Goldsmith Responds About “Co-Belligerency”

Jack Goldsmith has responded to my post about the D.C. Circuit’s rejection of co-belligerency in Al-Bihani.  It’s an interesting response, worth a few additional thoughts.

To begin with, it is important to note that Goldsmith does not respond to the substance of the panel’s criticism of the idea that state-centered notions of co-belligerency can be applied to non-state actors in NIAC. Recall what it said:

But even if Al-Bihani’s argument were relevant to his detention and putting aside all the questions that applying such elaborate rules to this situation would raise, the laws of co-belligerency affording notice of war and the choice to remain neutral have only applied to nation states. See 2 L. OPPENHEIM, INTERNATIONAL LAW: A TREATISE § 74 (1906). The 55th clearly was not a state, but rather an irregular fighting force present within the borders of Afghanistan at the sanction of the Taliban. Any attempt to apply the rules of co-belligerency to such a force would be folly, akin to this court ascribing powers of national sovereignty to a local chapter of the Freemasons.

It can’t be pleasant for Goldsmith, one of the primary architects of the co-belligerency rationale, to see his position described as “folly” by a panel of the D.C. Circuit.  So I would hope that, at some point, he would take the time to explain why it makes sense to analogize between states and non-state actors with regard to concepts such as neutrality.  I”m skeptical, but I’m certainly willing to be persuaded otherwise.

Instead of making that argument, however, Goldsmith simply points out — correctly — that the panel’s rejection of co-belligerency was dicta.  I did not argue otherwise.  Indeed, I chose my words carefully: I said the panel “concluded” that co-belligerency did not apply in NIAC, not that it “held” that it did not; and I said that, as a result, the argument was “discredited,” not that it was “rejected.”  The government remains perfectly free to continue to argue co-belligerency.  It is also under no obligation to make a substantive argument in defense of that idea.  But it is certainly my right to point out (1) that neither Goldsmith nor the government has ever explained why the state/non-state actor analogy is justified; and (2) that, dicta or not, a panel of the D.C. Circuit has described the analogy as “folly.”

Finally, I’m baffled by Goldsmith’s statement that my position may lead me to a place I don’t want to go, because “if the laws of war for NIAC are silent on an issue, the main alternative to arguing by analogy to IAC in interpreting the AUMF is to conclude that the laws of war place no limits whatsoever on the AUMF.”  That statement implies that when the laws of war — in IAC or NIAC — are not silent on an issue, they do in fact place limits on the interpretation of the AUMF.  But that is certainly not the US position, nor does it seem to be the position of conservative scholars like Goldsmith.  Both insist, for example, that the AUMF authorizes the targeted killing of anyone who is a member — to quote the government’s brief in Al-Aulaqi — of “an organized armed group that is either part of al-Qaeda, or is an associated force, or cobelligerent, of al-Qaeda that has directed armed attacks against the United States in the noninternational armed conflict between the United States and al-Qaeda.”  The idea that the US is in a global NIAC with al-Qaeda directly contradicts the laws of war, which limit NIAC to specific areas in which hostilities reach a certain level of intensity.  Yet I don’t see the government or conservative scholars arguing that the AUMF should be interpreted to limit targeted killing to individuals who participate in the NIACs that are actually taking place in Afghanistan and Pakistan.  Nor do I see the government or conservative scholars arguing that the AUMF limits targeted killing to individuals who are either members of an “organized armed group” participating in those specific NIACs or otherwise directly participate in them, which are the only criteria consistent with the laws of war that apply in NIAC.  Those laws are not “silent” on the issue of who can be targeted, as Goldsmith suggests.  What they say is simply too limiting for the US’s tastes.  So the government and conservative scholars invent new ways to expand the category of individuals who can be “lawfully” targeted under the AUMF beyond the limits imposed by the laws of war — such as by arguing that an individual who does not fall into either of the traditional categories can still be killed at any time if he is a member of an organization that is a “co-belligerent” of a group involved in the (imaginary) “noninternational armed conflict between the United States and al-Qaeda.”  That is not interpreting the laws of war, by analogy or otherwise.  That is ignoring them.

I am fully aware, of course, that the US is going to decide for itself who it can “lawfully” kill and when it can “lawfully” kill them.  What I object to is the desire of the government and conservative scholars to minimize the political repercussions of their radical approach to targeted killing by appropriating — and distorting — the language of international law.  And let’s be clear: that is exactly what they are doing. It is no accident that the government and conservative scholars take the position that the AUMF is informed by the laws of war, not governed or limited by them. Doing so enables the US to pretend that it takes the laws of war seriously while still reserving to itself the right to ignore those laws when it finds them inconvenient.