19 Mar The Latest on Our Global War
The Trump Administration last week released its first “Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations.” The report continues a practice initiated at the end of the Obama Administration and subsequently codified into requirement by Congress by which the Administration makes clear (among other things) where and under what legal authorities the United States is using military force, and how key domestic and international law rules apply to practices like targeting and detention. The publicly available Trump version of the report is far sparser than the Obama Administration report; this report seems to leave some essential points to the classified annex that accompanies it. Still, it remains highly useful as an official statement of the U.S. basis for using force (including, for example, attacks on Syrian government forces “to counter immediate threats” to partner forces of the United States there). A summary of the report’s contents is here.
There are several items of note in the report, not least of which is a troubling return to the bad old days in which the United States declines publicly to name which terrorist groups we consider ourselves at war with – identifying them here only in the classified appendix. (The full text of the report regarding the scope of the 2001 AUMF is as follows: “The classified annex contains more information on the application of the Authorization for Use of Military Force (2001 AUMF) to particular groups and individuals.”)
It is, however, among the report’s least surprising positions that should be seen as most significant: like its past two predecessors, the Trump Administration has embraced the notion that the United States is engaged in a singular, global non-international armed conflict against a shifting set of terrorist groups. This idea – which, after 17 years of U.S. efforts, has yet to be embraced by any other country in the world – continues to have a profound, and in many ways, warping effect on the law of armed conflict a/k/a international humanitarian law (IHL). Among many such effects: a growing group of legal scholars today urge that we reconsider the utility of the distinction (at the heart of IHL) between violence that counts as an “armed conflict” and violence that doesn’t. Critics raise a range of concerns, with the U.S. post-9/11 conflicts typically Exhibit A: the line dividing “armed conflict” and not is no longer clear or stable enough to provide meaningful guidance; current definitions may compromise humanitarian interests, prospects for criminal justice or both; perhaps most important, the “armed conflict” classification no longer reflects current moral, political, or strategic sensibilities about the role of lethal force in an age in which global threats have changed. I critiqued some of these claims to an extent in a review of Rosa Brooks’ book, How Everything Became War and the Military Became Everything: Tales from the Pentagon, out in AJIL late last year. I take them on in far greater detail in a new piece here (forthcoming Va. J. Int’l L. 2018). Among other things, I argue, it is not at all apparent that changing the terms on which we permit the use of lethal force will achieve the goals IHL’s current critics seem to seek.
But the Trump report – which, with little fanfare and in an otherwise rapidly changing world, embraces the legal construct that has framed and in many respects guided U.S. military operations for the better part of 20 years – underscores what should be an even more pressing concern. As the list of countries in which the U.S. is engaged in hostilities grows (Niger has joined the list since last report), and the purpose of U.S. intervention in some of these places blurs (the report reminds us that while ISIS has lost 98% of the territory it once held in Iraq and Syria, and will soon have lost 100%, we’re planning to keep bombing in Syria after that nonetheless), we’ve increasingly replaced a difficult conversation about the adequacy of international security policy with an easier (if ultimately misguided) debate about the adequacy of international security law. The problems to which “armed conflict” classification critics rightly attend – problems of interpretive uncertainty, law compliance, and social change – are familiar dilemmas in all legal systems. The problem of fighting a set of enemies we’re not willing publicly to name – that’s new.