My thanks to Opinio Juris for organizing this remarkable discussion, and to John and all the guest respondents and those commenting for taking part. Opinio Juris is one of the most refreshing blogs around because its bloggers have a wide range of political views, eclectic interests, and strongly held opinion – and yet its discussions are always unfailingly polite, friendly, while still erudite and scholarly. It’s always a pleasure to read. So thank you for the opportunity to be a guest here and thanks to John for being willing to address a global public in this very public way.
In this short post I want to go beyond the discussion that John has put on the table regarding the characterization of actors under the law of war in counterterrorism. I want to think in a very forward looking way about US counterterrorism policy – conceptually more than legally, and looking forward to what counterterrorism policy should be rather than looking back to justify past or ongoing practices. Clearly, for anyone who knows my writings, I tend to John’s views on many of the laws of war issues. I want to set all that aside, however, and for a moment think looking forward.
Viewed as a strategic question, counterterrorism conducted against transnational terrorist networks with transcendental religious motivations, on the one hand, but the tools and technology of globalization, has something like the following list of strategic tools:
Tools of law enforcement. These include traditional domestic law enforcement, seeking to trace the threads of terrorist cells and plots, and ordinary prosecution, trial, conviction processes in US courts. In addition, it includes cooperation with non-US police agencies – the ‘global government networks’ of police agencies. The problems with this approach include that it is post-hoc and reactive, rather than forward-looking and anticipatory; Judge Posner details the many problems in his recent books on domestic counterterrorism; in any case, it was the failed strategy up to 9-11.
Tools of war and armed conflict. By war and armed conflict, I mean the full weight of military forces against some target. Sometimes those targets will be actual terrorists – in Afghanistan, for example – and the military will be engaged in war with the terrorists. But mostly “real” war will be directed against states, at least in the first place – because that is what our military assets are largely about. The aftermath of a war directly against a state, as in Iraq, may produce a situation in which the military is fighting against insurgencies and militias, etc., including foreign jihadist fighters – and over time it might develop tools both tactical and technological for dealing with such fighting. But most of the time it seems doubtful that it will be fighting transnational terrorist groups as such. The military will mostly be about going after states (and whatever fighting with nonstate actors after the regimes falls) – either states (including failed states) that serve as safe haven for transnational terrorists or else states that threaten to supply catastrophic WMD to terrorists. The range of situations calling for ordinary war going forward, at least about transnational terrorism, is pretty limited at this point.
Tools of counterterrorism that are neither war nor law enforcement. I don’t have a good name for this category, but it seems to me that much, if not most of the action, against transnational terrorists will fall into a category that is neither of the above. It ranges from intelligence gathering activities to uses of force premised on that intelligence – uses of force that might still fall short, however, of the legal definition of armed conflict. It differs from law enforcement in that its intent is not post-hoc reaction but anticipatory and preventive. It differs from war in that although some of the actors might be military and parts of it blur with war, uses of force would tend to be more limited and not rise to the legal definition of armed conflict. Some of the activities would include surveillance and other forms of intelligence gathering, cooperation and coordinated action with non-US intelligence agencies, detention of terrorist suspects, interrogation of suspects, monitoring and action against terrorist financing networks, targeted abduction, targeted assassination, destruction of terrorist bases, equipment, and material infrastructure. This is a highly heterogeneous list.
The term ‘global war on terrorism’ describes, for the United States, both a strategic and legal position with respect to al-Qaeda as a transnational terrorist network. The United States is not at war with terrorist groups everywhere in the world, not even with all the transnational terrorist groups, but instead with al-Qaeda. Of course, al-Qaeda itself is a network, so the definition of the enemy in the global war on terror is itself porous – groups that share its aims but not its command, etc. Lots of people will have lots of views on the strategic utility of war as a prism through which to see the global struggle, but in my view is that it is very powerful and is the proper starting place. It is not the only lens through which to understand how to formulate a counterterrorism strategy, but it has the virtue, to start, of understanding things as our enemies do – as war, and as directed against us. It is no less useful as a strategic concept than conceptualizing the Cold War as a war in an important, although not exclusive, strategic sense. One may opt for some mix of offensive or defensive strategies, but the analytic power of seeing it as war in the first place seems to me plain, although I recognize that others will disagree.
Seeing the strategic struggle as war, however, does not necessarily correspond to the legal definition of war and the invocation of the law of war. The Cold War was understood as war in many strategic and analytic senses – as a matter of law, however, the entire Cold War and all its many encounters, across law enforcement, intelligence, covert action, and so on, was not considered a single gigantic, global, decades long war in the formal legal sense. The Cold War as such was not a war in the sense of the laws of war, even though there moments and places in which particular situations rose to that level – Vietnam, etc. The times and places in which the law of war formally applied were limited to situations that met the legal definition of armed conflict – and encounters between spies, intelligence gathering, even assassinations and activities by the KGB and CIA did not meet those standards.
The same is true of the global war on terror. It is a mistake, in my view, to go forward with a conception of the global war on terror in which our strategic vision of war forces us to the conclusion that the whole global war on terror is in fact war as a matter of law. The legal definition of armed conflict is narrower than the strategic application of the concept of war, and we should accept that. In that case, there are two US wars ongoing today (leaving aside what has and might happen in Somalia) – Afghanistan and Iraq. Those are the two places to which the formal law of war should be applicable. If that is the case, and if it further the case that the US intends to pursue al-Qaeda with the full range of tools described above, the question becomes, what bodies of law regulate those activities? In the case of regular law enforcement, the answer is plain and well worked out. In the case of war – ordinary war, not applying it to global counterterrorism, but the situation on the ground in the two armed conflicts, Afghanistan and Iraq, the rules of war are mostly worked out. There are questions of categorization, yes, under Geneva 3 and 4 – and it is also true that numbers of the Guantanamo detainees were picked up in Afghanistan fighting in what counts indisputably as a genuine armed conflict in which fighting is active and ongoing. The US has no obligation to release those detainees to rejoin the fight – on the most traditional definition of when a war is a legal war and when it ends – and leaving aside any existential questions about when the war on terror ends. But if the “war” is considered in the usual definition, then the rules are fairly well worked out.
The same cannot be said of the third set of tools – the heterogeneous tools of intelligence gathering and uses of force acting on that intelligence that fall short of the legal definition of war. There is some US domestic law, in national security law, much of it dating back to the Cold War – and some of it badly outdated, premised on the superpower struggle, a bipolar world, not very applicable to the new circumstances. But there are enormous and unacceptable gaps in the law in most of those areas – gaps in the law and gaps in oversight. Since much of counterterrorism seems likely to take place within those areas, those gaps and legal lacunae within US law seem to me a very bad idea. In part these gaps are a bad idea because the substantive matters – interrogation, assassination, surveillance, etc. – raise basic questions of values – it is not simply a technocratic, means-end calculation, but tradeoffs of fundamental moral goods, and the support of the American people, and sense that the decisions reflect the basic legislative process seems to me essential – just as it was in the Cold War – for sustaining the will for a long struggle.
Of course, one can simply say that much of this falls within the prerogatives of the president. In part that is probably true. That still does not seem to me the basis for a long term policy and, in any case, the Bush administration’s intractability on the issue of executive power seems to me ill-suited for a struggle which it has itself characterized as a long struggle, one that will go on over many years, over multiple presidential administrations. In the case of a long struggle that involves fundamental questions of the balance of security and liberties, of fundamental values of the American people, over a long period and not simply a short term emergency, then these questions have to be taken up by the Congress as well as the president. Hamdan said as much – parts of Hamdan seem to suggest that the Court is checking the president because Congress seems unwilling to do so, and it invites Congress to get back in the game. I think it should (and I do not say this simply as a Democrat, because I’m not one, and I fundamentally support the Bush administration’s on-offense approach) because, in a democracy, questions of such long term import finally have to be addressed by the legislature.
In any case, if the Bush administration cares about having an impact on long term counterterrorism policy – if it cares, which seemingly it often does not, more about the substance of counterterrorism policy than a knee-jerk insistence on executive power – it should recall that what lives by executive discretion also dies by executive discretion. Policies in which this administration believes fervently but which it has failed to get enacted through legislation looking to the long view, and relying instead on presidential discretion, may disappear in a flash in a new administration.
In any case, this seems to be the direction of US law and policy in any case. The Military Commissions Act is not fundamentally premised on the law of war – it is fundamentally premised on definitions of crimes and actors taken from anti-terrorism domestic laws. Material support, conspiracy – the concepts of liability in the MCA are not drawn from the laws of war, but are the beginnings of an attempt to define this third area. It does not make sense to try and shoehorn counterterrorism in this third category into either of the two existing categories – law enforcement or law of war – the attempt will not give us an adequate regulation of this third category and risks badly warping the legal terms of those two. There is also an important question, which Anthony Dworkin raises, about the interaction of US domestic law with international human rights law; I will leave that aside here given the length of this post. But I do think counterterrorism regulation should be taken up by Congress in a comprehensive way, and I think that the administration should recognize that its best chance for impacting the long term struggle against terrorism is by working to secure long term institutions that embrace, so far as possible, its strategic vision – but then, I’m an academic and can dream on. Plainly executive discretion is not – is no longer – enough.