Don’t Let the Legal Policy Tail Wag the Foreign Policy Dog

I will join the chorus of praise for this terrific book. But I want to add briefly to Peter’s critique of Ben’s premise that the current threat from transnational terrorism has us in a “long war,” by looking at what this means for broader foreign policy – one that encompasses, but it is not driven by, domestic legal policy. The book correctly, and refreshingly, recognizes two important points: (1) that addressing the threat of terrorism requires approaches that encompass domestic law enforcement and regulation as well as applications of armed force and multitude of other cooperative intelligence and military operations; and (2) that this hybrid policy approach has been – and continues to be – the hallmark of U.S. counterterrorism policy since at least the Regan administration. (I hope we can all finally retire the well-worn line of the Bush administration that “the problem with prior administrations was that they viewed terrorism purely as a law enforcement problem.”) Given those important admissions, what is the rationale to adopt the framing of counterterrorism policy as a “long war with a dangerous foe?” (p. 17)

Whatever our legal policy is or it should be (and I agree with Peter it must have a large international law component) it should be governed by a sound overarching counterterrorism policy that looks to all the tools available: executive action, domestic legislation, international treaties, and the use or expansion of existing multilateral institutions, and, importantly, building public support for a multi-faceted approach. Indeed, by focusing on only domestic legal policy, Ben’s book seems to implicitly endorse the notion that the U.S. is unique in its experience of terrorism and the challenge of crafting laws to address it. Ben has a nice turn of phrase describing the need for the president to work with Congress in forging an appropriate legal framework: “One can still make a theoretical argument for an executive-only approach to problems like global terrorism. In practice, however, the argument is an unreal dream.” I would rewrite the sentence as to read: “One can still make a theoretical argument for a U.S.-only approach to problems like global terrorism. In practice, however, the argument is an unreal dream.” What follows from a multilateral approach may include some of Ben’s prescriptions, but it shouldn’t be driven by them.

As we discussed during the OJ round table on Derek Chollet and Jim Goldgeier’s book, policy bumper stickers can hurt and mislead as much as they can help. In addition to whatever harms it may have caused to the law, the framing of our current counterterrorism policy as a “war” — including the legal policies Ben effectively critiques in the book — has cost the U.S. more in terms of prestige, reputation, support from allies and cooperation from other foreign states than it has gained us. And it has arguably made us less secure. In addition to Peter’s plea for “real lawyering” on the international side, we clearly need a ramp up of real international diplomacy.