The State Department and the War on Terror

by Eric Posner

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.

http://opiniojuris.org/2007/01/16/the-state-department-and-the-war-on-terror/

6 Responses

  1. About the internal arguments, I agree, and this is reflected in the speculative tone of my earler post; all we can do is rely on the public record, personal-professional rumour networks, and perhaps whatever insight we get from re-reading Weber or Durkheim every year.

    But the questions remain valid, and as we continue to discuss them, and I hope Mr. Bellinger will enter the conversation at least where he believes our characterizations are simplistic or unfair.

    thanks agian,

    Vik Kanwar

  2. If the OLC sees its job as “to protect the president against Congress and the courts—or, if you want, to advance the president’s authority vis-à-vis these institutions” then it cannot be trusted with the authority it is given and should not exist.

  3. I’d like to thank Eric Posner for guest blogging with us. As always, Eric’s comments are provocative and I am happy to take the bait. And, while I always enjoy reading what Eric has to say, there’s not much that I agree with in Eric’s post. I think he misstates the core functions of the State Department and OLC and that that plays a part in his undervaluing law as opposed to bureaucratic strategy.

    Eric writes that “The State Department’s job is to ensure that America’s relations with foreign states remain as harmonious as possible.” That’s news to me and, I suspect, just about everyone who works at the State Department. The job of the State Department is to take the lead in executing America’s foreign policy, whatever that may be. It is concerned more about finding an effective means to our policy ends rather than just “playing nice.”

    Even more surprising to me was the description that “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.” I think that is a good description of what has happened under this President but the folks I knew who had previously worked there never described their task in that way. It was more along the lines of providing accurate counsel as to the state of the law.

    And that accurate description—or lack thereof—is what this is really about. In the days and months after 9/11, while OLC was generating the Geneva Convention memos and the torture memos, L was being run by an ex-General Counsel of the Department of Defense (who had also been an Acting Secretary of Defense) and included a staff of lawyers who had worked more at negotiating, interpreting, and applying the laws of armed conflict than anyone else in the U.S. except for some of the uniformed JAGs. This is not to say that OLC was “evil,” but it was inexperienced. OLC was made up of some very bright people with very little knowledge in these matters. By one account John Yoo at the time was the only person in the office who had focused on such issues in any extent (and that was for a few law review articles).

    But, besides the bickering over good guys/bad guys, there is a deeper issue here. Eric either misses (or denies) the fact that beneath all the bureaucratic politics, there is law to be applied. The Geneva Conventions aren’t some mystical vision that may or may not exist; it’s a text, it has its common interpretations, and we have asked our armed forces to apply it consistently for about 50 years. Through conflicts as disparate as Vietnam, Lebanon, Panama, Iraq, Haiti, Bosnia, Somalia, Kosovo, we figured out how to apply the Geneva Conventions. But then OLC takes one look at Afghanistan and all bets are off. All of a sudden the Geneva Conventions are indeterminate. Come on… that’s explained by honestly trying to protect the President? The members of OLC are lawyers, they still have certain minimal ethical standards in advising a client.

    Sure, bureaucracies push and shove each other but not for one moment does law stop existing. Don’t miss the law for the legal positions. So maybe it was just that the President didn’t get the message, or, as Eric put it

    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. (emphasis added.)

    Eric confuses consequences with legality. He is not denying that our actions may well have breached the Geneva Conventions, his point is essentially if the State Department can’t explain why breaching international law would hurt us, then who cares?

    If this is the standard by which we apply the law then, picking up on Eric’s closing, perhaps Colin Powell should have resigned. But if it would take the resignation of a Secretary of State to convince the President not to breach the Geneva Conventions, not to open the door to torture, then what does that say about the President? And if that is all that we hold our leaders to, what does that say about us?

  4. Dear friends,

    I believe the role of the OLC is to give the President legal advice that is binding on the Executive branch. That does not mean that the OLC is there to protect the President. For example, I read recently that when Nixon was thinking about using martial law at the time of Watergate John Dean argued against that and had Rehnquist (who was at OLC) write a legal opinion that disagreed with what Nixon wanted to do.

    Maybe the better way to say this is that the OLC protects the President by also protecting the President from himself by accurately stating the law. Like a good lawyer – saying this or that is a good idea or is a bad idea based on law. That is also what State does.

    Second, there is an informal understanding in the Executive (according to a radical like Reagan’s former Legal Adviser) that for international matters the State Office of Legal Adviser rather than OLC is the authoritative source. So trying to put all this in OLC is a terribly twisted way to try not to hear what State is saying.

    Third, on key January 2002 memos you cite, State was given 36 HOURS to respond – i.e. state being kept out of the loop until the last possible moment by those sbires who were orchestrating the legal analysis through OLC. So State’s role and William Taft’s role was intentionally downplayed by those managing this process. Notwithstanding that, Taft managed a rather remarkable memo on the Taliban being entitled to Geneva protections.

    Fourth, the top military JAG’s were cut out of the process in this arena – arguably important persons to hear from. This was done by William Haynes III. Many of the JAG’s were given lists of interrogation techniques months if not years after the decision was made. Alberto Mora’s eloquent letter on his contact with John Yoo and the Defense Working Group was quite something.

    Somewhere in here it seems that the violations of the Geneva Conventions that all the four top military JAG’s confirmed at Senate hearings in July 2006 are being forgotten. It was unanimous. The MCA is an effort just not to make them prosecutable.

    So all this just says that the whole thing was structured – why? – to get OLC to write a memo that would greenlight the kinds of things that the administration wanted to do.

    Eric Posner’s problem with international law (and I must say that these posts are convenient with Mr. Bellinger’s aren’t they – I would not be surprised by this being coordinated – would not be the first time informal coordination has happened. See Stimson just five days ago) is that he is speculating on why administrations might not follow international law. But, of course, administrations do follow international law. Treaties and customary international law may be pesky at times – but there are reasons for them.

    Just think – what did State say about going into Iraq? Most of what they said is prescient and exact today. What about the Abu Ghraib setting? If Taft had been followed in Afghanistan and Gitmo, the nonsense would not have migrated to Abu Ghraib with good old General Miller “Gitmoizing” Abu Ghraib. The point is that OLC was willing to make a kind of US Foreign Relations Law (President is lider maximo) kind of analysis and basically felt it could ignore international law or twist it in what it wrote. And Americans are paying ever since for that.

    Now as an American I can ask my government to comply with international law just like I can ask the police to comply with domestic law or my employer to comply with employment law. I can ask my government to stop playing fast and loose and having very bright minds do things beneath themselves to enable awful things. I could suggest that these rules of international law did not come out of the sky but were worked out by states in treaties and custom precisely because they speak to what states think are wise approaches that bind them.

    Now, OLC apparently does not have the books on international law – they are at State. Clearly, no one in the Esecutive seems to be capable of saying how do we address the fundamental rule of international law that no state by its internal law can extract itself from its international obligations. This is a rule that is cited for investment disputes between states and foreign corporations as well as in myriad areas. OLC I think is incapable of addressing a concept like that – a concept that is not so hard for State.

    Mr. Bellinger assures us that what we did in the MCA was not an attempt to use domestic law to extract ourselves from our international obligations. That was not what three Republican members of Congress through about the first draft (McCain, Warner and Graham) and that is not what any person who has read that act would understand.

    Give me a break.

    Just because Mr. Bellinger says it simply does not make it so. Of course the MCA was done to protect all those Executive types who authorized awful things. We all saw how nervouse they were about making sure that version happened. And the Defense Authorization Act of 2006 has in it some of the more egregious butt-covering language of the original draft (about a defense to war crimes being that one relied on legal advice). CIA is also reported by some as saying they did not want the techniques (that was Marty right). The whole thing is about covering senior administration persons just like the Hague Invasion Act is not about low level persons but about protecting high level Americans from ICC prosecution.

    Do not treat us as infants, please.

    As to blaming State, Taft told me at the Federalist Society in November 2005 that he regretted that he had not managed to convince everyone of his ideas. So does Powell from what I read. But, you can bring some horses to water but you can not make some of them drink. The fault is not with the person bringing the good advice – it is with the person arguing the bad advice enabling awful things. And the idiot who takes the bad advice.

    And – again why don’t we just prosecute those high-level elite members of government who have failed us so dramatically with their legal advice, their machinations, and their subversion of international law. Maybe then there would be a cautionary tale in the halls of the Executive about “policy” games. Let’s do that even if we do not go the way to impeach Bush for his incompetence in getting us into the Iraq debacle.

    Again, Mr. Bellinger is always free to resign in protest. My dad spent 35 years at State and I know how that place works. He founded the Thursday Luncheon Group.

    Mr. Bellinger and Mr. Posner, kindly refrain from writing more nonsense and speak frankly and openly. These are serious problems and position papers like the memos sent here are simply apologia for awful things. They do not serve America or yourselves. This is your Korematsy moment my friends and I for one expect better of you. And you can tell Condoleezza Rice that too as I shook my head with shat she said at the Centennial ASIL meeting when she was there with Justice Ruth Higgins, Sandra Day O’Connor, Jose Alvarez and Jim Carter. America is better than this.

    Sincerely,

    Ben

  5. @Ben: Don’t let your anger (granted, supposed by me) get in the way of arguing properly.


    and I must say that these posts are convenient with Mr. Bellinger’s aren’t they – I would not be surprised by this being coordinated – would not be the first time informal coordination has happened. See Stimson just five days ago)

    I’ll just (mis)quote you to refute yourself: “Just because Mr. [Davis] says it simply does not make it so”

  6. annej,

    Thank you for the kind message.

    I agree that just because I say it does not make it so. I said it because I have some experience with how an effort to sway opinion can be organized and I smelled the rat and stated it in the opinion. And I am free as you are to say what I think.

    On anger, maybe a little anger is a good thing in these discussions. Justice Jackson (ASIL meeting in 1945) once spoke of the problem of internationalists not having the fire in the belly of the nationalists. Maybe good old Mr. Bellinger needs to get some unfiltered, frank advice from someone who has absolutely no wish or inclination to pander to him. I used to say he was a good man in a bad spot, but now I just say he chose the job and does not resign.

    And one of the reasons put forward at the American Society of International Law annual meeting in March 2006 for not speaking directly to the United States in its resolution on the laws of war and detainee treatment (rather than the final version that framed the rules in universal language) was that the universal version would help support people like Mr. Bellinger in their internal battles in the U.S. government to encourage U.S. compliance with international law. Mr. Bellinger’s position papers show what fools those members of the Executive Council were.

    We do not need apparatchiks. We need lawyers of the mettle of a Cy Vance or a William Taft or a Davis (sorry forgot his last name – Reagan’s Legal Advisor).

    So hear the anger Mr. Bellinger. Please hear the anger. That was why the Republicans lost both houses of Congress – that was real anger and it has not gone away and the idea of an additional 20 000 troops being sent for this debacle makes us angry here in Toledo. Now you may not give a damn about us, but every four years all you guys come here to suck up to us to try to get our votes because no Republican wins without Ohio and Toledo is at the heart of all that.

    Let’s get real folks.

    Best,

    Ben

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