The “War” Model, Iraq’s Role, and the Need for Strategic Focus

Thanks to Chris and his colleagues at OJ for giving me an opportunity to participate in this important discussion.

Today we’re focused on broad premises underlying the book, and in particular the utility of using the concept of war in connection with counterterrorism policy.  Peggy’s most recent post critiques the Bush Administration’s emphasis on the war model, concluding that “the framing of our current counterterrorism policy as a “war” — including the legal policies Ben effectively critiques in the book — has cost the U.S. more in terms of prestige, reputation, support from allies and cooperation from other foreign states than it has gained us.” Perhaps so, but I’d like to press on that claim a bit.

First, there is the question of where Iraq fits into this analysis.  If in discussing the “war model” of counterterrorism policy we are including the decision to invade Iraq in 2003 (and all that has followed thereafter), then I can see the strength of Peggy’s argument.  Certainly the rhetoric of counterterrorism played a significant role in generating support for that invasion, and certainly Iraq subsequently became plagued by terrorism. So perhaps would should treat these policies together in this discussion.  But perhaps we aim to discuss the “war model” of counterterrorism policy as something distinct from Iraq, something that concerns the more narrow questions of when and to what extent it is legitimate or wise to invoke IHL principles to justify policies that have been employed in connection with al Qaeda and others separate and apart from Iraq.  This, I think, presents a more difficult question.  At the risk of becoming too focused on cost-benefit analysis, I will also note that none of us can say with much certainty just what offsetting benefits these policies have produced over the past six years.

None of which is to say we should simply move forward with the status quo.  Far from it.  As Ben persuasively contends in his book, the status quo is flawed in many respects, including the use of IHL concepts (e.g., detention for the duration of hostilities) without adequate consideration of the strategic goals for which those concepts will be deployed or the problems of legitimacy (and hence sustainability) that emerge when rules premised on one set of expectations (e.g., uniformed soldiers fighting as part of a regular armed force) are applied in a context that upsets those expectations (e.g., an enemy force whose members entirely eschew distinction, creating a much higher risk than normal of false positives and negatives in the detention process).  The task at this point should be to think carefully and thoroughly about those larger strategic goals (a point often emphasized by Matt Waxman), and then to craft legal and policy instruments tailored to achieve them.

Such instruments may in many instances be the stuff of existing domestic and international legal frameworks (including IHL and, let us not forget, IHRL), but Ben makes a powerful case that this is not true across the board.  And where it is not true, Ben’s book also reminds us that we then face the subsidiary question of which institution or institutions should play a role in crafting new instruments.