This reviews whether there are sufficient methods to detect whether an Executive is or is not properly or improperly using their office, power, or authority to thwart enforcement of Geneva. We distinguish between the President, Executive, and Presidency.
We conclude there are insufficient methods to detect whether an Executive is abusing his authority to thwart enforcement of Geneva.
We conclude that although foreign powers or proxies might attempt a rendition, there are many logistical factors complicating the successful rendition of American legal counsel allegedly connected with war crimes.
The United States President does not have legal authority to, on his own, breach Geneva; nor direct others to thwart enforcement of Geneva.
The orders from the President -- directing American combat or contracting personnel -- to interfere with efforts to enforce Geneva, on the surface, do not appear to be lawful. [Video: Everyone has to follow the law. Who will enforce it?]
It remains an open question whether US personnel or contractors would have information to raise questions about the lawfulness of this Presidential order.
Such a scenario -- that of a President directing others to thwart enforcement of Geneva -- would likely be clouded within a larger nexus; legal counsel would have likely raised the point, "The answer to this question is fact specific."
Most likely a President would ask a larger question to hide a core question: Can the President direct American combat forces to shoot down, destroy, or redirect a foreign military aircraft which is attempting to render American personnel to a foreign location for prosecution under the laws of war?
This scenario would, in theory, have followed a foreign power's decision that they had an interest in taking action; that they were willing to put at risk their personnel to enforce Geneva; that they had a high probability of success; and that the outcome of that attempted rendition -- successful capture, departure, and exit from US airspace without a successful American effort to thwart that rendition -- would go in their favor.
A foreign power is more likely to take retaliatory action against the US only during a military or diplomatic engagement. Further, the foreign power would more likely use a proxy to attempt this retaliation or rendition.
Regardless the method of the foreign power to attempt the rendition, one question is whether a Presidential order to interfere with that rendition -- supposedly an effort to enforce Geneva -- would be a lawful order.
We do not believe that such an order would be lawful; the problem for those receiving this order is that they are likely going to have other information.
If the President's intent -- to thwart enforce Geneva -- is clouded by a "training" exercise, then this would most likely confuse the ability of American military or contracting personnel to thwart the rendition.
In this scenario, rather than giving an order to "thwart enforcement of Geneva," a President would more likely allow others to bring other factors into the nexus to create a deliberately confusion situation, cloud his real intention, and dissuade direct questions of the lawfulness of the foreign power's action.
Even if a foreign power were to attempt a rendition, it would be unclear under the laws of war which steps or attempts to use lesser measures were attempted to enforce Geneva; and what interest they have.
In theory, the US would have veto power at the UN security council, making unlikely that the UN would at the Security Council level authorize an intervention using military means against and into US airspace.
Rather, a more likely scenario, albeit farfetched, would be for the General Assembly to approve an action outside the UN Security Council. However, we have learned that public efforts to support such an action would face likely indirect US economic, diplomatic, and military retaliation.
Part of the question incorrectly assumes that only a foreign power would attempt to enforce Geneva. The unanswered question is whether United States combat forces would attempt -- on their own -- to render a US-connected person, and deliver that person to a foreign power or court. Such a scenario is less likely to be successful as it would require coordination which the President and others would likely be aware before it successfully occurred.
Even if a foreign power -- or its proxy -- were attempting a "lawful rendition", there is the issue of FAA coordination; and gaining approval to conduct refueling operations. This would, in theory, require either off-shore refueling using air tankers, a submarine extraction, or an intermediate stop-over on an aircraft carrier. Again, each of these scenarios would require too much tactical and strategic warning for these options to occur or get resource support without adequate warning for the National Command Authority.
Because of the complexities with conducting a rendition against US-connected personnel, foreign powers are not likely to directly attempt such a scenario. More likely, but still difficult, would be a proxy.
The answer to this question will change depending on whether the attempted rendition occurred in a combat zone, over another country, over a neutral country, within the Continental United States, through a country at war with the United States, or through an allied power; and the nature of the Memorandum of Agreements or Status of Forces Agreements between those powers and the United States or its intermediaries.
The answer to this quesition will also change depending on the attempted preliminary steps or efforts foreign powers or proxies have attempted; and the perceived public support or reaction to that other power or proxy attempting a rendition against a US-connected person.
Conclusion
There is no statute of limitation for war crimes; and civlians have been prosecuted for war crimes. Its an open question how many abuses connected with with American legal counsel advice becomes subject to a foreign prosecution; and what legal, diplomatic, and military options foreign powers exhaust under Geneva before taking military action to include rendition.
We believe American legal counsel, in the above scenario, do face a real risk of being lawfully rendered to a foreign court, jurisdiction, or power for prosecution under the laws of war; and that foreign powers and proxies believe that a Presidential order to thwart that attempted rendition against American legal counsel would not be lafwul.
However, because a rendition of American personnel or civilian legal counsel is unlikely by foreign powers, the United States faces a higher risk of battlefield retaliatory action or reciprocal than direct efforts to render US personnel to enforce Geneva.
There may come a day when military personnel are faced with deciding whether they will or will not follow an order to, what turns out, interfere with Geneva enforcement. Generally, unless that order is obviously illegal, it would likely be a matter of UCMJ for military personnel to defy a Presidential order.
We encourage combatant commanders to review the methods they use to independently screen whether they have exhausted all options to ensure that they remain in compliance with Geneva; and that they, where possible, ensure they are not being used to thwart enforcement of Geneva, even by the President.
Ideally, it would be appropriate for the American public to see leadership, and timely efforts to successfully demonstrate the American government is serious about fully complying with Geneva.
If you desire further discussion, we encourage you to seek an independent legal review with lawyers such as a Judge Advocate General (JAG).
Recommendation
American media, civilian oversight, public and inspector generals are encouraged to review the following assumptions and concerns related to the above scenario:
A. The combatant commander do not have adequate, lawful methods to independently verify whether a Presidential order is or is not a lawful order related to Geneva enforcement; nor independently detect or evaluate whether that Presidential order, plan, or mission is primarily, substantially, or partially one designed to dissuade or thwart enforcement of Geneva by a foreign power against US persons.
B. There is not sufficient liaison between the National Command Authority (NCA) and civilian aircraft controllers assigned to the FAA to ensure that a lawful effort to enforce Geneva is fully supported.
C. Combatant commanders are not adequately staffed with counter-intelligence analysts to evaluate whether a planned military or civilian training exercise is or is not a method by civilian leadership to thwart enforcement of Geneva.
D. The public does not have independent methods to detect whether the US government is putting pressure on allied or foreign powers through diplomatic, military, or other means to dissuade them from attempting to enforce Geneva against US military or civilian personnel.