Importance of the Brennan Speech (I)

by Marty Lederman

In his speech last evening, Deputy National Security Advisor John Brennan clarified and strengthened a number of important points that the Obama Administration had previously articulated or suggested, and helpfully tied them together to provide a more comprehensive account of the President’s counterterrorism approach, particularly with respect to the U.S. commitment, emphasized by Brennan, on adherence to the rule of law and respect for international law norms.  In this post, I’ll focus on his remarks about the use of force.  In the next post, I’ll briefly discuss some of the more important aspects of the speech dealing with detention and prosecution.

It’s evident that a principal purpose of this section of the speech concerning the use of force, especially outside the “hot battlefield” of the Af/Pak theater, is to further distance the Administration from the “Global War on Terror” framework that infected U.S. characterizations of our counterterrorism strategy shortly after September 11th.  “[W]e are at war with al-Qa’ida,” emphasizes Brennan–not with all terrorists the world over.  (Brennan explains that our “ongoing armed conflict with al-Qa’ida stems from our right—recognized under international law—to self defense.  This is not news, or controversial.  See, e.g., U.N. Resolution 1373 (Sept. 28, 2001).  There is no such self-defense rationale available as a matter of the jus ad bellum with respect to all international terrorist groups.)

But what about Brennan’s references, early in his speech, to al-Qaida “adherents” and “affiliates”?  Although Brennan explains that “adherents” of al-Qaida–including “individuals . . . with little or no contact with the group itself”–have become a serious national security challenge because they can and do conduct attacks in the United States, the U.S. is not at war with each of them.  That is to say, the U.S. is not resorting to the use of military force against them.  Brennan also points to the danger of al-Qaida “affiliates”; but he does not suggest that the U.S. practice is to use military force against all al-Qaida “affiliates,” either.  As the Administration’s recent National Strategy for Counterterrorism explained, “‘Affiliates’ is not a legal term of art.  Although it includes Associated Forces [i.e., cobelligerents of al-Qaida and the Taliban engaged in the conflict against the U.S., against whom force may be used], it additionally includes groups and individuals against whom the United States is not authorized to use force based on the authorities granted by the Authorization for the Use of Military Force. . . .  The use of ‘Affiliates’ . . . is intended to reflect a broader category of entities against whom the United States must bring various elements of national power, as appropriate and consistent with the law, to counter the threat they pose.”  In other words, military force is authorized against al-Qaida, the Taliban and their cobelligerents.  But the increasing threats from groups and individuals who are more loosely inspired by or affiliated with al-Qaida will appropriately be countered using other tools of counterterrorism strategies, apart from the use of force.

Brennan then moves on to a matter about which “there is some disagreement”–namely, “the geographic scope of the [armed] conflict.”  The reason this question can be important is that, as a matter of international law, combatants in an armed conflict can use lethal force against the forces of their enemy and its cobelligerents, in compliance with the laws of armed conflict, without having to satisfy the prerequisites to the use of lethal force that would presumptively be applicable (e.g., under the ordinary domestic-law rules of the governing state) outside the context of armed conflict.

Brennan acknowledges that there are some in the international community—”including some of our closest allies and partners”–who take the view that the armed conflict with al Qaeda and its associated forces is limited “only to the ‘hot’ battlefields.”  (I’d add that there are also some who would deny the existence of an armed conflict with al-Qaida altogether–a view long rejected by the U.S.)  Brennan respectfully notes the U.S.’s disagreement with this view:  “The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to ‘hot’ battlefields like Afghanistan.”

Brennan does not say that the armed conflict with al-Qaida is “global”–that it extends the world over.  But he does strongly imply what has been evident for some time, namely, that the U.S. believes the conflict extends at a minimum to locations (such as Yemen and Pakistan) from which enemy forces regularly plot and launch attacks against the U.S.

Brennan’s primary point of emphasis, however, is that even in those locations, where the U.S. is of the view that the restrictions and immunities of “armed conflict” are in effect, it is not the Administration’s view that it can or should use lethal force without limitation:  “That does not mean,” Brennan said, that “we can use military force whenever we want, wherever we want.”

For one thing, “international legal principles, including respect for a state’s sovereignty and the laws of war, impose important constraints on our ability to act unilaterally—and on the way in which we can use force—in foreign territories.”  This is of a piece with the views repeatedly expressed by Harold Koh and others, as I explained here, that the Administration is committed to conducting the armed conflict in compliance with the laws of armed conflict, including Common Article 3 of the Geneva Conventions, fundamental customary law norms (e.g., the principles of distinction, proportionality, humanity and necessity), and, as Brennan stressed, norms of state sovereignty (including those in article 2(4) of the U.N. Charter), which generally prohibit the use of force in another sovereign state unless either that state consents, or the state’s government is “unwilling or unable to take the necessary actions” that are permitted to the U.S. under the doctrine of self-defense.  [Even if Kevin is correct that the scope of the “unable and unwilling” doctrine remains subject to contestation, it is not news that the United States views it as applicable to self-defense against threats posed by nonstate actors taking sanctuary in states that are unable or unwilling to interdict the threat.  A preview of Ashley Deeks’s forthcoming important paper on this question is here.]

What is more–and this is perhaps the most important aspect of this portion of Brennan’s speech–notwithstanding the possible differences in views between the U.S. and some other nations on the geographic scope of the armed conflict, “[i]n practice, the U.S. approach to targeting in the conflict with al-Qa’ida is far more aligned with our allies’ approach than many assume.”

How can that be the case?

Well, as Brennan elaborates, even those allies who would deny the expanded scope of the armed conflict beyond “hot battlefields” agree with the U.S. that a nation may use force in self-defense against an entity or state that is “planning, engaging in, or threatening an armed attack against U.S. interests,” even outside of the “hot battlefield,” if the threat of such action is “imminent.”  (Again, such self-defense actions must comply with sovereignty and other international norms, such as the requirement that the response be necessary and proportionate vis-a-vis the future threat.)  And Brennan explains that outside the “hot battlefields” the U.S. is not using force against enemy forces without discrimination among them, as it would be entitled to do in an armed conflict, but is instead hewing to what would be permissible if the U.S. were only acting on a self-defense theory, i.e., what would be permissible even in the absence of an armed conflict:  “This Administration’s counterterrorism efforts outside of Afghanistan and Iraq are focused on those individuals who are a threat to the United States, whose removal would cause a significant – even if only temporary – disruption of the plans and capabilities of al-Qa’ida and its associated forces.”

Brennan is aware that some will be skeptical of this claim that U.S. practices outside the Afghan theater are not dependent upon the existence of an armed conflict with al-Qaida, because it is not obvious to such skeptics how the imminent-threat predicate for self-defense is satisfied with respect to al-Qaida “associated forces,” such as AQAP, found in those locations.  That is the reason for Brennan’s paragraph on imminence, in which he explains that “[w]e are finding increasing recognition in the international community that a more flexible understanding of ‘imminence’ may be appropriate when dealing with terrorist groups, in part because threats posed by non-state actors do not present themselves in the ways that evidenced imminence in more traditional conflicts.”  As many OJ readers know, this is a very complex topic, which warrants its own distinct discussion.  I’ll briefly inject only one point here to complement Brennan’s account of the evolving international consensus on the question:  Brennan mentions that “[o]ver time, an increasing number of our international counterterrorism partners have begun to recognize that the traditional conception of what constitutes an ‘imminent’ attack should be broadened in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.”  I would add that the principal function of the imminence requirement, historically, has been to ensure that force is not used in self-defense precipitously, where there is some chance that the other side (traditionally a nation state) will strike, and even overt threats of such, but where such a strike is far from certain.  This requirement of temporal caution makes eminent sense in the case of tensions between nation-states, where even the most heated rhetoric and substantial planning for use of force might not result in an actual attack because the myriad other tools of diplomacy and inter-state strategy might well be sufficient to deter the threat.  (Think, of course, of the Cuban Missile Crisis and most of the cold war, or the various means that have been used to address threats from Iran.)  By contrast, in the case of some terrorist organizations, such as al-Qaida, that are unabashedly devoted to attacking the U.S. wherever and whenever possible, that are constantly planning such attacks, and that have already demonstrated that they will attack whenever feasible, there is less uncertainty of the threat than in the case of many tensions between nation-states.  In such cases, the requirement of imminence before the use of force in self-defense arguably should be tempered somewhat.  This is an oversimplification, of course, of a complex question.  But I do suspect such considerations are also at play in the development of the evolving consensus that Brennan is describing.

Three other potentially important points are worth noting:

First, Brennan’s speech intriguingly suggests that, at least in practice, U.S. use of force outside the “hot battlefield” may be even more restrictive than a traditional self-defense model would indicate.  He states that U.S. efforts in such locations “are focused on those individuals who are a threat to the United States, whose removal would cause a significant – even if only temporary – disruption of the plans and capabilities of al-Qa’ida and its associated forces.”  Although this sentence does not indicate that such a “focus” is legally necessary, it hints that the threat assessment is typically made at the individualized level, rather than with respect to the organization as a whole, such that the force is employed against those representatives of the organization posing the threat, rather than at “forces” of the organization more broadly.  (Of course, the legal requirements of necessity and proportionality associated with the self-defense doctrine may in some cases require such discrimination, in any event, depending on the circumstances.  Moreover, as a simple strategic matter, where a terrorist organization consists both of discrete elements, or factions, that pose a threat to a nation state, and those that don’t (because they’re directed at other objectives), the nation state is more likely to concentrate its force in self-defense against those parts of the group that pose the threat, and not to those that don’t.  It’s certainly possible Brennan’s sentence about individuals is explained by these two considerations.)

Second, the Brennan speech is (perhaps intentionally) unclear on whether, in practice, the use of U.S. force in Pakistan is more akin to the “armed conflict” model in Afghanistan or to the more tailored, self-defense-compliant picture that he paints for locations outside the “hot battlefield.”  That is to say, it doesn’t clearly answer the question whether the FATA region of Pakistan is part of the “hot battlefield,” or Afghan theater, in practice.  This ambiguity is, I suspect, a function of the fact that (as far as I know) the official United States position continues to be that it will not confirm whether it is using any force in Pakistan at all.

Finally, there is a very important passage about use of force later in Brennan’s speech.  It has become commonplace for some to suggest–typically without any actual supporting evidence–that, either because the U.S. no longer bringing detainees to Guantanamo, and/or torturing such detainees, it has resorted to a policy of using lethal force against persons who, a few years ago, it would have captured instead.  Brennan unequivocally rejects this common canard:

[S]ome have suggested that we do not have a detention policy; that we prefer to kill suspected terrorists, rather than capture them.  This is absurd, and I want to take this opportunity to set the record straight. . . .  I want to be very clear—whenever it is possible to capture a suspected terrorist, it is the unqualified preference of the Administration to take custody of that individual so we can obtain information that is vital to the safety and security of the American people.  This is how our soldiers and counterterrorism professionals have been trained.  It is reflected in our rules of engagement.  And it is the clear and unambiguous policy of this Administration.

Of course, there will be contexts, particularly in some of the locations to which Brennan is referring, where capture is infeasible, for various reasons of logistics, technology, diplomacy, the nature of the consent the U.S. has obtained from other nations, etc.  But Brennan’s remarks should put to rest the notion–for which I’ve yet to see any good supporting evidence–that the U.S. policy is now to kill persons who it would have apprehended several years ago.

http://opiniojuris.org/2011/09/17/importance-of-the-brennan-speech-i/

4 Responses

  1. John Brennan: “[S]ome have suggested that we do not have a detention policy; that we prefer to kill suspected terrorists, rather than capture them.  This is absurd, and I want to take this opportunity to set the record straight. . . .  I want to be very clear—whenever it is possible to capture a suspected terrorist, it is the unqualified preference of the Administration to take custody of that individual so we can obtain information that is vital to the safety and security of the American people.  This is how our soldiers and counterterrorism professionals have been trained.  It is reflected in our rules of engagement.  And it is the clear and unambiguous policy of this Administration.”

    Navy Seal in the room where bin Laden was killed: “There was never any question of detaining or capturing him—it wasn’t a split-second decision. No one wanted detainees.”

    Yes, quite the canard, the idea that the U.S. would rather kill than capture.

  2. Response…  I’ll never do that … reply: (some very extreme situation) … the apparent scornful reply doesn’t do much for me.
    And, whatever the “policy” is, there usually is some situation where (unofficially) it is not followed.  So, putting aside one statement by a Seal after the fact is of limited testimonial value, what does this prove as to the general statement made?
     
     
     

  3. Response…
    Of course “war” with al Qaeda is controversial!
    Under traditional international law, one cannot be at war with al Qaeda since it is not a state, nation, belligerent, or insurgent.
    With respect to Brennans embrace of the Bush doctrine regarding preemptive self-defense (not merely anticipatory self-defense) see my response to the prior post re: unwilling or unable

  4. I would think it lends credence to the ‘canard’ we’ll capture AQ.  If you think, and it’s SEAL not Seal, those who go out to do your bidding make it up as they go while in the room, then your comment is of no value. 

    And I didn’t see where Brennan mentioned where he’s going to put all the detainees he’s capturing; except maybe to question them on a Navy ship and release or bring them to the US – which won’t fly if our forces are capturing large numbers of AQ fighters.

    Not to mention drone strikes in PK do not require Presidential approval, which used to be the case, like they do in any other geo locale and the strike #s since BO entered office far exceed anything that came in the 8 years prior – all of which is to say it’s evidence the policy is to kill rather than capture. A kind of whack-a-mole game . . . 

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