Armed Conflict With Al Qaida: A Reply

[Opinio Juris welcomes Professor Eric Posner as a guest respondent. Professor Posner is Kirkland and Ellis Professor of Law at the University of Chicago.]

Thanks to Roger for asking me to write a reply to John Bellinger’s post.

I’m going to ask—even though I suspect that John will decline to answer—what is at stake in this argument. The Bush administration wants maximum flexibility in dealing with al Qaida, and understandably. What are the possible constraints? They are all familiar—the U.S. Constitution, Congress, domestic public opinion, foreign public opinion, foreign governments, and so forth. Everyone understands how these factors constrain and shape the American response to al Qaida. Another such constraint is international law. International law is spongy material, however, and it can be interpreted narrowly or broadly. The critics advance broad interpretations, interpretations that would require the U.S. government to grant rights to members of al Qaida that could interfere with anti-terror operations. The U.S. government, consistent with its goal of maximizing its flexibility, prefers the narrowest possible interpretation. As John takes pains to suggest, this does not mean that the U.S. will necessarily use the most aggressive measures available; but it does mean that those measures will always be an option.

The narrowest possible interpretation is, of course, that international law does not apply at all: the U.S. can do what it wants. Members of the Bush administration apparently considered this possibility at one time but the U.S. government has not officially adopted it. Let’s call this the “null position.” It could, for example, have argued that the international laws of war developed prior to al-Qaida-style international attacks, and cannot be considered applicable to them. We can imagine that if the Bush administration had adopted the null position, this would have provoked outrage and concern around the world. But perhaps this outrage and concern would have been worth incurring, because the advantages of being unconstrained greatly exceeded the costs. The outrage and concern would have died out as they always do, but the security benefits would have remained.

There are various possible broad interpretations. One is that the United States simply cannot treat al Qaida as a belligerent. Another is that members of al Qaida are belligerents but they are entitled to broad protections embodied in the Geneva Conventions and customary international law. Suppose (very counterfactually) that the United States had adopted a broad interpretation. Would the rest of the world have applauded? Would they have been more cooperative (perhaps by joining the invasion of Iraq or refraining from pressuring the United States to join the Kyoto treaty or the ICC)? Are there subtle types of anti-terror operations going on right now that are being hampered because foreign states refuse to cooperate with the United States as much as they would if the United States had adopted (and complied with) a broad interpretation?

The U.S. has adopted a narrow interpretation a hair’s breadth away from the null interpretation. John says, “A state acting in self-defense must comply with the UN Charter and fundamental law of war principles.” On the American position, the U.S. is complying with the UN Charter because that document allows it to go to war, in self-defense, against a non-state entity; so no constraint there. As for these “fundamental” law of war principles, well, what are these anyway? Perhaps rules like the principle of proportionality, but no one thinks that even under the null interpretation the United States would blow up a city in order to kill a handful of al Qaida members. So the narrow interpretation advanced by John is, I suspect, roughly the same (as a practical matter) as the null interpretation.

This, then, brings me to the question. If the U.S. gets all the benefits of the null interpretation, why not candidly adopt it? What is the advantage of adopting the narrow interpretation instead? I see three possibilities:

1. Despite what I said above, the narrow interpretation differs from the null interpretation: it constrains the U.S. a little bit. In return for this self-constraint, the world cooperates with the U.S. more than it would otherwise—but, correlatively, only a little bit.

2. Despite what I said above, the narrow interpretation differs from the null interpretation: it constrains the U.S. a little bit. However, the U.S. gains nothing from this self-constraint, or very little, because the rest of the world does not distinguish the null and narrow interpretations—they are equally bad. In this case, the U.S. has erred and should adopt the null interpretation.

3. The world does not care so much about the substance of U.S. actions but it cares deeply about the U.S. lording it over other states, making them feel less than sovereign. Indeed, perhaps many or most foreign governments want the U.S. to exercise no self-constraint. What good does it do them? The narrow interpretation, then, is like diplomatic protocol: substantively empty but nonetheless important as a way of confirming the formal equality of states.

One concrete question that arises from all this is this: Have foreign states retaliated against the United States because it has adopted the narrow rather than the broad position? Would foreign states have retaliated more against the United States if it had adopted the null position? I do not mean “retaliation” literally but as a stand-in for a decline in cooperation of all sorts, including failure to abide by existing international law that benefits the United States.