Trump vs. International Law: Koh’s Blueprint for Ending America’s Wars and Avoiding Perpetual War

[Rita Siemion is International Legal Counsel at Human Rights First.]

In his new book, The Trump Administration and International Law, former State Department Legal Advisor and Yale law professor Harold Hongju Koh tackles, among other issues, how to finally end America’s post-9/11 wars. In offering a blueprint for the Trump Administration, Koh hits some important nails right on the head. Most notably, he is spot on with respect to next steps on Guantanamo and Authorizations for Use of Military Force. When it comes to lethal targeting, however, his vision does not go far enough to adequately rein in the war paradigm.

Guantanamo

Koh rightly emphasizes the closure of Guantanamo and ending of military commissions as “[p]erhaps the most surprising, yet obvious, step” that President Trump could take to “demonstrate that he has meaningfully started to reduce American overstretch and to end the many burdens of the Forever War.” He notes that while early on in his administration Trump boasted of his desire to keep Guantanamo open, historically policymakers who have first viewed Guantanamo as the answer to their problems later realized that using Guantanamo “creates far more problems than it solves.” For instance, he emphasizes that President George W. Bush, who opened Guantanamo, ultimately began working toward closing it because, as Bush explains in his memoir, “the detention facility had become a propaganda tool for our enemies and a distraction for our allies.”

Indeed, Trump himself has demonstrated a willingness to recognize the drawbacks of Guantanamo, and its defective military commissions in particular. As Koh highlights, Trump declined to send Sayfullo Saipov, the New York City truck attacker, to Guantanamo, and instead touted the superiority of federal courts:

“Would love to send the NYC terrorist to Guantánamo but statistically that process takes much longer than going through the Federal system. There is also something appropriate about keeping him in the home of the horrible crime he committed. Should move fast. DEATH PENALTY!”

Koh then rightly highlights four strategic benefits of closing Guantanamo that would likely appeal to President Trump: 1) at a shocking cost of $11 million per year per detainee for the current population of 40 detainees, closing Guantanamo makes good financial sense; 2) shutting down an important terrorist propaganda tool and Obama’s failed military commissions in favor of prosecuting detainees swiftly and effectively in the proven federal courts enables Trump to prove himself to be both tough and smart on terrorism; 3) the closure of the detention facility would be a highly visible and readily achievable symbolic step that would demonstrate to Trump’s base that he truly means to rein in America’s overextended and overmilitarized foreign policy; 4) and perhaps most importantly, closing the detention facility at Guantanamo would give President Trump bragging rights over former President Obama, who, for all his efforts, simply wasn’t able to get the job done.

Koh provides a detailed and feasible plan for closing the detention facility and ending the military commissions at Guantanamo through diplomatic transfers, federal court prosecutions, plea bargains, and on-going periodic reviews for detainees who cannot be transferred or prosecuted. He notes that Congress could empower President Trump by modifying overseas transfer certification requirements put in place during the Obama Administration and by enabling Article III plea agreements by video conference so that detainees could plead guilty to federal charges without ever leaving Guantanamo.

Finally, Koh discusses the importance of not sending any new detainees to Guantanamo and highlights the legal quagmire that would result from sending an ISIS detainee there without explicit Congressional authorization for the war with ISIS. One matter Koh does not address, however, is what a sustainable solution would look like for the large number of ISIS fighters currently in the custody of the Syrian Defense Forces (SDF). While he notes that the risk that partner forces may torture detainees can be mitigated by negotiating assurances, he does not address the risk that such forces simply cannot hold detainees indefinitely and that states must step in for such individuals to be prosecuted—but aren’t doing so quickly enough to address the growing problem. Getting states to share responsibility for the growing number of ISIS fighters in the custody of nonstate actors is an important part of any long-term solution.

AUMF

Koh also argues that to truly end the “Forever War,” the United States must formally end the war with Al Qaeda and its cobelligerents “by narrowing and repealing two Authorizations for Use of Military Force that were enacted nearly two decades ago to authorize quite different wars.” He goes on to explain that, as readers well know, the 2001 AUMF was enacted seventeen years ago to prevent Al Qaeda from again attacking the United States, “not to enable a distant battle against IS, a terrorist group that did not exist at that time and that has now clearly split from Al Qaeda.”

He contends that the Obama Administration’s claim that it could go to war with ISIS under the 2001 AUMF because ISIS was a splinter group of Al Qaeda “introduced a dangerous methodology that effectively invites current and future presidents to cite ‘factual evidence of common AQ DNA’ to declare war against a succession of groups increasingly far removed from the Al Qaeda that Congress declared war against after September 11, 2001.” Indeed, he argues, if current and future presidents can shoehorn every future terrorist group into the 2001 AUMF’s coverage that is arguably a splinter or successor group, “we will have stopped trying to end the ‘Forever War’ and will have instead reverted to a perpetual Global War on Terror.”

Noting the growing bipartisan consensus that the fight against ISIS rests on uncertain legal footing, he argues that what is needed is a statutory authorization that reflects the current threat actually facing the United States. This, he says, can be achieved by passing a narrowly tailored AUMF that contains five critical safeguards. He urges that any new use of force authorization should 1) be ISIS and mission specific; 2) include a sunset date that would require Congress to affirmatively vote on whether and under what terms to reauthorize the use of force as the conflict evolves; 3) repeal the outmoded predecessor AUMFs; 4) include more stringent transparency and reporting requirements; and 5) include some form of ex post review mechanism, judicial or otherwise, for evaluating lethal actions outside the Afghan theater.

With these essential safeguards in mind, Koh then looks at two recent proposals in Congress: the Kaine-Corker AUMF and the Merkley AUMF. Despite the laudable effort by Senators Tim Kaine (D-VA) and Bob Corker (R-TN) to reach a compromise that would reassert Congress’s authority over war making, Koh correctly emphasizes that the Kaine-Corker bill would “perpetuate, not end, the Forever War by codifying Congress’s abdication of its constitutional duty to declare war each time a new conflict begins. In effect, it would reverse the constitutional structure by allowing the president to declare new wars, then shift the burden to Congress to muster the two-thirds vote in each house necessary to block them.” Such an approach would be, he says, “exceedingly unwise.” It would not only fail to foster meaningful congressional engagement or oversight but would expand and perpetuate the Forever War.

A better approach, offered by Senator Jeff Merkley (D-OR), would meet the first four of Koh’s five requirements while providing the executive branch the authority and flexibility needed to address current threats effectively. Senator Merkley’s AUMF would authorize the use of force for three years in Iraq and Afghanistan against the Taliban, Al Qaeda, and ISIS for the purpose of protecting the United States and its compelling interests from attack by those entities. It provides clear authority for addressing existing threats, preserves the president’s Article II authority to use force in self-defense, and sets up expedited procedures for the President to seek authority for engaging in armed conflict against additional groups or in additional countries if such force becomes necessary in the future. It also includes robust reporting requirements and an express requirement to adhere to international law, including the law of armed conflict, when using force pursuant to the authorization (an important requirement that should be added to Koh’s list of conditions).

If President Trump wants to fulfill his campaign promises to rein in U.S. foreign engagements, he would be wise to start with scaling back outmoded war authorizations that lead to mission creep. If force is to be legislatively authorized, Koh rightly argues that it should look more like the Merkley proposal than the Kaine-Corker one. “If Congress follows the Kaine-Corker path, and overbroadly authorizes a fight against IS that mutates endlessly to include new enemies, we will have tipped the balance toward perpetual war.”

Lethal Targeting 

In the opening of his chapter on “America’s Wars,” Koh strikes a somewhat more personal tone when describing his journey from working to keep the post-9/11 wars within legal limits as State Department Legal Advisor to becoming convinced that “the larger, more critical project was bringing the Forever War to an end.” As he argues, “peace should be the norm and war the exception.” But for all his recognition of the need to continue fighting terrorism without remaining on a perpetual war footing, Koh’s concerns are focused on the dangers of wars that are unbounded in their substantive and temporal scope—who we are fighting and for how long. When it comes to geographic boundaries for wartime targeting, however, he offers only the unwilling and unable test and the Presidential Policy Guidance put into place by President Obama as constraints.

Koh is of course right to argue that the use of armed drones in wartime can be lawful. But if peace is to be the norm and war the exception, as Koh argues should be the case, the legality of a use of lethal force—by drone or otherwise—should be evaluated under the law of armed conflict in the context of hostilities, and under human rights law in all other circumstances. What Koh offers instead is a global war approach that allows the war paradigm to follow the members of Al Qaeda and associated forces wherever they might go for the duration of the conflict.

Koh comforts the reader by noting that a law enforcement approach would be required where the individual is located in a state where officials are “ready and willing to arrest him.” But under this approach, if the host state is not willing to arrest the individual or is willing to consent to war-based targeting, there is no legal bar to the U.S. targeting the suspect by remote control even if the U.S. has the ability to arrest the individual and even if the individual does not pose an imminent threat to life. War ceases to be a narrow exception when the only legal limit to applying wartime targeting rules around the world is the suspect’s alleged membership in Al Qaeda, ISIS, or half a dozen other associated forces and sovereignty-based objections. Indeed, under this approach the war paradigm has metastasized to more than half a dozen countries.

As an additional set of safeguards beyond the sovereignty-based unwilling or unable test, Koh lauds the presidential policy guidance erected by Obama that have since been significantly watered down by Trump. By limiting strikes to where there is a near certainty of no civilian harm and to senior operational leaders who post a “continuing imminent threat” to the United States, Obama attempted to rein in, as a matter of policy, its broad view of when wartime targeting was legally available. But, as Koh highlights, presidents cannot bind future presidents with mere policy. Indeed, the Trump Administration has reportedly already made sweeping changes to these safeguards.

In my view, if we really want to wean ourselves off of our dependence on the war paradigm and prevent tipping the balance toward perpetual war, the blueprint for sustainable counterterrorism needs to include a more constrained view of the geographic scope of armed conflict-based targeting rules as a matter of law, not just mutable policy. Given Koh’s overarching theory of the case that such policies often harden into law over time, maybe a strong policy is a good place to start. But if that’s the case, that policy should reflect the necessity and proportionality standard of human rights law, and not another made-up unrecognizable amalgamation of armed conflict, sovereignty, and human rights rules. Human rights law provides sufficiently flexible standards for when lethal force may be used to address threats across a range of contexts, including where traditional law enforcement methods are not readily available or may not be sufficient.

Countering terrorism effectively over the long term will almost certainly require following terrorists who pose a threat across state borders. Government lawyers like Koh are right to want to offer policymakers legally available tools for addressing such threats. But targeting rules designed for the unique and exceptional context of hostilities need not and should not be used outside of that context in place of human rights standards if we want to move away from a perpetual war paradigm.