THE MERCHANT OF MENACE AND ITS MALCONTENTS:

THE DEFENSE INDUSTRY, ITS REVOLVING DOOR AND AN ADMINISTRATIVE PROCEDURE CLAIM TO HALT WEAPONS SALES AND PUT IN MORE PROTECTIONS FOR CULTURAL PROPERTY

Calvin Coolidge’s famous quote that the “the chief business of the American people is business” continues to ring raw and true — and the brunt of our business is war and the weapons sales that service it. The U.S. is the world’s largest arms dealer. Trump flat out admitted this during his term, purportedly (and unsurprisingly) because he was in a trite tiff with some Generals. Yet even as a broken analog clock is right twice a day, he was right on point. We need to tighten legal controls on arms sales, restrict the revolving door between defense contractors, the military and the Department of Defense and stop the corporate welfare provided to defense contractors. We are providing incentives to sell arms, so how can we purport to be an “arsenal of democracy” that purportedly aims to foster international peace? Our weapons have been used for war crimes. It is U.S. weapons that have been dropped on Yemeni hospitals, schools, weddings, funerals and historic and religious structures. It is U.S. weapons and their servicing that aid the Saudi and Emirati coalition’s blockade of humanitarian aid and commercial goods to Yemen where half the population has been deliberately starved for years. Yemen is just one example. While there are many structural revisions required, this article is focused on utilizing an Administrative Procedure Act claim based on the violation of National Heritage Protection Act to mandate the government undertake a process to review the impact of its decision to allow a license for weapons sales on the cultural properties of the impacted state and provide a reasoned decision. While procedural in nature, procedure is substantive. More importantly, the usual doctrines and procedures that prevent claims to prohibit or review weapons sales are not applicable: there is no sovereign immunity issue, there is no extra-territoriality issue, there is no political question issue, there is no administrative exhaustion requirement, nor is there a shortened statute of limitations. Standing is also not an issue, because a nonprofit with a mission to protect heritage properties should suffice. There has only been one appellate case on the issue concerning the impact of moving the U.S. military base on the resident dugong population in Okinawa. In that matter, the 9th Circuit mandated the government undertake an adverse impact process in consultation with outside parties.

The United States has a particular affinity for justifying its belligerence as a form of benevolent bellicosity. It is of course far better to state you are going to bomb people and invade their country for their betterment than to simply acknowledge you are going to liberate them from their oil. The U.S. became an empire when it seized on the fire upon the Maine in Havana Harbour as an attack by Spain, thus providing justification to snap up the etiolated empire’s territories. The U.S. was perfectly at peace trading with both Britain and Germany during the First World War, even after the sinking of the commercial (but munitions carrying) Lusitania by U-boats, which though horrid and causing the loss of 1,197 civilian lives was used as pretext to prop up public opinion, with the U.S. only entering the war nearly two years later when the British naval blockade prevented the U.S. from trading — which it had done happily- with both sides of the conflict. The U.S. escalated its efforts in Vietnam by incorrectly claiming the North Vietnamese attacked the Maddox and justified its efforts under a “domino theory” against Communist oppression, which oppression would have been the electoral defeat of dictator Diem by Uncle Ho who secured Vietnamese independence from France (which national election was guaranteed by the Geneva Conference and were to be held in July 1956). This war against “Communist aggression” which included the carpet bombing of Cambodia and Laos, destabilized the region and aided the installation of the horrific regime of the Khmer Rouge. In 1999, the U.S. was at the forefront of NATO’s “humanitarian” war against then Yugoslavia (with these purportedly altruistic nations largely absent from the genocide occurring in Timor Leste that same year by Indonesian paramilitary forces), which involved the use of depleted uranium projectiles and cluster bombs, the bombing of a civilian bus, the bombing of a civilian passenger train, the bombing of hospitals (in Niš and Belgrade), the bombing of Surdilica sanatorium, the bombing of the Chinese embassy in Belgrade (explained as the result of a catastrophic cartographic error) and the bombing of the Belgrade Radio and TV station on April 23, 1999- yet, there has been no accountability for these war crimes. The Bush administration waged war against Afghanistan purportedly for harboring terrorists (whom the CIA had imprudently trained to fight the Soviets under Operation Cyclone) of the stygian September 11 2001 attacks but failed to mention it had been courting the Taliban for Unocal’s pipeline which the Taliban later failed to cooperate over. Chile has its stygian September 11 1973 when democratically elected Salvador Allende was assassinated in a coup d’état by Pinochet who instituted his reign of terror, supported by the United States- all under the banner of aiding democracy. These are just a smattering of the many times the US has utilized pretext. Of course, the U.S. is hardly unique in this regard. Even ancient Rome was well versed in exploiting loopholes in its treaties, the second and third Punic Wars for instance, precipitated by carefully tailored uprisings that Carthage quashed- as it was intended by Rome, which Rome then used as justification that Carthage had breached their treaty by attacking its allies. Yet the U.S. is more militant in masking its realpolitik and resonating its supposed magnanimity. In its recent counter-terrorism efforts in Somalia, for instance, the U.S. purportedly made an effort to be accountable for the civilian causalities of its drones. It did so by providing a web portal, initially solely in English, even though computers and smartphones are not readily available and internet connection is almost non-existent. It is a strikingly superficial effort and one that is either spectacularly ignorant or supremely cynical. Additionally, and unlike Rome, part and parcel of American foreign policy are arms sales — and they are so inextricably linked that one may wonder whether foreign policy has become subservient to the interests of increased sales.

Eisenhower’s prescient farewell address on January 17 1961, cannot be understated. He warned against the “acquisition of unwarranted influence…by the military-industrial complex” and the “disastrous rise of misplaced power”. Eisenhower was pretty on point. One thing he may have missed is the carceral economy, which the defense industry directly benefits from. Federal Prison Industries or UNICOR, which runs 83 factories throughout the United States; it’s principal customer, with 52.5% of sales is the Department of Defense, for which it makes military equipment (https://www.bop.gov/inmates/custody_and_care/unicor_about.jsp).

The U.S. is the world’s largest arms exporter. From 2016–2020 the U.S. accounted for 37% of arms sales, the remainder of the P5 collectively accounted for 36.7% of sales. It’s little wonder that there is no major international impetus to halt the menace of this madness when the largest arms dealers in the world are the permanent members of the Security Council. The U.S. has steadily increased its market share. Obama (who is a recipient of the Nobel Peace Prize- but then again so is Henry Kissinger) brokered more deals for arms than any other president since World War II at $278 billion (Bush only brokered $128.6 billion), $115 billion going to our biggest buyer, Saudi Arabia. Trump did not want to be outdone by Obama. He loosened export controls on firearms (which Biden has thus far left in place), rushed through — perhaps illegally-arms sales to Saudi Arabia and issued a policy directive to diplomats that in essence directed them to push U.S. arms.

The U.S. has sold arms numerous times to both sides of a conflict, aiding the escalation and prolongment of a conflict. For instance, the U.S. has provided weapons to the Kurds as well as to Turkey. The U.S. provided weapons to both Iraq and Iran during their war. The sales to Iran were against its own imposed embargo on weapons sales to Iran, Operation Staunch, in order to fund the contras (hence popularly known as the “Iran Contra Scandal”) against the socialist Sandinistas in Nicaragua who opposed U.S. intervention in their domestic affairs (with the U.S. intervening by training and funding their opponents). Somewhat paradoxically, U.S. invasions of countries have led to these countries becoming solid customers of this Merchant of Menace. The U.S. sold military equipment to the government of Afghanistan and Iraq in conjunction with training their police and military forces via the Pentagon’s FMS program.

It’s business as usual with the Biden administration. The U.S. will again welcome all and sundry, including the worst human rights abusers, with open arms (for the right price, of course). Biden is proceeding with a $23 billion sale of weapons, including fighter jets, to the U.A.E., even though the U.A.E., along with Saudi Arabia, has brazenly committed war crimes in Yemen. Part of the problem is the revolving door. Generals and defense department civilian personnel move to roles in private industry and revolve back to the government. The right incentives are just not there. How can we expect impartial officials if they are regulating a prospective future employer — who will pay far better than the government- or regulating their old colleagues? Obama’s Deputy Defense Secretary was former Raytheon lobbyist William Lynn. Trump’s Defense Secretary was former Raytheon lobbyist, Mark Esper. Biden’s Defense Secretary is former General Lloyd Austin III, who was formerly on Raytheon’s board. Raytheon Technologies (which recently merged with United Technologies Corp.), along with Lockheed Martin, Boeing, Northrop Grumman and General Dynamics (the Big Five), is one of the largest defense contractors in the U.S. In the fiscal year 2019, Raytheon received $15, 613, 250, 767 from the Department of Defense and hired 20 former senior officials from the Department of Defense (https://www.opensecrets.org/news/reports/capitalizing-on-conflict; https://www.pogo.org/report/2018/11/brass-parachutes/). It’s no surprise that Raytheon brazenly submitted its salary for its inhouse lobbyist for $220k as a cost associated with its engineering work on the Patriot missile defense system (this cost was determined to be expressly unallowable by the Federal Circuit in 2019). Raytheon is not unique in this respect. 73% of registered defense lobbyists in 2020 previously worked for the federal government. The U.S. defense sector spent $2.5 billion on lobbying the past two decades and the Big Five collectively spent $60 million on lobbying the federal government in 2020 alone.

The Foreign Assistance Act (FAA) is a tepid attempt to limit executive power, its text lacking teeth. The FAA regulates security assistance, which includes the sale of weapons, to foreign governments and requires the executive to report on its intended sales and assistance consistent with the FAA’s guidelines and established temporal periods. The FAA prohibits security assistance and weapons sales to any country that “engages in a consistent pattern of gross violations of… human rights”. 22 U.S.C. §2304(a)(2). The FAA also prohibits security assistance to states that prohibit or restrict the delivery of U.S. humanitarian assistance. 22 U.S.C. § 2378–1(a) In practice, the U.S. provides security assistance to flagrant human rights violators. For instance, Saudi Arabia, where women are under the legal guardianship of men for their entire lives, where amputations and public beheadings are prominent and which has committed war crimes in Yemen, recklessly or intentionally hitting residences, schools, hospitals, mosques and World Heritage sites. Saudi Arabia has also imposed a blockade of Yemen, including of humanitarian assistance, which has directly created one of the world’s worst famines and prevented the entry of medical equipment. However, the FAA provides a loophole for the executive to determine that the security assistance, which may be the sale of weapons, is warranted by the national security interests of the United States. 22 U.S.C. §2304(c)(1), § 2378–1(b). Trump utilized this when he determined there was a national security emergency to aid Saudi Arabia because of a supposed threat from Iran.

The Arms Export Control Act (AECA) also lacks teeth. The intent of the AECA is to provide Congressional review, ensure that sales are subject to the FAA and to ensure end-use monitoring; but as with the FAA there is a limited possibility to prohibit an arms sale. The AECA provides for Congressional notice with shorter notice periods for allies, including Australia, Japan, Israel and NATO countries. The President may waive these notifications by notifying Congress that an “emergency exists” requiring the weapons sale in the national security interest of the United States. The President may also waive the FAA and AECA provisions for sales at or under $750 million each fiscal year, with $500 million limited to the sale to any one country, with an exception for a larger sale for a country that is a victim of active aggression.

The exemptions and expedited review periods for some countries impede proper Congressional review. The latter prevents an effective debate and the gaining of sufficient votes in both houses in order to prohibit a sale with a joint resolution. However, even if Congress achieved a joint resolution, this prohibition is in any case subject to a Presidential veto. In order to override a Presidential veto, the legislature requires a two-thirds majority in each house. U.S. Constitution, Article I, Section 7, Clause 2. This is notoriously difficult to do. Congress has enough trouble even obtaining enough votes for a joint resolution, which have rarely occurred, and which only require a simple majority in both houses. In the history of Congress, there have been 2584 Presidential vetoes (including pocket vetoes) and only 112 instances in which Congress was able to secure enough votes to override it (history.house.gov/Institution/Presidential-Vetoes/Presidential-Vetoes/).

However, there is another legal avenue that has not yet been tested in the courts respecting arms sales –violation of the National Historic Preservation Act of 1966, as amended (NHPA). In essence, the claim would prevent the granting of a license for arm sales, if the State Department failed to undertake a process in which it investigated and concluded the effect of granting such license on affected foreign cultural properties and would mandate that the State Department undergo this process before granting such license.

There is no private right of action under the NHPA, however, as with other procedural statutes, a plaintiff can seek to enforce the NHPA’s procedural requirements under the Administrative Procedures Act (APA). 5 U.S.C. § 702; see San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1097–98 (9th Cir. 2005); Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir. 1988) (with respect to its domestic equivalent § 106), Mattis, Id. The APA is a statute that governs how federal agencies may promulgate new rules, amend or repeal existing rules and how they may approve licenses and permits in addition to providing judicial review of agency decisions. 5 U.S.C. §551 et. seq. (1946). The APA “sets forth procedures by which federal agencies are accountable to the public and their actions subject to review by the courts.” Franklin v. Massachusetts, 505 U. S. 788, 796 (1992).

The United States cannot be sued unless it has waived its sovereign immunity, which waiver the courts strictly construe. FDIC v. Meyer, 510 U.S. 471, 475 (1994); Lane v. Peña, 518 U.S. 187, 192 (1996). The APA meets this strict standard because it unequivocally and expressly waives sovereign immunity for actions seeking judicial review other than for money damages. 5 U.S.C. § 702. The NHPA applies to government action over heritage properties and “is a procedural statute requiring government agencies to “‘stop, look, and listen’ before proceeding with agency action.” Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of the Interior, 608 F.3d 592, 610 (9th Cir. 2010). It is a claim allowing declaratory and injunctive relief and judicial review — not a claim for money damages and thus not precluded by sovereign immunity.

There is a presumption against extra-territorial application of any statute and for it to be rebutted, there must be a clear and affirmative indication of extra-territorial application in the relevant statute. Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 255 (2010). The durability of this doctrine is clear from the court’s recent (and regrettable) decision in Nestlé, in which the court was split on the core issues except strict adherence to the presumption of extra-territoriality, which achieved an 8–1 majority. Nestlé v. John Doe 593 U. S. ____ (2021) at p 5. Importantly, the relevant section of the NHPA, § 402, expressly applies extra-territorially and thus it meets this strict standard. Ctr. for Biological Diversity v. Mattis, 868 F.3d at 816 (9th Circ. 2017).

§ 402 expressly speaks to properties outside of the United States and was an amendment to the NHPA in 1980 for the purpose of complying with our obligations under the U.N. Convention Concerning the Protection of World Cultural and Natural Heritage. Id. § 402 requires that prior to the approval of any undertaking outside the United States that may directly and adversely affect a property that is on the World Heritage List or on the applicable country’s equivalent of the National Register, the head of a federal agency having direct or indirect jurisdiction over the undertaking shall take into account the effect of the undertaking on the property for purposes of avoiding or mitigating any adverse effect. 54 U.S.C. § 307101(e). The federal agency at issue must investigate the impact its undertaking would have and importantly consult with outside affected parties and carefully consider and weigh the information produced by such investigation. Id. Thus, it is dispositive that § 402 applies extra-territorially.

“Undertaking” is defined as a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a federal agency, including those carried out by or on behalf of a federal agency; those carried out with Federal financial assistance; and those requiring a federal permit, license or approval. 36 CFR § 800.16 (y). The State Department must grant a license for each weapons sale. Hence, this grant of a license is covered by the dictates of § 402.

§ 402 tracks its domestic counterpart, § 106. While there is numerous case authority on §106, there is only one matter that has been litigated under § 402. The Center for Biological Diversity et. al. v. Mattis, 868 F.3d 803 (9th Cir. 2017) concerned the impact on the resident dugong population of the construction and operation of the Futenma Replacement Facility for a new Marine Corp air base in Okinawa. The dugong population is endangered and sacred to Okinawan culture and is protected as “cultural property” under Japan’s equivalent of the National Register. The Center for Biological Diversity (CBD) filed an APA claim based on violation of § 402 of the NHPA alleging the government failed to follow procedure and take into account the impact of the construction of the new base on the resident dugong population. The government, amongst other claims, argued that the political question doctrine and lack of standing barred the claim. The 9th Circuit found in favor of the plaintiffs on both counts.

A “plaintiff must have (1) suffered an injury in fact (2) that is fairly traceable to the challenged conduct of the defendant and (3) that is likely to be redressed by a favorable decision”. Mattis, supra, 816 quoting Spokeo, Inc. v. Robins , 136 S. Ct. 1540, 1547 (2016) as revised (May 24, 2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)); Mattis at 816. The injury in fact must be a “concrete interest” and may reflect “aesthetic, conservational, and recreational” values. Sierra Club v. Morton, 405 U.S. 727, 738 (1972). It is not necessary to allege economic harm. Id. The 9th Circuit held CBD satisfied the injury element of standing because it had a concrete aesthetic interest in preserving the dugong population. 868 F.3d at 817. Importantly, the 9th Circuit held that causation and redressability requirements of standing “are relaxed” for procedural injuries. Id. There is “clear” causation to ask the government to follow the procedure it is bound to follow, that is to consider and assess the impact of the undertaking of the relevant cultural property. Id. Further, “[p]laintiffs alleging procedural injury can often establish redress[a]bility with little difficulty, because they need to show only that the relief requested — that the agency follow the correct procedures — may influence the agency’s ultimate decision of whether to take or refrain from taking a certain action.” Salmon Spawning & Recovery All. v. Gutierrez, 545 F.3d 1220, 1226–27 (9th Cir. 2008). The 9th Circuit also found that there was redressability because a declaratory judgement that the government did not follow the legal process allows for the redressability of a mandatory injunction for the government to follow the legal process of review, consultation and assessment of the impact of its undertaking on the subject cultural property. 868 F.3d at 820–21. This in turn may result in the government modifying the construction to mitigate adverse impacts and benefit CBD. Id. Importantly, “[T]he mere existence of multiple causes of an injury does not defeat redressability, particularly for a procedural injury.” WildEarth Guardians v. U.S. Dep’t of Agric. , 795 F.3d 1148, 1157 (9th Cir. 2015). “So long as a defendant is at least partially causing the alleged injury, a plaintiff may sue that defendant, even if the defendant is just one of multiple causes of the plaintiff’s injury.” Id. Nat’l Family Farm Coal. v. U.S. Envtl. Prot. Agency, 966 F.3d 893, 910 (9th Cir. 2020).

The potential plaintiff could be a non-profit dedicated to the preservation of world cultural heritage and/or preventing war crimes. It’s important that the risk to cultural heritage from the granting of the license to sell weapons need not be the only cause of injury so that the government cannot defeat the petition by arguing that with or without the weapons’ sale in question, the warring parties may injure cultural property (for instance, by buying weapons from other sellers or utilizing the weapons they already have). All one would have to show was that the government’s consultation and assessment process may lead to the government refusing the sale or mitigating its consequences- for instance, by putting stricter end-use measures to ensure the weapons are not utilized for the destruction of cultural heritage. Standing should not be a bar to the claim.

The 9th Circuit also found that the political question doctrine was not implicated in the matter. This is important because claims that touch foreign policy and/or national security and defense are usually precluded by application of this doctrine which renders the matter non-justiciable.

The political question doctrine- a doctrine that demands a book to explain its intricacies- may crudely be construed as a judicial doctrine stemming from the separation of powers by which the judiciary denies review of cases challenging executive discretion as opposed to executive authority. This delineation is clear from the earliest clear authority on the issue, in which the Supreme Court held that “[q]uestions in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court”. Marbury et. al. v. Madison 5 U.S. 137 (1803). This was further cemented by the main authority on the issue, Baker v. Carr which held that “where the Constitution assigns a particular function wholly and indivisibly to another department, the federal judiciary does not intervene” Baker v. Carr, 396 U.S. 186, 246 (1962). Baker held that a political question only bars judicial review if it is “inextricable” from the decision. Id. at 217. Baker also held that not all foreign policy questions are within the sole purview of the executive. Id. at 211. Courts clearly have “authority to construe treaties and executive agreements”. Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986). Courts also clearly have authority to interpret statutes and Congressional intent: after all “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, at 177. Unfortunately — albeit that is a subject for another article- some courts have misunderstood and misapplied the doctrine in too great deference to the executive, in effect allowing Article II mission creep into Article I. Clearly, the judiciary has authority-and has the only authority- under Article III to review the delineation of the separation of power through constitutional interpretation. It follows that where there is a statute and a matter of statutory interpretation, a political question should not arise for that would enervate, even eviscerate, the judiciary and unconstitutionally empower the executive. The courts not only have the authority but are charged with the duty to ensure the equilibrium between the separate branches of government under our Montesquieu system. The courts cannot “shirk this responsibility merely because [their] decision may have significant political overtones”. Japan Whaling Ass’n at 230. The political question doctrine bars “political questions” not “political cases”. Baker, at 211.

It should be pointed that while Baker outlined six formulations which if inextricable from the matter would dismiss a case as non-justiciable by reason of a political question, subsequent authority has rendered only the first two prohibitive and relegated the latter four as merely prudential. Zivotofsky v. Clinton, 566 U.S. 189 (2012); Nixon v. United States, 506 U.S. 224, 228 (1993); Al-Tamimi v. Adelson 916 F.3d 1, 10 (D.C. Cir. 2019). The six Baker factors are: “[A] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question” Baker at 217. There is no hard and fast rule however — each matter must be decided on a case-by -case basis.

In Mattis, the 9th Circuit held that the political question was not implicated even though the issue concerned the movement of a military base. Additionally, the 9th Circuit held that ordering the government to comply with the relevant procedure of the NHPA was not challenging the wisdom of government defense or foreign policy but was merely an exercise of statutory interpretation and application which is the crux of the judicial function — “to apply the standards of the APA to the process employed by the [Government], not pass judgment on the wisdom of the Executive’s ultimate foreign policy or military decisions.” Id. at 823. The 9th Circuit reasoned that “a court analyzing the Government’s compliance with NHPA § 402 also has the aid of a clear legislative purpose and treaty framework to aid in the effort to craft appropriate standards. In this situation, “courts are capable of granting relief in a reasoned fashion” to plaintiffs. Id. at 824; Alperin, 410 F.3d at 553. The court further reasoned that as this was essentially a matter of statutory interpretation, the court would not be making any policy determination, thus finding the third factor to not be present. Id. at 825. With respect to the fourth factor, the court held that allowing the matter to proceed was the most respectful “because to abstain from giving effect to a federal statute is less respectful to Congress than reviewing the executive’s compliance”. Ibid. The court also reasoned that there would be no contradictory multifarious pronouncements because the “accuracy of the Marine Corp Findings and the adequacy of the process under the NHPA Section 402 are separate questions”. Ibid. Importantly, the court also held that “[e]nforcing [the] NHPA….does not intrude on foreign policy judgment, and it would be a “rare case” where prudential considerations of this kind might bar judicial resolution”. Ibid, quoting Zivotofsky , 566 U.S. at 207, 132 S.Ct. 1421 (Sotomayor, J., concurring).

While the government may argue that the decision to move a military base and the granting of a weapons license may be qualitatively different, the analysis should not change. The court will not be making any policy determinations, but merely interpreting statute and giving effect to Congressional intent. By doing so, the court will be upholding and fortifying rather than dismantling the separation of powers and encroaching on another branch. As the redress is procedural and merely requires the government to review, consult and assess and not prohibit the sale, the government cannot viably argue national security compels the finding of a political question. After all, if the issue were one of national security, it is arguable that the government would not be making a mere sale but would be actively involved in the particular conflict. Further, it must not be forgotten that the procedural process enacted by the statute is to give effect to our international obligations. These obligations are also compounded by the fact that international law recognizes the destruction of cultural heritage as a war crime. The government can thus hardly argue it would be embarrassed by the court and its foreign policy undermined by a decision to follow a domestic law that purports to effectuate our international obligations under both the World Heritage Convention and international humanitarian law.

Importantly, an APA claim based on the violation of the NHPA does not provide additional procedural hurdles. The NHPA does not have an express statute of limitations. Nor does the APA. However, 28 U.S.C. § 2401(a) states that “every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” Additionally, a number of cases have held that an APA claim is subject to a six-year statute of limitations. Turtle Island Restoration Network v. U.S. Dept. of Commerce, 438 F.3d 937, 942–43 (9th Cir. 2006); Polanco v. U.S. Drug Enforcement Administration, 158 F.3d 647, 656 (2d Cir. 1998). Furthermore, while APA claims generally require administrative exhaustion there is no such requirement under the NHPA. 5 U.S.C. § 704. Thus, an aggrieved person may bring suit without pursuing any prior administrative remedy. Yankton Sioux Tribe v. U.S. Army Corps of Eng’rs, 194 F. Supp. 2d 977, 992 (D.S.D. 2002); Darby v. Cisneros, 509 U.S. 137, 146–47 (1993).

The 9th Circuit ordered that the government undertake the process to comply with §402 and held the case in abeyance until such time as the government completed its process and filed a substantiated notice of completion. The CBD filed a first supplemental complaint alleging that the government violated the requirements of §402, including by failing to consult CBD and not providing a period of public notice and comment and made an arbitrary and capricious decision that the dugong population would not be adversely affected, violating §706 of the APA. Ctr. for Biological Diversity v. Esper, 958 F.3d 895 (9th Cir. 2020).

The operative directive for the government’s process is that it must “take into account the effect of the undertaking on the property for purposes of avoiding or mitigating any adverse effect.” 54 U.S.C. § 307101(e). This language is identical to its domestic counterpart, §106. However, the court noted that unlike its domestic counterpart, §402 lacks “an express delegation of authority by Congress to a federal agency to promulgate implementing regulations”. Esper, 958 F.3d 895, 905. Thus, the court rejected CBD’s argument that the implementing regulations under §106, which include inter alia, public notice and comment, implicitly applied to §402. However, the court accepted that requiring the federal agency at issue to consult and cooperate with foreign nations, private organizations and individuals under §402 was “consistent with [its] purpose and Congressional intent”. Esper, 906; 54 U.S.C. § 300101(2). Despite this, the court nevertheless disappointingly decided that because of the absence of implementing regulations the federal agency at issue would have wide latitude to decide the scope and substance of any process and that all was required of it was an amorphous and nebulous “reasonable consultation with outside entities”. Esper, 906. The court thus left it open to the agency to decide the “nature” of the consultation and the identification of which “outside parties” to consult. Esper, 906–907. It is likely that the court may even circumscribe to the outer limits of latitude the discretion provided to the government with respect to the impact on heritage properties from end users of US weapons. However, this not to say that there is never judicial review of the process or of the decision reached from it. The government is still required to reasonably consult with outside entities on the potential adverse effects of the subject property and mitigating effects thereof, so at a bare minimum, it must go through some process with some outside parties. One can thus argue that a process was such a blitz or a bubble that there was essentially no consultation at all or that the parties chosen by the government, perhaps because they are overtly partisan, are not effectively outside parties at all. Indeed, while the court provided latitude to the government, it nevertheless took pains to detail the volume of evidence analyzed and the credentials of outside experts that the government engaged, including, importantly, consultation with the Japanese government in support of finding that the government’s process was reasonable. Of course, this analysis is something that will have to be argued on a case-by-case basis and indubitably the government will argue that what is warranted for the construction of a military base differs from a process respecting the sale of weapons. Nevertheless, the government cannot simply gloss over its duty.

Not only the process, but the decision can be challenged as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This is unfortunately a narrow standard that is deferential to the agency so that the court cannot substitute its own reasoning for that of the agency’s, as along as the agency’s decision was reasonable. U.S. Postal Service v. Gregory 534 U.S. 1, 6–7 (2001). A decision is not reasonable if the agency did not consider relevant factors or considered irrelevant factors and/or if a review of the evidence compels a different conclusion than the reasoning reached by the agency. The Lands Council v, McNair 537 F.3d 981, 987 (9th Cir. 2008) (en banc). Importantly, the appellate court reviews the entire administrative record, not merely the evidence reviewed and relied upon by the agency. De la Fuente II v. FDIC, 332 F.3d 1208, 1220 (9th Cir. 2003). Additionally, the court may only uphold an agency decision if it’s supported by the agency’s reasoning in making the particular decision, so that even a reasonable decision will not be upheld if the agency’s reasoning runs contrary to the evidence before it or it failed to consider relevant factors. California Energy Commission v. Department of Energy 585 F.3d 1143, 1150 (9th Cir. 2009). The agency’s decision must be supported by “substantial evidence” which is a term of art that unfortunately does not correlate with its plain English meaning but rather means more than a scintilla of evidence. Richardson v. Perales 402 U.S. 389, 410 (1971). All that is necessary is a rational connection between the record and agency’s reasoning. River Runners for Wilderness v. Martin, 593, F.3d. 1064, 1070 (9th Cir. 2010). There is no categorial rule as to when the threshold is achieved and it is decided on a case-by-case basis.

It is thus not a difficult threshold to achieve. Indeed, the court in this instance decided there was substantial evidence to support the Department of Defense’s decision that there was no adverse effect on the dugong despite criticism by the Department’s own researchers that there was a patent lack of population data, because the court did not consider population data as an essential requirement of the agency’s assessment of adverse impact. Esper, at 911. The court was satisfied with the agency’s decision that robust population data of the dugongs was unnecessary because it was satisfied as to the agency’s findings that the dugong was sporadic in the area of the base. Id. Yet the record also showed that the dugong population heavily relied on seagrasses 2–3 miles from the new base. Id. It is arguable that the decision lacked substantial evidence because on finding that the dugong heavily relied on seagrasses a mere 2–3 miles from the base but failing to consider the impact of the construction and operation of the base on the nearby seagrasses is clear error and subject to reversal. The decision was however not appealed. Challenging the Department of Defense’s decision under §402 is particularly difficult because of the absence of express statutory requirements which would have otherwise opened the door to challenge a decision for failing to consider required factors or considering outside irrelevant factors.

While a topic that deserves an article, nay- a book, in its own right, it must be mentioned that judicial review is worrisomely deferential to the executive, particularly because such a standard runs counter to the spirit and intent of the APA. The APA was enacted in 1946 to provide accountability, transparency, rationality and consistency in agency decision-making and ensure that agencies did not mission creep and disturb the balance of power between the three branches of government. The New Deal era had ushered in vital social programs which were administered by inflated agencies wielding power subject to the constitution but not any laws respecting their procedure or substantive decision-making. President Roosevelt established special committees to review agency accountability and the comittees’ conclusions in 1937 excoriated the agencies’ “irresponsible” and “uncoordinated” powers and warned that they were becoming a “fourth branch” of government. The APA is thus vital to the separation of powers which is instrumental to our democracy. It is also important to be mindful of the fact that the main subjects of agency decision-making are the most vulnerable population sectors in our society — people with disabilities, veterans, immigrants, people on public assistance. The APA is thus a means to prevent against agency impunity while providing the most vulnerable with some agency. The deferential doctrines of judicial review run counter to this and should be re-examined (for a more extended look at the Congressional intent and history behind the APA and its purpose as a check on the balance of power, see the brilliantly written amicus brief by Lawyers for Civil Rights et al in Department of Commerce et al v. New York et al 588 US __ (2019) http://lawyersforcivilrights.org/our-impact/immigrant-rights/keep-the-citizenship-question-off-the-census/ ).

Justice Gorsuch has long espoused criticism of Chevron deference, respecting an agency’s statutory interpretation, in which the court must defer to an agency’s construction if the statute is found ambiguous and the agency’s construction is reasonable. Chevron U.S.A. Inc. v. National Defense Resources Council, Inc. 467 U.S. 837, 843 (1984). In a recent decision, Justice Gorsuch penned a damning dissent, joined by Justice Ginsburg and Justice Sotomayer, concurring in part in a separate dissent, concerning the majority’s decision that found substantial evidence supported an administrative decision based on unfounded and unsupported expert evidence (which the majority did by reframing the question). Biestek v. Berryhill 587 US __ (2019). The case concerned the denial of disability payments based on an expert’s conclusions of available jobs based on her own market assessment which she refused to provide. Justice Gorsuch correctly analyzed that such unsupported evidence is conclusory in nature and cannot support a finding of substantial evidence. It is unfortunate this was the dissenting judgement. However, numerous judges on the current bench, including Justice Kavanaugh and even, shockingly, Justice Thomas, ever on the wrong side, have commented that the judiciary should curtail the executive, particularly when the analysis of the balance of power is between the legislative and executive bodies (there’s a reason the authority of Congress is detailed under Article I). Justice Thomas, though the author of the majority judgement in National Cable & Telecommunications Association v. Brand X Internet Services 545 US 967 (2005) which applied administrative deference and effectively allowed Ajit Pai to kill net neutrality (with California quickly legislating net neutrality into state law under the California Internet Consumer Protection and Net Neutrality Act of 2018 with Biden dropping the litigation against it), has over the past few years criticized the deferential doctrine and lamented his prior decisions, including Brand X as providing for the abyss of “administrative absolutism” (see his dissent in Baldwin et ux v. United States 589 US ___ (2020)). Perhaps the time is ripe for the court to return to its instrumental role as checking the balance of power, ensuring the executive sticks to its constitutional constraints — that of merely executing. Otherwise, if we continue with this unwarranted deference, we will have the unelected executive effectively making laws, a lack of consistency in decision-making with each new administration utilizing its decisions for its own political restructuring and without challenge, see this fourth branch act out Lord Acton’s aphorism.

In the interim, we should nevertheless keep testing the doctrine. Attorneys can and should be social advocates, taking cases not merely due to their viability and probability of winning but in making a social impact. Of course, that is not to encourage vexatious litigation, but any thinly viable case that passes muster should be taken to court with two aims in mind — the first, is winning in court and overturning pernicious precedent, the second, is to publicize the issue and spur public debate and legislative change. In a brilliant article, “Winning Through Losing ” Professor Douglas NeJaime analyzed the productive social function of litigation loss, by which defeat in the courtroom can spur social mobilization outside of it (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1592667). NeJaime not only looks at the productive effects of losing but shows that judicial defeat may have — admittedly counterintuitively- social impact that is uniquely tied to litigation loss by exposing a bad law and the limits of judicial challenge. Losing is thus, not to be feared. However, an APA claim for violations of the NHPA is likely to succeed- at least at the first stage with respect to the process of assessing the impact of approving weapons’ sales without the assessment of adverse impact on affected cultural properties and consulting with outside parties. The claim is largely procedural. This is to some extent its weakness, but as is the paradoxical nature of our existence, our weaknesses our also our strengths, depending on the circumstances. As any attorney would tell you, procedure is substantive. The government will at the least will be forced to stall a weapons sale and have to publicly reckon with the end-use impact of its weapons, which will hopefully invigorate public debate and lead to statutory change so that the U.S. is no longer an arms peddler complicit in war crimes.

In July 2019, Trump vetoed bipartisan Congressional efforts to stop weapons’ sales to Saudi Arabia on account of the Saudi and Emirati coalition’s war crimes in Yemen. These war crimes included the reckless bombing of civilians, including hospitals, schools, religious sites, weddings and funerals. The coalition also bombed Yemeni national cultural sites, some of which were World Heritage Sites, including in Sa’ana (see Mwatana’s report https://mwatana.org/en/yemens-cultural-property/

; you can listen to Executive Director Radhya Al-Mutawakel on Gravity in the episode “A People Fractured: Shells, Strikes and Starvation in Yemen”, thegravity.fm). These sites are not only of historic and cultural importance to Yemen, but to the entire world community who were robbed by the warring parties, including in particular the Saudi and Emirati coalition, of our world heritage. The destruction of cultural sites is also a war crime. Trump’s veto appeared to have trumped any other legal effort to stop this stygian sale- but nobody brought an APA case for violation of the NHPA. This would have likely been successful. Saudi Arabia was actively engaged in the war in Yemen, had already committed war crimes with the destruction of cultural heritage and the license should have been withheld until the government undertook an adverse impact assessment on Yemeni cultural properties with outside parties. The APA claim does not prevent the undertaking — but it does require the government to assess and avoid or at least mitigate adverse impact. The stalling of the sale would in itself be a victory and would have allowed more time to actively publicize the horror of the coalition’s attacks and its violation of international law to engender sufficient opprobrium to have the government back away from the deal.

What has been happening in Yemen since 2015 and is continuing to occur is one of the worst manmade humanitarian crises- a noxious, new Nakba. The population of Yemen is being starved and the world has largely sat on its hands to all our shame (https://mwatana.org/en/the-use-of-starvation/). With children prevented from going to school, in part because schools have been military targets and children have been conscripted into the war, hospitals bombed, the blockade preventing full access to medicine and medical equipment — one may perhaps pause at the focus on bricks over bones. However, protecting cultural property is inextricably linked to protecting people.

Heinrich Heine’s oft quoted line from his romantic tragedy, Almansor, presciently warned the world that those who burn books end up burning people (in the play they burned the Qu ‘ran). Gleichschaltung (synchronization) was visceral to the Nazi regime. The Nazis (led by a failed artist, rejected by the venerable Vienna Academy of Fine Arts-twice- for not having any life in his paintings) didn’t begin with gas chambers. They began the Shoah with attacks on culture, burning literature and art. On May 10, 1933, Goebbels staged a book burning with around 40,000 people in Berlin’s Bebelplatz (Opernplatz), as darkness fell in front of the opera. In 1937, in one of the greatest ironies of history, Goebbels and Ziegler curated one of the most phenomenal art shows ever staged, Entartete Kunst (Degenerate Art), which included masterpieces from some of the best 20th century artists: Pablo Picasso, Wassily Kandinsky, Marc Chagall, Egon Schiele, Paul Klee, Otto Dix, Max Ernst, Ernst Ludwig Kirchner, Emil Nolde, Oskar Kokoschka and Georg Grosz. Yet they staged this show to encourage people to spit on these artworks and other vile acts and villainy and many of these 16,000 brilliant works have not yet been recovered. This type of barbarity and vandalism is what the brilliant international legal jurist Räphael Lemkin viewed as part and parcel of genocide. In 1933, Lemkin submitted his proposal to criminalize cultural assassination to the 5th International Conference for the Unification of Criminal Law, as the Nazis were in the process of committing it. Lemkin’s proposal was not accepted. Even after the Nazis proved Lemkin’s theory — which he felt on his own skin, as a Polish Jew forced into hiding in Poland and who lost nearly his entire family during the war- the international community failed to listen. In 1944, in his book, Axis Rule in Occupied Europe, Lemkin coined the term genocide, the killing of a tribe, and in his analysis of what this constituted, he put cultural assassination as a visceral part of a genocidal strategy. As Richard Bevan notes in book, The Destruction of Memory: Architecture At War, attacks of churches, temples, mosques, libraries and other buildings of cultural significance is a deliberate targeting to achieve “enforced forgetting”. This is exactly what Lenkin argued — that cultural vandalism aimed to erase a culture and that there was an inexorable path from cultural vandalism to murder en masse. In a grave mistake, while the world accepted Lemkin’s neologism and he was appointed one of the drafters of the genocide convention, his views on the importance of cultural attack were not. Imperial countries and European ex-colonies, including the U.S., U.K. and Australia, were firmly opposed to including cultural genocide in the Convention, understanding they had committed it. Genocide is now firmly established as ius cogens, a peremptory norm but remains a distinct crime from cultural destruction.

The destruction of cultural heritage and looting have long been recognized as a war crime. Gaius Verres, the Sicilian governor extorted the people of Sicilia and plundered their temples for his own gain and was banished for doing so, via a successful and unopposed prosecution from Cicero, memorialized via In Verrum. In 1863, President Lincoln commissioned the Lieber Code, named after its eponymous drafter, Professor Francis Lieber. The Code was a pamphlet for Union soldiers with rules on how they should act during the war. General Order 100 ordered the Union troops to preserve and protect works of religious and cultural property “against all avoidable injury”. The Lieber Code, which also espoused the doctrine of proportionality, was soon adopted in Europe, with the Prussians adopting the code in their 1870 war against the French. The Code was soon adopted by the French, Spain, Italy, Serbia and other European nations. In 1874, Russia submitted a proposal for the protection of civilians and cultural property, aligned with the Lieber Code in Brussels with the parties’ adopting the International Declaration Concerning the Laws and Customs of War. These were later utilized as the framework for the Hague Conventions of 1899 and 1907 concerning the laws of war, including protection against pillage and protection of cultural heritage. The 1949 Hague Convention prohibited “extensive” destruction of property that was not justified by “military necessity” and committed “wantonly”. This was extended in the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (CCP), which applied to both immovable and movable cultural property, including prohibiting the removal by an occupying power of cultural property except for a limited time and only for its protection. The CCP limited any targeting of cultural property to when it was an “imperative military necessity” and defined this as only when the enemy forces utilized the cultural property for military purposes. The first and second Protocols in 1977 and 1999 limited the ability to target civilian objects, including cultural property, for military objectives (with Greece and Egypt most vociferous on the protection of cultural heritage and limiting the ability of warring parties to define cultural property as a military object). The 1999 Protocol codified individual criminal responsibility. Despite this, however, prosecutions have failed where they should have succeeded. For instance, of the Croatian generals who destroyed the 16th century bridge Stari Most (the Old Bridge) of Mostar in Bosnia, with over 60 shells on the 9th November, 1993. Initially convicted of war crimes, they were acquitted in 2017 right before the court closed its doors in a logically fallible finding that collapsing the bridge was due to military necessity, despite the fact that there were ten bridges within a short distance over the Nerevta. Justice Fausto Pocar, who was President of the ICTY for several terms, delivered a damning dissent correctly pointing out that the destruction of the bridge was not proportionate and not a military necessity. Justice Pocar also questioned the majority’s failure to grasp the cultural significance of the historic bridge. The bridge was of great cultural significance to the Muslim community in Bosnia. Additionally, one can hardly be blind to the malicious message of destroying a bridge in a war, particularly in Bosnia, which was the heart of old Yugoslavia, with its inextricable mix of Orthodox Serbs, Catholic Croats and Muslims- a bridge in itself.

However, there is also progress. Ahmad al-Faqi al-Mahdi pled guilty to the war crime of intentionally destroying religious and cultural buildings and artefacts in the historic city of Timbaktu, Mali, in June 2012 and was sentenced to nine years. There is increased recognition of the inextricable relationship between cultural destruction and oppression. Irina Bokova, former Director-General of UNESCO, in an address to the Security Council in 2017, stated that the protection of cultural heritage from “cultural cleansing” was inseparable from the protection of human rights and that the prevention of cultural heritage destruction was a security imperative. Most recently, in June of this year, the ICC has stated its policy to prosecute attacks against cultural property — including both tangible and intangible property. The whitepaper outlines that attacks against cultural heritage can be prosecuted as a war crime as well as a crime against humanity (see https://www.icc-cpi.int/itemsDocuments/20210614-otp-policy-cultural-heritage-eng.pdf). Unfortunately, despite the progression of its jurisprudence, the ICC is weakened by the limits of its jurisdiction: it continues to lack jurisdiction over the U.S., China and Russia (which withdrew). As Biden addressed the U.N. this week heralding a supposed new era of U.S. diplomacy with a renewed engagement with the world community, the U.S. should start by accepting the jurisdiction of the ICC.

The destruction of cultural property tears the tapestry of our humanity and is a crime against it. An APA claim for violation of the NHPA respecting the granting of a license by the Department of Defense for a sale of weapons without addressing the adverse impact on cultural properties and ensuring mitigating measures will not only protect historical and cultural properties but the people to whom they belong.