Not Enough Law? Compared to What?

by Marty Lederman

As I was saying, it is a central theme of Law and the Long War that “we do not have a lot of law here” (p.11).

Boy, that sure would be news to David Addington! If we don’t have a lot of law here, then why is it that the Bush Administration has spent the past seven years writing memo after memo arguing that it may disregard, or disingenuously construe, a whole slew of laws that constrain the President in his campaign against al Qaeda? And why has Addington crafted countless signing statements indicating that the President will circumvent Congress’s more recent handiwork?

Perhaps the more pertinent question is: “not a lot of law” compared to . . . what, exactly? Is there any previous war or armed conflict in which the Commander in Chief has been met with remotely as much law governing a military campaign? (David Barron and I argue, for what it’s worth (see pages 712-715), that a major reason why this conflict involves so much more law regulating the Commander in Chief than past conflicts is that this military “campaign” centrally involves detention and intelligence-gathering — subjects that Congress has commonly regulated — and that these activities are occurring not only on traditional battlefields overseas, but in civilian settings here at home, and affecting U.S. persons, such that the legislature has a greater interest in putting brakes on the executive.)

Let’s see. On September 11th itself, in addition to constitutional constraints, there existed: The torture statute. And the Uniform Code of Military Justice, which takes up a good part of Title 10 of the U.S. Code and which contains, among other things, prohibitions on subjecting detainees to assault, threats and cruelty and maltreatment, as well as scores of rules governing courts-martial and military commissions. And most of the rest of Title 10, for that matter. And FISA. And the numerous post-1978 FISA amendments. And dozens of other laws regulating other forms of surveillance — in excruciating detail. And the Habeas Act of 1867. And the Anti-Detention Act (discussed in Hamdi). And the federal assault statute. And the maiming statute. And the federal “stalking” statute (which is in effect a prohibition on threats). And the Posse Comitatus Act. And laws regulating the use of women in the military. And gays. And laws regulating the shooting down of aircraft. And a law governing when ships could be boarded (apparently the subject of at least one OLC opinion, as are most of the statutes listed above).

And then we come to treaties. Are there any treaties binding the conduct of the United States in matters of war? Hmmmm. Let’s see. There are those Hague Conventions. And Geneva — including the provisions in GCIII and IV concerning the treatment of prisoners (which the U.S. had traditionally applied even to prisoners not entitled to POW status, such as the Viet Cong). If, on the other hand, one concluded, say, that certain detainees were not protected by the general provisions of GCIII and IV, well, then, there was always Common Article 3 — which, among other things, categorically prohibits cruel treatment and torture. (Funny, isn’t it, how there are so many legal rules prohibiting cruelty?) And the Convention Against Torture and Cruel [there it is again], Inhuman and Degrading Treatment. And the treaties prohibiting the use of certain weapons (such as chemical and biological weapons). And the UN Charter, establishing jus ad bellum standards.

Oh, and the customary laws of war, too, which had guided U.S. conduct going way back to Lieber and, further still, back to General Washington. They also categorically prohibit cruelty. And let’s not forget the Army Field Manual, which reflected these norms and which served as a guide to the military’s conduct in countless campaigns.

All of that is just skimming the surface — there were a lot more framework laws in place, too.

OK, Ben might reply, but those were old laws, written and ratified and enacted before anyone could have imagined this new kind of threat, this new kind of enemy, this new kind of armed conflict, these new intelligence needs. Yes, that’s true. But I’m not sure what follows from it. Every conflcit is different from those that came before. Each has its own unique exigencies. And the laws enacted prior to each conflict never adequately anticipate the novel settings in which they must later be applied. Nonetheless, this does not mean that ex ante rules are absurd or presumptively inapt with respect to war (the Harvey Mansfield/John Yoo view). There is real value, I think, in adhering to rules laid down ex ante, designed in times of relative calm and reflection. Ulysses and the mast, and all. The burden should be on the executive to convince the legislature of the need for a change, particular with respect to laws (such as the ban on cruelty) that have served the Nation so well for so long.

Ben does not disagree with this. As he emphasizes in his book, that’s the way the burdens ought to be divided in wartime: “In the American system, Congress never takes the lead in a crisis–that is what the President is for.” The President doesn’t get everything he wants: He must publicly justify his proposals, negotiate, and accept some compromised constraints. But Congress generally is not to blame for allowing the White House to take the lead in explaining how the existing, framework statutes and treaties are a bad fit and need a change.

Now, as it happens, in this particular conflict there have been some rules emanating from Congress itself, motivated by the President’s overreaching, such as the 2005 McCain Amendment. (There would be even more such cases but for the shadow of the presidential veto.) But even more frequently, the Administration has asked Congress for statutory changes or authorizations, and in virtually every case Congress has responded.

Ben does not ignore any of this. To the contrary — his book itself contains ten whole pages (135-144) recounting what Congress has done to create what he describes as “a huge amount of legislation” specifically for the conflict against al Qaeda. In most cases, Congress provided the President most (but not quite all) of what he sought. There was, most importantly, the AUMF itself, which the courts have properly read to incorporate principles from the laws of war to govern the President’s “necessary and appropriate” use of military force against those responsible for the 9/11 attacks. Then the USA PATRIOT Act, which contained numerous law enforcement, intelligence-gathering, and military authorizations (and some express or implied limitations, as well). Then some reorganizations of government, such as the creation of the Department of Homeland Security. Numerous changes to FISA, including the Protect America Act and the recent FISA Amendments Act. The Detainee Treatment Act. The Military Commissions Act. Not to mention countless provisions in each year’s authorizations and appropriations laws, establishing rules and organization for DOD, the CIA, DOJ, NSA, etc., etc.

More specifically with respect to Ben’s concerns, Congress has comprehensively legislated on two of his primary topics (electronic surveillance and military commissions), and did so as soon as the Executive indicated that the law needed updating (too eagerly and uncritically, I would argue). Surveillance of the enemy and military tribunals have been around since very early in our Nation’s history, and I think Ben will agree that both are now far more regulated by Congress than in any other conflict. Like Ben, I hardly approve of all Congress has done in these areas, but I think it just doesn’t make much sense to suggest that the legislature has been passive, or that “we do not have a lot of law here.”

As for interrogation methods, well, there, too, there is far more law on the books now than ever before. (And the Army Field Manual contains an absurd degree of specificity and detail.) The Lieber Code, and before that simply the common law that Lieber found “floating” in the lawbooks, was more than enough to establish a flat prohibition on cruelty in U.S. wars from 1775 until 2002. Today, of course, we have several statutes and treaties expressly proscribing cruelty — a word that plainly describes much of what the CIA and DOD Special ops have have been doing — that are only insufficient because we have an executive who apparently believes, in Nick Lowe’s immortal words, that you’ve “got to be cruel to be kind, in the right measure.” Ben’s complaint here, too, is not that Congress has not enacted enough law, but that, in Ben’s view, Congress ought to temper the existing laws to account for the fact that the Executive sometimes violates the prohibition on cruelty. (More on that later in the week.)

That leaves the question of the substance and procedure of military detention, our topic for tomorrow. Here, Ben is correct that the U.S. Code does not provide as much express guidance. There is, however, the provision of the PATRIOT Act providing for a limited period of such detention in defined circumstances. And the 1971 Anti-Detention law. (That’s already more, by the way, than the detention law in almost any other military conflict.) And the habeas act itself, with all of the procedures and evidentiary standards that habeas courts have developed over a couple of centuries. And the Geneva Conventions, which provide standards for detention of POWs and civilians. But besides those laws, there is something of a gap — Common Article 3 does not speak to the question in non-international conflicts, and the AUMF “merely” describes the enemies against whom force is authorized (a limitation that the Administration has ignored), and instructs the Executive to use all “necessary and appropriate” military force against those enemies.

What is “necessary and appropriate”? Well, as Justice O’Connor and, more recently, the judges of the Fourth Circuit have indicated, it’s fair to impute to Congress (and perhaps even to the Constitution) the intent that our detention policy will be informed by — translated from — the laws of war. In Hamdi and al-Marri, the courts have begun to do just that — and in a manner, I submit, that is much more fruitful than any statute we might hope for. Moreover, as I’ve argued to Ben recently, the Boumediene decision has guaranteed a vast majority of the very procedural protections that Ben prescribes.

More on that tomorrow, perhaps. For now, it suffices to say simply: It’s far from ideal, but we’ve sure got a whole lotta law out there.

http://opiniojuris.org/2008/07/29/not-enough-law-compared-to-what/

2 Responses

  1. While it’s a little hard to follow the discussion (you’re all so quick to respond to one another!), I enjoyed reading this post.

  2. The idea that cruelty is not an inherent part of war contradicts not only the wisdom of General Sherman but our own experience in every recent war. Torpedoing oil tankers and letting the seaman burn to death or drown is pretty cruel, but we did it in World War II because it was an extremely effective way of destroying the enemy’s ability to wage war. In the early part of World War I, by contrast, it was expected that a submarine would surface and allow a merchant ship’s crew to evacuate in lifeboats before sinking the vessel. When that turned out to be tactically impractical, presto, it was treated as legal.

    The treatment of prisoners in a non-cruel fashion has a number of prudential rationales–giving incentives to surrender rather than fight on, avoiding the coarsening and moral degradation of those tasked with handling prisoners, to name two–and so these policies have been codified. But this should be a policy judgment based on specific conditions, not an occasion for the legal parsing of rights. (If the survival of the US really did depend on mistreating detainees, few of us would want the Supreme Court to order the nation’s and its own destruction.)

    If the strategic or tactical environment shifts, the balance of concerns may shift as well. Hence, we are much more careful about civilian collateral damage than we used to be because it’s somewhat easier to avoid it with precision weapons and also because the propaganda consequences are more serious with pervasive media. 

    The pendulum is not guaranteed to always swing in that direction, though. New conditions such as international organizations of non-uniformed combatants who deliberately hide among civilians might necessitate policy changes that impose higher costs on both our enemies and innocent (or quasi-innocent) third parties.

    The obsession with due process displayed in this discussion, in the context of military and intelligence operations, strikes me as highly inappropriate and almost a luxury of our unexpected successes in killing and discouraging thousands of terrorists in Iraq and Afghanistan. If we establish elaborate legal rights for captured al Qaeda members, we can be sure that they will be sure to exploit those rights against us to maximize the damage to our interests.

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