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July 20, 2020

The Senate Foreign Relations Committee (SFRC) is holding a hearing Tuesday on the nomination of C.J. Mahoney to be the Legal Adviser at the U.S. State Department. Mahoney has already been confirmed by the Senate once, for his current role as Deputy U.S. Trade Representative for Investment, Services, Labor, Environment, Africa, China, and the Western Hemisphere. But the current nomination is for a very different position: the State Legal Adviser is the most senior U.S. lawyer responsible for ensuring the United States upholds its international legal obligations, which is now, more than ever, a vital and challenging role. 

In addition, the Legal Adviser is charged with engaging in legal diplomacy with foreign counterparts, defending the United States in international fora, and providing counsel to the State Department on “all legal issues, domestic and international, arising in the course of the Department’s work,” including “formulating and implementing the foreign policies of the U.S., and promoting the adherence to, and development of, international law and its institutions as a fundamental element of those policies.” The Legal Adviser also manages an office of about 200 attorneys with deep expertise in international and domestic law matters and approximately 100 support staff.

Here are a few questions the SFRC should consider asking Mahoney in his nomination hearing:

Role of the Legal Adviser

  • As one former Legal Adviser has explained, the role you have been nominated for entails not only providing counsel to the State Department, but also serving as “a conscience for the U.S. government with regard to international law.” If confirmed, will you ensure that the United States upholds its international legal obligations and that those obligations are taken into account through all levels of the policy-making process?
  • Are you committed to seeking and relying on the advice of the outstanding career attorneys within the Office of the Legal Adviser? 

Use of Force and Related Issues

  • International law limits on Art. II power: As you know, the Executive Branch has long recognized that at least two constitutional provisions — the Take Care Clause and the Declare War Clause — constrain the scope of the President’s authority to initiate the use of force without prior congressional authorization. The UN Charter is a law that the President must “Take Care” to faithfully execute. Do you commit that you will seek to ensure that the United States upholds its obligations under the UN Charter, including with respect to the use of force? 
  • Scope of the 2001 AUMF: The 2001 Authorization for Use of Military Force (AUMF) authorizes the use of force against those who “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons” for the express purpose of preventing future acts of terrorism by those responsible for the 9/11 attacks. And as you know, Congress holds the power to “declare war” in our Constitution. 
    • Will you commit to coming back to Congress before endorsing an interpretation of the 2001 AUMF that would purport to authorize force against groups beyond those against which force is currently being used pursuant to that congressional authorization?
    • Will you commit to coming back to Congress before relying on the 2001 AUMF as authorization for the use of force in countries beyond those in which the United States is currently using force pursuant to that congressional authorization?
  • Scope of 2002 AUMF: Is it your understanding that the 2002 AUMF is not the sole source of authority for any ongoing US military operations? Do you agree that force authorizations passed by Congress should not be used for purposes other than those intended when Congress provided the President with the authorization? 
    • Do you believe there would be any significant legal ramifications with respect to any ongoing U.S. operations if the 2002 AUMF were to be repealed?
  • War Powers Resolution of 1973: The Executive branch has interpreted the term “hostilities” in the War Powers Resolution exceedingly narrowly, such that it does not notify Congress of uses of force conducted remotely by cyber means, as one example.
    • Will you commit to informing Congress before undertaking any use of force against a nation state, regardless of whether it is undertaken remotely or by cyber or other means?
    • Do you believe the War Powers Resolution’s 60-day clock can be started and stopped with each discrete strike in a series of strikes involving the same actors? If so, isn’t this an end run around the War Powers Resolution’s 60-day termination requirement absent congressional authorization of the hostilities at issue? 
  • Syria: The Trump administration has on two occasions used military force against Syrian targets in an apparent response to the use of chemical weapons by the Assad government. What is the justification under international law for these strikes? Why has the government not shared this justification to date? Do you agree that the United States should use force only when lawful as a matter of both domestic and international law?
  • Iran: Do you agree with the Acting Legal Adviser that neither the 2001 AUMF or 2002 AUMF would provide authority for the use of force against Iran except in the exceptionally narrow circumstance of unit self-defense from attack during otherwise authorized operations under that authority?
    • Acting Legal Adviser Marik String stated with regard to Iran that he would inform Congress before the Executive Branch using force. Will you commit to doing the same?
  • Soleimani strike: The UN recently released a report from Special Rapporteur Agnès Callamard on the use of drones in extrajudicial, summary or arbitrary executions. The report found that the United States violated the UN Charter by killing IRGC head Soleimani with insufficient evidence of ongoing or imminent attack. Are you aware of this report?
    • The report found that “the targeting of General Soleimani, and the deaths of those accompanying him, constitute an arbitrary killing for which, under [International Human Rights Law], the US is responsible. The strike was in violation of Art. 2(4) of the UN Charter with insufficient evidence provided of an ongoing or imminent attack.”  
    • Do you commit to providing the information to Congress on which the Soleimani strike was justified along with your assessment of whether Art. 2(4) was complied with in this instance?
  • Upholding international law: Some of President Trump’s past statements contravene any reasonable interpretation of international law. Will you commit to stopping such actions, should they occur? For instance: 

Transparency, Oversight, and Accountability

  • What is your position on the scope and limits of executive privilege? Do you agree that the president cannot use executive privilege as an excuse to withhold evidence that is “demonstrably relevant in a criminal trial?” 
  • As you know, the Supreme Court recently decided in Trump v. Mazars U.S., LLP that Congress has the power “‘to secure needed information’ in order to legislate.” Are you committed to working cooperatively with Congress as a co-equal branch of government when we seek information to aid in the legislative process?
  • Should the need arise, will you commit to cooperating with a Congressional subpoena? 
  • Recent reporting suggests a whistleblower within the Department was “blocked” from reporting questionable activity regarding Secretary Pompeo to the Office of the Legal Adviser. Will you commit to ensuring that Department employees may raise concerns about questionable conduct with your office and that those concerns are taken seriously? 
  • How would you characterize the relationship between the State Department’s Legal Advisor and the State Department’s Inspector General? 
  • Would it be inappropriate for you to request to stop an investigation by the State Department’s Inspector General? 
  • If you have a conflict of interest, such as previously working on a matter that the Inspector General is investigating, will you recuse yourself? 

Treaty Withdrawal

  • What is your view on whether the President can unilaterally withdraw from Art. II treaties or congressional-executive agreements?
  • Do you believe the President could do so in the face of congressional opposition or even legislative prohibition?

World Health Organization Withdrawal 

  • Pursuant to a 1948 Joint Resolution, the right of U.S. withdrawal from the WHO is conditioned on providing one year of notice and the full satisfaction of financial dues the United States owes to the WHO. Does the United States intend to continue to participate in the WHO until these two conditions are met?
  • What purpose is served by threatening to withdraw from the WHO? What are the consequences for who will exercise leadership within the institution and the ability for the United States to pursue its interests in the governance of global health issues? 

Asylum/Refugees/Migration

  • What are the United States’ obligations under international law when it comes to returning individuals to countries in which they risk being unlawfully killed or tortured? Do those obligations apply to people covered by the administration’s orders and regulations restricting migration into the United States due to coronavirus?
  • With the Refugee Act of 1980, Congress implemented the obligations of the United States as a party to the 1967 Protocol to the 1951 Refugee Convention, and with the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) Congress and the Executive Branch implemented obligations under the Convention Against Torture. Do you support the State Department’s recent response to a congressional inquiry in which the Department suggested that the administration is not bound, as a matter of domestic law, by the obligations of the 1967 Protocol and the Convention Against Torture in the application of its orders and regulations restricting migration due to coronavirus? If so, how is it possible to reconcile that position with these U.S. legal obligations? 
  • The State Department’s response also suggested that non-self-executing treaties do not bind the Executive Branch citing Medellín v. Texas, 552 U.S. 491, 504-06 (2008). Isn’t it true, however, as the 2018 Restatement on Foreign Relations Law states, that the Supreme Court in Medellin “did not resolve that question” of whether non-self-executing treaties bind the Executive even though they cannot be enforced in court? 
  • With respect to the U.S-Mexico Joint Declaration and Supplementary Agreement on migration and refugees: Are either or both if these a binding agreement under international law? Or are either or both non-binding political arrangements? 

Secretary Pompeo’s Commission on Unalienable Rights

  • Sec. Pompeo’s Commission on Unalienable Rights — set up to advise the Secretary on the role of human rights in American foreign policy — commits to protecting human rights based on the United States’ founding principles as well as the principles of the 1948 Universal Declaration of Human Rights. Do you commit to adhering to the United States’ constitutional norms and procedures to protect human rights? Do you commit to adhering to the universal principles of the Universal Declaration of Human Rights? 
  • Do you commit to adhering to the widely-accepted international rules of interpretation that guide the recognition of inalienable human rights? 
  • Do you commit to safeguarding the United States’ international commitments to protect universal human rights? 
  • The Commission released a draft report of its findings last week. Some of the Commission’s findings should be welcomed and could be interpreted as consistent with the U.S. role as a leading, if sometimes imperfect, leader in promoting adherence to human rights norms and the rule of law. The Commission stated, for example, that the United States must be a “vigorous[] champion” of human rights in its foreign policy. However, a number of its findings are highly concerning and would undermine that traditional U.S. role.  
    • Do you agree with the Commission’s finding that positive international law of human rights — such a human rights treaties — should not be considered binding on the United States?
    • Do you agree with the Commission’s finding that the United States may treat some international human rights — specifically economic and social rights — differently than civil and political rights? 
    • Do you agree with the Commission’s finding that it is “desirable” to prioritize some human rights over others? 
    • Do you agree with the Commission’s finding that the United States “should be open but cautious in its willingness to endorse new claims of human rights?” 
  • Are you aware that several prominent human rights organizations have sued Sec. Pompeo and the Department of State with regards to the Commission, claiming that the Commission is unlawful and violates the Federal Advisory Committee Act (FACA)?  

Syria – Universal Jurisdiction

  • Commendably, Secretary Pompeo issued a statement supporting Germany’s efforts to prosecute a Syrian general for alleged war crimes, even though neither the military officer nor his actions have a direct connection to Germany. We assume you would also endorse the legal basis for the German prosecution. What legal options does the United States have to pursue similar actions to ensure accountability for atrocities committed by the Syrian regime?  

Jamal Khashoggi

  • Would you suggest that the Saudi Crown Prince Mohammed bin Salman (MBS) has immunity in a civil suit brought by the family of Jamaal Khashoggi?
  • What actions would you take, in your role as primary defender of the rights of U.S. residents and citizens abroad, to seek accountability for the murder of Khashoggi?

International Criminal Court

  • Does the Executive Order that targets staff of the International Criminal Court also potentially apply criminal penalties to American citizens who give legal advice to the Court — including professors who advise on the protection of children in armed conflict and crimes against humanity in places around the world? At what point would you consider such financial sanctions excessive? 

International Court of Justice  

  • In 2018, the Trump administration announced plans to reevaluate the United States role in the International Court of Justice, the “principal judicial organ” of the United Nations. There are currently three cases filed against the United States in the court: two filed by Iran and one filed by the “State of Palestine.” ICJ jurisdiction in these cases relies on whether member states have voluntarily agreed to its jurisdiction on a treaty-by-treaty basis. 
  • Provided that the United States is party to a relevant treaty consenting to ICJ jurisdiction, do you commit to submitting to the ICJ’s jurisdiction in these cases? 
  • Former National Security Advisor John Bolton rejected the International Court of Justice’s jurisdiction as “politicized and ineffective.” Do you agree with this characterization? 
  • As President Trump has recently suggested, would the United States consider suing China in the ICJ in relation to China’s handling of the COVID-19 pandemic? 

Iran Nuclear Deal

  • Do you agree that the United States can no longer trigger the snapback mechanism for multilateral sanctions under UN Security Council Resolution 2231 given it has unilaterally repudiated the Iran nuclear deal (or JCPOA), declaring many times that it is no longer participating in the arrangement, and the Resolution allows only JCPOA “participants” to do so?

Arms Sales Notifications

  • Do you support the long-standing process for informally notifying Congress of prospective foreign arms sales and would you oppose efforts to end it, as the administration has reportedly entertained doing?
Image: Office of the U.S. Trade Representative

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