The State Department and the War on Terror – Another View

As a regular contributor here at Opinio Juris, it’s been great having John Bellinger guest blogging with us this week and seeing the exchange of ideas prompted by his posts. In addition, I appreciate having additional guest posters such as Eric Posner and Charles Garraway take the time to engage with these complicated issues. In particular, like Peggy and Chris before me, I found Eric Posner’s latest post—The State Department and the War on Terror—provocative. At bottom, Eric seems to suggest that in the bureaucratic tussle over the role of international law in the fight against terrorism, the State Department is at fault for not doing a better job of advocating its position: State, not OLC, should be blamed for the mess we’re in.

Like his work on international law, I found the bureaucratic theory Eric advances here straightforward and even somewhat elegant. But, just as Paul Berman has questioned the assumptions on which Eric’s international legal theory rests, I wonder if some of Eric’s conclusions here might also fall victim to his assumptions about the way the federal bureaucracy operates. In particular, I see three areas where Eric’s theory likely needs revision. [Disclosure: As someone who worked in the Legal Adviser’s Office at the time—and indeed had a small role in the legal debates over the applicability of the Geneva Conventions to the conflict in Afghanistan—let me be clear that I’m responding here with my own personal views and am doing so in a way that I trust does not disclose any internal deliberations of the federal government.]

First, Eric seems to assume parity in inter-agency politics when advising the President on the legal determinants of foreign policy. In reality, however, I’m not sure that assumption holds with this Administration. If you give any credence to the press reports at the time, OLC had access to information and White House decision-makers in ways unavailable to the State Department. For example, as was widely reported at the time, it appears that the President might have made his initial decision about the inapplicability of the Geneva Conventions without State Department involvement. The efforts by then-Secretary of State Powell—which Eric acknowledges—were actually trying to undo, or at least revise, a decision that apparently had already been made. As behaviour psychology teaches us, it is very rare for decision makers to change their mind after they have committed to action, and new contrary information is often discounted in the face of prior views. As such, I wonder if it’s fair to suggest that State and OLC had equal information about White House thinking and equal opportunities to influence such thinking as Eric seems to assume (note, a separate question that I leave to others (Peggy takes this on a bit) is the question of why the playing field wasn’t level and whether this was an isolated incident or evidence of some structural inequalities among the bureaucratic actors).

Second, I’m not sure I agree with Eric’s characterization of OLC’s mission: “to protect the president against Congress and the courts—or, if you want, to advance the president’s authority vis-à-vis these institutions.” OLC actually identifies for itself two alternative missions (1) resolving “legal issues of particular complexity and importance or about which two or more agencies are in disagreement” and (2) “providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.” When I arrived at the State Department, OLC was seen not so much as an advocate for the White House—a job normally ascribed to White House Counsel—but as an internal arbiter of legal issues for the federal government, capable of providing unbiased and objective advice on the state of the law. That is, not players, but highly specialized umpires. Now, it’s possible that OLC’s self-identified mission is not (or is no longer) its actual mission, and the OLC now does function more like the White House Counsel to defend the White House against threats from other branches and from other components of the executive, but I wonder if we shouldn’t be having a conversation about whether that is an appropriate role for it to play?

Third and finally, Eric suggests that the State Department “always takes dovish positions, urging the president to negotiate rather than fight.” I question this assumption. Peggy’s already provided some earlier examples on this, but let me add that I think Iraq actually undermines the dovish claim. Although Powell played a highly visible role in trying to use the UN framework to the U.S. advantage vis-à-vis Iraq, I don’t know that you can say State was dovish on Iraq at the end of the day; on the contrary, in my mind, the State Department ended up being pretty hawkish about the invasion, not to mention its international legality.