes a Hit After Sony Hack, CBS News (Dec. 22, 2014), at http://www.cbsnews.com/news/north-korea-internet-down/(“Industry and intelligence sources tell CBS News... that North Korean Internet has been ‘slow and spotty’ for a couple of days and crashed completely at noon (ET) Monday [Dec. 22].”); Key N. Korean Websites Suffer Short Outages After Shutdown, N.Y. Times, Dec. 23, 2015, available at http://www.nytimes.com/aponline/2014/12/23/world/asia/ap-as-nkorea-sony-hacking.html.

8 North Korea’s Internet Temporarily Blacked Out, The Guardian, Dec. 23, 2014, available at http://www.theguardian.com/world/2014/dec/22/north-korea-suffers-internet-blackout.

9 Perlroth, Nicole & Sanger, David E., North Korea Loses Its Link to the Internet, N.Y. Times, Dec. 22, 2014, at A1,Google Scholaravailable at http://www.nytimes.com/2014/12/23/world/asia/attack-is-suspected-as-north-korean-internet-collapses.html?ref=todayspaper.

10 Letter—Imposing Additional Sanctions with Respect to North Korea, The White House (Jan. 2, 2015), available at https://www.whitehouse.gov/the-press-office/2015/01/02/letter-imposing-additional-sanctions-respect-north-korea.

11 In an interview on CNN’s State of the Union, Senator John McCain called the attack “a manifestation of a new form of warfare.” Kate Sheppard, McCain Calls Sony Hack an ‘Act of War’, Huffington Post (Dec. 21, 2014), at http://www.huffingtonpost.com/2014/12/21/sony-north-korea-war_n_6362454.html.

12 Senator Robert Menendez disputed Obama’s description of the attack as vandalism in an interview, calling the hack “terrorism.” Megan R. Wilson, Democratic Senator Calls Sony Hack ‘Terrorism’, The Hill (Jan. 4, 2015), at http://thehill.com/policy/international/228439-democratic-senator-calls-sony-hack-an-act-of-terrorism.

13 In an interview with CNN, Obama specifically stated the attack was not “an act of war” but rather one of “cybervandalism.” Eric Bradner, Obama: North Korea’s Hack not War, but ‘Cybervandalism’, CNN (Dec. 24, 2014), at http://www.cnn.com/2014/12/21/politics/obama-north-koreas-hack-not-war-but-cyber-vandalism/.

14 Condemning Cyber-Attack by North Korea, U.S. Dep’t of State (Dec. 19, 2014), at http://www.state.gov/secretary/remarks/2014/12/235444.htm; see also Bureau of East Asian and Pacific Affairs, U.S. Relations with North Korea, U.S. Dep’t of State (Feb. 5, 2015), at http://www.state.gov/r/pa/ei/bgn/2792.htm (characterizing the Sony hack as “the DPRK’s cyber attack targeting Sony Pictures Entertainment”).

15 U.N. Charter art. 51.

16 NATO Cooperative Cyber Defence Centre of Excellence, Tallinn Manual on the International Law Applicable to Cyber Warfare 45 (Michael N. Schmitt ed., 2013), available at https://ccdcoe.org/research.html; see also Michael Schmitt, International Law and Cyber Attacks: Sony vs. North Korea, Just Security (Dec. 17, 2014), http://justsecurity.org/18460/international-humanitarian-law-cyber-attacks-sony-v-north-korea/ (suggesting that a cyber attack that rises to the level of an “armed attack” would entitle the United States to “respond forcefully, whether by kinetic or cyber means.”) [hereinafter Schmitt, JUST Security].

17 Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice in the United States, 109 AJIL 175, 211 (2015)CrossRefGoogle Scholar.

18 Wales Summit Declaration, Issued by the Heads of State and Government Participating in the Meeting of the North Atlantic Council in Wales, North Atlantic Treaty Organization [NATO], ¶ 72 (Sept. 5, 2014), available at http://www.nato.int/cps/en/natohq/official_texts_112964.htm.

19 Schmitt, Just Security, supra note 16.

20 See Int’l Law Comm’n, 53rd Sess., Responsibility of States for Internationally Wrongful Acts, U.N. Doc. A/RES/56/83, arts. 49–53 (2001), available at http://legal.un.org/ilc/texts/instruments/english/draft%20articles/9_6_2001.pdf.

21 Id. art. 51.

22 See Treasury Imposes Sanctions Against the Government of the Democratic People’s Republic of Korea, U.S. Dep’t of Treasury (Jan. 2, 2015), at http://www.treasury.gov/press-center/press-releases/Pages/jl9733.aspx.

23 Representative Michael McCaul, Republican Chairman of the House Homeland Security Committee, responded affirmatively when questioned whether the North Korea Internet outage was a response to the attack, but would not say to whether the United States orchestrated the outage. North Korea Web Outage Response to Sony Hack, Lawmaker Says, Bloomberg Politics (Mar. 17, 2015), at http://www.bloomberg.com/politics/articles/2015-03-17/north-korea-web-outage-was-response-to-sony-hack-lawmaker-says.

24 See Kristen Eichensehr, The Sony Hack: Norms and North Korea, Just Security (Dec. 20, 2014), at http://justsecurity.org/18604/sony-hack-norms-north-korea (“Secretary Kerry’s emphasison the hack’s interference with free expression suggests that the United States will factor that right into its countermeasures calculations, and how it does so will provide a template for assessing similar attacks and countermeasures in the future.”).

1 S. Select Comm. on Intelligence, 114th Cong., Committee Study of the Central Intelligence Agency S Detention and Interrogation Program, Executive Summary (2014) available at http://www.intelligence.senate.gov/sites/default/files/press/executive-summary_0.pdf [hereinafter Executive Summary].

2 Id.

3 Feinstein Report: UN Expert Calls for Prosecution of CIA Officers and Other US Government Officials, Office of the High Comm’r for Hum. Rts. (Dec. 9, 2014), at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15397&LangID=E [hereinafter UN Expert on Feinstein Report].

4 See, e.g., Statement by the President: Report of the Senate Select Committee on Intelligence, The White House (Dec. 9, 2014), at https://www.whitehouse.gov/the-press-office/2014/12/09/statement-president-report-senate-select-committee-intelligence; see also Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 109 AJIL 175, 191–195 (2015)CrossRefGoogle Scholar.

5 Dianne Feinstein, Foreword to S. Select Comm. on Intelligence, 114th Cong., Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, at 5 (2014), available at http://www.intelligence.senate.gov/sites/default/files/press/foreword.pdf

6 Id. at 4.

7 Id. at 5.

8 S. Select Comm. on Intelligence, 114th Cong., Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, Minority Views of Vice Chairman Chambliss Joined by Senators Burr, Risch, Coats, Rubio, and Coburn, at I (2014), available at http://www.intelligence.senate.gov/sites/default/files/press/minority-views.pdf [hereinafter Minority Views].

9 Id.

10 Id. at II.

11 Feinstein, supra note 5, at 3.

12 Id.

13 S. Select Comm. on Intelligence, 114th Cong., Committee Study of the Central Intelligence Agency’S Detention and Interrogation Program, Findings and Conclusions, at 3 (2014), available at http://www.intelligence.senate.gov/sites/default/files/press/findings-and-conclusions.pdf [hereinafter Findings and Conclusions].

14 Id. at 12.

15 Id.

16 Id.

17 Id. at 9.

18 Id.

19 Id. at 7, 16, 17.

20 Id. at 16.

21 Id. at 16.

22 Id. at 11.

23 Risen, James & Apuzzo, Matt, C.I.A., On Path to Torture, Chose Haste Over Analysis, N.Y. Times, Dec. 15, 2014, at A1Google Scholar.

24 Findings and Conclusions, supra note 13, at 11.

25 Id. at 9–10.

26 Id. at 11.

27 Id. at 4.

28 Id. at 3.

29 Executive Summary, supra note 1, at 45.

30 Findings and Conclusions, supra note 13, at 2.

31 Id. at 2–3.

32 Id. at 2.

33 Id. at 4, 6, 7.

34 Executive Summary, supra note 1, at 462, 463.

35 Id. at 14, 15, 143.

36 Findings and Conclusions, supra note 13, at 8, 14.

37 See Crook, John R., Contemporary Practice of the United States, 102 AJIL 359, 359–61 (2008)Google Scholar.

38 Feinstein, supra note 5, at 4.

39 Minority Views, supra note 8, at XXVIII.

40 Release of Senate Select Committee on Intelligence Report, U.S. Dep’t of State (Dec. 9, 2014), at http://www.state.gov/secretary/remarks/2014/12/234844.htm.

41 Statement by the President Report of the Senate Select Committee on Intelligence, The White House (Dec. 9, 2014), at https://www.whitehouse.gov/the-press-office/2014/12/09/statement-president-report-senate-select-committee-intelligence.

42 Id.

43 Exec. Ord. No. 13,491, 74 C.F.R. 4893 (Jan. 22, 2009).

44 Id. See also Crook, John R., Contemporary Practice of the United States, 103 AJIL 760, 760–63 (2009)Google Scholar.

45 Feinstein, supra note 5, at 4.

46 See, e.g., US: Senate Report Slams CIA Torture, Lies, Human Rights Watch (Dec. 10, 2014), at http://www.hrw.org/news/2014/12/10/us-senate-report-slams-cia-torture-lies.

47 UN Expert on Feinstein Report, supra note 3.

48 Id.

49 Comm. against Torture, Concluding Observations on the Third to Fifth Periodic Reports of the United State of America, U.N. Doc. CAT/C/USA/CO/3-5 (Nov. 28, 2014).

50 Id. at 4–5.

51 Among other criticisms, the Committee faulted the delegation’s inability to describe the investigative techniques used during the investigation, as well as the witnesses interviewed, thereby “casting doubts as to whether this high-profile inquiry was properly conducted.” In addition, the Committee expressed concern over the “absence of criminal prosecutions for the alleged destruction of torture evidence by CIA personnel.” Id. at 5.

52 CIA Report Draws Fire from US Friends and Foes, CBS News (Dec. 11, 2014), at http://www.cbsnews.com/news/cia-torture-report-draws-fire-from-us-friends-and-foes.

53 Id.

1 Authorization for Use of Military Force Against Iraq Resolution 2002, Pub. L. No. 107-243, 116 Stat. 1498.

2 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (codified at 50 U.S.C. §1541 (2006)).

3 See Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice in the United States, 109 AJIL 175, 199–211 (2015)CrossRefGoogle Scholar.

4 See Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice in the United States, 109 AJIL 175, 207–08 (2015)CrossRefGoogle Scholar. See also Steve Preston, General Counsel, Dep’t of Defense, Address at the Annual Meeting of the American Society of International Law: The Legal Framework for the United States’ Use of Military Force Since 9/11 (Apr. 10, 2015).

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

6 Letter from the President—Authorization for the Use of United States Armed Forces in connection with the Islamic State of Iraq and the Levant, The White House (Feb. 11, 2015), at https://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection [hereinafter Letter from the President].

7 Joint Resolution to Authorize the Limited use of the United States Armed Forces against the Islamic State of Iraq and the Levant, 161 Cong. Rec. H-926, 927 (2015), available at http://www.gpo.gov/fdsys/pkg/CREC-2015-02-11/pdf/CREC-2015-02-11-pt1-PgH926-6.pdf#page=1 (“Draft Force Authorization”).

8 Id.

9 Id. § 2(b) (“Consistent with section 8(a)(1) of the War Powers Resolution (50 U.S.C. 1547(a)(1)), Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution (50 U.S.C. 1544(b)).... Nothing in this resolution supersedes any requirement of the War Powers Resolution (50 U.S.C. 1541 et seq.).”); see also id. §4 (requiring the President to “report to Congress at least once every six months on specific actions taken pursuant to this authorization”).

10 Id.

11 Id.

12 Id.§6 (“The Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public Law 107–243; 116 Stat. 1498; 50 U.S.C. 1541 note) is hereby repealed.”).

13 Letter from the President, supra note 6.

14 Support for Authorization for Use of Military Force, U.S. State Dep&t (Feb. 11, 2014), at http://www.state.gov/secretary/remarks/2015/02/237384.htm; see also Statement by Secretary of Defense Chuck Hagel on the Proposed Authorization for Use of Military Force, U.S. Dep’t of Defense (Feb. 11, 2014), at http://www.defense.gov/Releases/Release.aspx?ReleaseID=17144 (“ISIL represents a serious threat to the interests of the United States and its allies. The depths of ISIL’s barbarism are matched only by the scale of its ambition. DoD personnel are working each day—with 60 coalition partners—in our campaign against ISIL. We want Congress’ full, bipartisan support in this fight because the country is stronger when both parties and both branches of government stand and work together.”).

15 Preston, supra note 4.

16 Newhauser, Daniel, Why Obama’s AUMF Faces Trouble on the Hill, National Journal (Feb. 11, 2015)Google Scholar, at http://www.nationaljournal.com/white-house/here-s-why-an-aumf-may-never-pass-the-house-20150211.

17 See, e.g., Kaine Statement on President Obama’s Proposed Authorization for Use of Military Force Against ISIL, Tim Kaine, U.S. Sen. For Virginia (Feb. 11, 2015), at http://www.kaine.senate.gov/press-releases/kaine-statement-on-president-obamas-proposed-authorization-for-use-of-military-force-against-isil (noting concern by Senator Tim Kaine, a Foreign Relations Committee member, about “the breadth and vagueness of the U.S. ground troop language”); U.S. Senate Committee on Foreign Relations, Hearing on Authorization for the Use of Military Force Request, C-SPAN (Mar. 11, 2015), at http://www.c-span.org/video/?324700-1/john-kerry-ashton-carter-general-martin-dempsey-testimony-use-force-isis (Senator Menendez) (observation by the ranking Democrat on the Foreign Relations Committee, that “Democrats are not willing to... give this or any other President an open ended authorization for war”).

18 Jack Goldsmith, The Administration’s Hard-To-Fathom Draf AUMF, Lawfare (Feb. 12, 2015), at http://www.lawfareblog.com/administrations-hard-fathom-draft-aumf (“[T]he President can simply Revert to reliance on the 2001 AUMF as an independent basis of authority for any actions not authorized by the ISIL-specific AUMF.”).

19 Scott Wong, GOP: Obama War Request is Dead, The Hill (Apr. 13, 2015), at http://thehill.com/policy/defense/238619-gop-obama-war-request-is-dead.

20 John T. Bennett, Boehner Drives Another Nail in AUMF’s Coffin, Defense News (May 19, 2015), at http://www.defensenews.com/story/defense/policy-budget/congress/2015/05/19/isis-aumf-boehner-iraq/27579137.

22 John T. Bennett, Kaine Declares AUMF Still Alive in Senate, Defense News (Apr. 15, 2015), at http://www.defensenews.com/story/defense/policy-budget/congress/2015/04/15/aumf-boehner-iraq-isis/25823301 (noting that Senator Kaine said members are “try[ing] to find a formulation of the mission close to what the president proposed that would engender bipartisan support,” while also suggesting that the AUMF was delayed by negotiations over an Iran nuclear bill, as it is ‘hard to do two things so high burn at once”).