Armed Conflict With Al Qaida: A Reply

by Eric Posner

[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.

http://opiniojuris.org/2007/01/15/armed-conflict-with-al-qaida-a-reply/

8 Responses

  1. In the first wave of detainee litigation, the cases were randomly scattered among judges. One district court ruled that its detainee was entitled to be treated as a civilian. Either change him with a crime or let him go. Another court ruled that its detainee was presumtively a POW unless found otherwise by a “competent tribunal”.

    In today’s form of US Government, the Executive cannot simply adopt an interpretation of law and then make it stick. There are hundreds of people with the inclination and the authority to second guess any such decision (9 of whom really matter).

    As a result, the administration seems to adopt the most ambiguous, insubstantial, indeterminate position available. “These people are not Prisoners of War, but we will treat them the same as real POWs while insisting that they are entitled to nothing.” The rest is determined by litigation.

    The executive may be forced into the “null interpretation” because almost nobody believes that the executive has any authority to interpret anything beyond the drafting of routine regulations. If you start by asserting nothing, demanding nothing, and conceiding nothing, then you will neither be right nor wrong. Foreign states should not expect more of a country that can spend three to five years just working its way through the pre-trial motions before one of these cases moves on to discovery.

  2. I would like to comment that this approach to interacting with a member of one’s government is very troubling to me. Essentially, I am receiving carefully developed position papers that seek to sound eminently reasonable from Mr. Bellinger to which a response is sought. Points that are immediately relevant are deferred to later in the week, yet I fully expect that they will not be addressed.

    I suspect that certain points have been included in this first post so that if a response is not made to them at this time, it will be considered that we are acquiescing in those points. So I am permitting myself to reserve my position on anything to which I do not directly respond here.

    Afghanistan. I believe we will have to await more analysis of the history to determine whether the coalition attack on Afghanistan was a legal response by the United States and its coalition partners in an act of self-defense after the 9/11 attack. I remember that the Administration was very dismissive of what the Taliban offered in response to the request to turn over certain Al-Qaeda persons. I have tended to think Afghanistan worked as a matter of self-defense and in light of the September 12 UNSC resolution but I have felt so duped by this administration on so many things that I will only allow myself to go that far.

    Non-state actors. I have no problem with armed conflict being claimed between a state and a non-state actor – Grotius wrote about that going back to antiquity. See his Laws of War and Peace. Nothing new under the sun.

    Framing as two-wars. I recognize that the Administration would like to frame the discussion as two armed conflicts – one with Al-Qaeda as a non-state actor and one with the Taliban as a state (actually failed state) actor. I personally reject that vision as it seems there was great interaction/coordination between Al-Qaeda and the Taliban in Afghanistan. Moverover, I believe that has been the case in Iraq (remember Al-Zarkawi coordinating with Sunni dissident elements at some points and not coordinating (Samara dome) at other points).

    I think the distinction the Adminsitration is making is not something that is meaningful on the ground. The reason for this evident effort to distinguish the war in this way seems to be to permit the administration to seek a different legal regime for prosecution of the war between Al-Qaeda and non-Al-Qaeda types.

    Proportionality. My question is whether this Administration is following an approach to the prosecution of these armed conflicts that has any even distant relationship to proportionality? When we look at the state of war in which we are plunged for the past five years, and the amount of death in those armed conflicts, the secret prisons, the torture, etc. that are part of this effort, one wonders at what point 9/11 becomes an excuse for depradation.

    For example, 5 Al-Qaeda persons are in Somalia. Therefore we help arm and have the Ethiopian Army go into Somalia to overthrow the Islamic Courts (please do not insult our intelligence and deny this – the boats were not off the coast just as happenstance). Those good ole warlords then invite us in (or we shape them into a compliant puppet to invite us in). We then go and bomb with a daisy cutter where the alleged Al-Qaeda operatives are and kill (according to BBC accounts I understand) at least 500 people. Where is the proportionality in that?

    Iraq. Some Al-Qaeda person sat in Baghdad at some point prior to the War in Iraq and that becomes part of the basis of why we can go into Iraq. We go in after Saddam Hussein – we fight them there so we do not have to fight them here being the logic stated – yet we learn afterward there is no link between Saddam and Al-Qaeda (or weapons of mass destruction). So where is the armed conflict with Al-Qaeda part of this war in a country with no Al-Qaeda links? 200 000 to 600 000 Iraqis are dead now that would not have been dead but for our decision. Where is the proportionality in that kind of self-defense?

    Strategic vision. All I have been hearing the past year or so is the strategic vision for the Middle East – where is the Al-Qaeda armed conflict in that strategic vision? Is there any relationship to proportionality in this scheme? How Middle Easterners have to die to make that strategic vision come true – is that a proportional response by us to Al-Qaeda?

    At what point are high level civilian authority like Mr. Bellinger liable for violations of international criminal law. Mr. Bellinger notes the efforts of his office to support international criminal law efforts around the world. However, where and when has Mr. Bellinger sought to stay the hand or advocated to Justice etc that the high-level civilian colleagues who have designed and implemented war crimes be also prosecuted. Not the low level grunts at Abu Ghraib or David Passarro. But the Geoff Miller’s or the John Yoo’s or the Alberto Gonzales. When a lawyer like Alberto Mora is running around Defense complaining about what is being done – why are Bellinger’s comments only those of an apologist for criminal acts. I was simply appalled by Mr. Bellinger’s testimonty to the Human Rights Council on the Convention Against Torture. Mr. Bellinger always has the right to resign rather than compromise himself in this manner.

    As to Iraq, self-defense has not given us the authority to go in their nor did the Security Council authorize us going in. We have seen the War Crimes trial of Saddam Hussein come finally out to be what we suspected from the beginning – a lynching. I hate Saddam but at least he should have had lawyers of his choice and not ones designated by the court. That was what we permitted the Nazis at Nuremberg.

    We have Abu Ghraib as only a tip of the iceberg of a system of American prisons for some 14 000 persons around the world in conditions that are purposely kept murky. Some persons have wisely said that we lost Iraq the day the Abu Ghraib pictures came out and I am coming around to believing that.

    We have a Legal Advise saying the Convention on Torture is murky where it is not.

    Bellinger makes a veiled reference to the size of the Al-Qaeda threat as if he was aware of intelligence or something that makes that threat that broad. Also, the reference is made as to how other states react to the US pursuit of Al-Qaeda persons.

    As to the null interpretation or narrow interpretation, I can not believe that the staggering cost in troops and treasure of the present war for the United States is not seen as a reflection of horizontal enforcement through their non-action by other states in response to our semantic games about our compliance with our international obligations. Why should the United States comply with internatioanl law – because it is law that we ignore at our peril. Boy, have we had to learn that again.

    Best,

    Ben

  3. Professor Posner and Mr. Bellinger,

    Thank you both for participating in such an open forum on these important and controversial matters. Both of your comments are very instructive, especially when read in tandem. Professor Posner’s distinction between “narrow” and “null” interpretations (which I will ruminate on a bit below) is especially insightful, though I do think that the last three points about “candor” miss the point of the peculiar institutional role of the Legal Advisor, which cannot be reduced to promoting international cooperation (as with the DOS as a whole) or to any other kind of instrumentalism (as with other more unapologetically “political” actors within the Executive).

    Professor Posner’s distinction between the “narrow interpretation” and the “null interpretation”–that razor thin edge of the traditional wedge between law and politics– is where we find what might be called “the internal view,” in this case the professional commitment of lawyers to their vocation. The internal view can be contrasted with the kinds of explanations which would seem more obvious from the external view of social scientists and other alien observers. Professor Posner, though an educator at a major law school, has no necessary commitment to the internal view, and therefore (as he does in his recent book) he can afford to view law as one among many contingent explanatory factors in influencing the behavior of state actors. Mr. Bellinger is also forced on a regular basis to recognize the limits of law in world politics, but in contrast to the purely external view, his professional vocabulary will not permit the view that international law simply vanishes at the sight of other interests. Instead, his office is charged with articulating the continuing relevance of (narrow and limited) resources of international law in the service of clients who –as it happens– would usually benefit in the short term from arguing the null view. His is a task of translation between instrumental interests and legal principles, and the result will often (but not always) be the kind of narrow view we see here.

    In application to the issues at hand, Mr. Bellinger’s office has been consistent and careful in offering the narrow view, based on a few legal arguments: (1) The US is participating in an international armed conflict against terrorists, (2) insofar as terrorists are not states, there is an essential asymmetry that it would be improper to overcome by applying inter-state IHL; (3) that based on “lex specialis” principles, human rights treaties ought not be applied; (4) that certain principles of IHL survive the non-applicability of specific treaties; and that (5) the status of ambiguous combatants cannot be determined by principles of IHL. These arguments are at least competent from the point of view of international law, and there hasn’t been much wiggling as far as these few principles go. (Incidentally, at this moment in history, the US has not attempted to overturn the entire regime of IHL since almost all of the traditional applications of this area of law continued over the same period of time to applied in a rather traditional manner in Iraq).

    As a lawyer myself, I understand that these arguments are at least minimally competent and that the defensive parrying that goes with the Office of the Legal Advisor will generate a few generally acceptable arguments where one’s political client will not be constrained. Obviously we wouldn’t expect to hear this administration bother with formalistic terms like “lex specialis” if the translation was not in line with other restrictive interpretations and novel permutations of IHL (in domestic executive orders, regulations and legislation) that actually deformalize the IHL framework. From the point of view of policy actors (as opposed to lawyers) legal arguments provide merely one more set of alternative arguments that can arrive at the same result. In the macro view, reflected in less careful statements by the President and even more so the Vice President’s office, fragments of formalism such as the Authorization for Use of Military Force (AUMF) amount to a sweeping emergency declarations as broad as Ciceronian maxims.

    True, from an instrumental point of view, the office has defended almost everything a simpler doctrine of prudence would. This is where Professor Posner enters with a novel objection. Instead of engaging with the common language of international lawyers that Prof. Bollinger shares with his opponents (say, rights instrumenalists and legal maximalists), the question Prof. Posner asks is why bother at all, with self-defense, lex specialis, the determination of status, or any other legal argument? Why not be candid about instrumentalism? This misses the point of the peculiar institutional role of the Legal Advisor. The institutional balancing act performed by the Legal Advisor is not easily explained in Prof. Posner’s framework, which identifies the Administration with the Legal Advisor’s position one-to-one. It is probably more correct to say that the positions generated by the Office are generated in the tension between professional roles of the Advosor, regularly defending a legally competent minimalist position to a professional collegium of legal maximalists (and bloggers), while working behind the scenes to restrain the client’s articulations of a purely null theory.

    Of course I have qualms about a great number of the Legal Advisor’s recent statements to various international bodies (I am particualrly puzzled by the statement to the CAT that contradict CAT Art. 2(2) that neither “a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”). Yet there is also a point where Prof. Posner’s sociological observations join the concerns and suspicions of relative maximalists, including myself. I’m afraid the Legal Advisor misses an opportunity every time he alludes to a background of unarticulated minimum standards (here “fundamental law of war principles”) without being clear about the sources or content of these standards. While the Legal Advisor has been admirable in follwing the lead of the Administration, the Supreme Court, and the Legislature once standards have been suggested to fill various gaps, I’m not sure if the Office has ever positively articulated what fundamental principles ought to apply as a matter of international law. If not, this gives the Administration too little of the guidance it needs and too much of the silence it takes for approval.

    thanks,

    Vik Kanwar

    JSD Candidate, NYU

    Westerfield Fellow, Loyola- New Orleans

  4. “International law is spongy material.” And, say, US constitutional law is not?

    As for the whole difference between a “null” interpretation and a “narrow” interpretation, that is just a legal-sounding sort of way of saying that international law is not really law, that it is lacking in moral force or legitimacy, that it is unable to constrain states acting in self-interest, etc, etc.

    Heard it all before, among other places in Milosevic’s Serbia for about a decade or so of my life. Look where it got him. May the shade of Carl Schmitt always be your companion in exploring SpongeBob that is international law.

  5. I must say I can’t see why Mr. Davis raises the issue of proportionality:



    Proportionality. My question is whether this Administration is following an approach to the prosecution of these armed conflicts that has any even distant relationship to proportionality? When we look at the state of war in which we are plunged for the past five years, and the amount of death in those armed conflicts, the secret prisons, the torture, etc. that are part of this effort, one wonders at what point 9/11 becomes an excuse for depradation.

    How is there standing for proportionality here? The US has not ratified Protocol I Additional to the Geneva Conventions and has no intention of doing so (President Reagan at the time explicitly urged the Senate to reject Protocol I.)

    Seeing as how the proportionality argument stems from language in Protocol I, I fail to see how such enters into consideration of US actions in the legal sphere. Is there some other ratified treaty such a consideration would spring from?

  6. Proportionality is a rule of international law whether someone is an adherent to the Additional Protocol or not.

    Best,

    Ben

  7. I echo Ben’s comment. The rule of proportionality that is reflected in Article 51 of AP I (actually more appropriately defined as the prohibition against indiscriminate attacks) was actually adopted by the U.S. Army in Field Manaul 27-10 in 1975, two years prior to AP I coming into force. This was a recognition of the binding nature of this customary law of war norm.

  8. Mr. Corn’s response regarding the Field Manual was what I was looking for, in part. You can find the document in question here:

    Field Manual 27-10

    As Mr. Corn was relatively brief, I’m going to assume he referred to Section IV, Paragraph 41, entitled “Unnecessary Killing and Devestation.” The pertinent wording therein:

    Particularly in the circumstances referred to in the preceding paragraph, loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained.

    I find it a bit of a stretch to see that this recognizes a concept of proportionality in the manner in which Mr. Davis cited it. It would seem the concept as defined therein is limited to military attacks, and is similiarly qualified by the military advantage granted, rather than any political or strategic objective.

    While it may certainly be debated whether the policy goals in Iraq have met with success, the actual military operations themselves, in the form of the destruction of the Iraqi military and government, were both swift and decisive.

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