The State Department and the War on Terror

Some of the commenters have been trying to prod John Bellinger to discuss the administration’s internal arguments about the legal approach to the war on terror. Of course, he cannot comment on these matters, but we should not let that stop us from discussing them.

Media reports about the debates about international law within the administration appear to reveal three camps. The OLC took the most extreme pro-executive position, arguing that international law (and domestic law!) placed few or no constraints on the president’s authority. The State Department took the moderate position, arguing that international does constrain the U.S. government, including the Geneva Conventions and related customary international law. The Defense Department, if I remember correctly, seemed mainly concerned about ensuring that the Geneva Conventions apply, but seemed unconcerned about other aspects of international law. But I want to focus on the OLC-State conflict.

The dominant view among academics is that OLC was the villain and the State Department’s “L” was the hero. The OLC misunderstood or unreasonably discounted international law, while the State Department advanced a reasonable interpretation of it, or at least appeared to take it seriously. The OLC was staffed by ideologues or fools, while the State Department was staffed with professionals.

But this seems simple-minded, and it ignores everything we know about how bureaucracies work. Bureaucracies, whatever their virtues and flaws, take their missions seriously, and the personnel of a particular agency tend to internalize these missions. This leads elected officials and political appointees to be suspicious about the bureaucracy’s advice—does it advance the public’s interest or the bureaucracy’s interest?—and to discount the advice of bureaucracies whose mission is in tension with the elected officials’ own political aims. This put the State Department in a weak position for the Bush administration, and it needed to take that into account.

The State Department’s job is to ensure that America’s relations with foreign states remain as harmonious as possible. The State Department always takes dovish positions, urging the president to negotiate rather than fight. It also wants the president to comply with international law because otherwise trouble will ensue—a foreign state will object, international bodies will complain, and State Department diplomats will need to be deployed to smooth ruffled feathers and State Department lawyers to address legal complaints.

The OLC’s job is to protect the president against Congress and the courts—or, if you want, to advance the president’s authority vis-à-vis these institutions. Now this job does not, by itself, imply anything special about what OLC’s position on international law would be. But, in practice, international law tends to be a nuisance for the executive branch, because treaties were entered in the past when conditions were different, and now interfere with current goals. As this problem often arises in domestic litigation, perhaps the OLC has come to see international law as an instrument used by courts to frustrate the executive, and no doubt it blames Congress as well, whose members will, when politically advantageous, pummel the executive for violating international obligations. So one suspects that over time OLC has come to see international law as a device that Congress or the courts use to ensnare the president, and this has generated a skeptical attitude toward international law that is in tension with that of the State Department, which needs to be able to see international law through the eyes of the foreign officials with whom it constantly must deal.

The executive is a “they,” not an “it”; and so the different legal institutions that compose it will have more or less influence on the president’s official legal position at any given time, based on internal bureaucratic politics, the clash of personalities, and other factors that people have to ignore when they are debating the finer points of international law. I wonder whether future historians will reveal that what drove the administration to discount international law after 9/11 was not contempt or indifference for international obligations and foreign countries per se, or even bad legal reasoning, but the assumption that international law is an instrument of Congress and the courts for constraining the executive. This gibes with the view, often attributed to Cheney, that the executive needs to regain power that it lost to Congress and the courts in the 1970s.

To the extent this is right, this institutional agenda would incline the president to heed the OLC rather than the State Department, which would need to work that much harder to make its views felt. To the extent that the narrow interpretations of international obligations adopted by the administration to handle the war on terror turn out to be unwise, the responsibility will lie at least partly with the State Department (its chief, not its lawyers) for having failed to make clear to the president the political costs of being perceived to violate international law, whatever the right interpretation. With respect to the OLC, if its positions had put the president in an untenable position with respect to Congress and the courts, it would have served him poorly, but this does not seem to be the case—so far. Many of the legal positions of the administration have been rejected but others have been sustained, and all in all the administration’s legal approach to the war on terror today is not much different from what it was immediately after 9/11. But if these positions get the U.S. in trouble internationally, that is something for the State Department to have made clear to the president. And what would have gotten the president’s attention was not a treatise on international law but a clear picture of the negative consequences of taking a position on international law that other states did not agree with.

In fact, Colin Powell tried to do this—he argued that American soldiers would be mistreated in future wars if the U.S. violates (that is, “narrowly interprets”) the Geneva Conventions today. But perhaps he did not argue forcefully enough—perhaps he should have threatened to resign. Or perhaps this argument was just not persuasive.