Middle way in counterterrorism?

Another point with reference to the Opinio Juris discussion with John Bellinger, legal advisor to the State Department. Several of the comments to the posts, and something John himself mentioned in the summing up, took up remarks I made on the future of counterterrorism. Several of the commentators suggested that it represented a sort of middle way - an alternative to the war paradigm. I want to be very clear about this particular issue, on the off chance anyone follows this sort of thing:

1. I don't actually think of this as a "middle way" about terrorism, at least as an alternative to war. What I describe instead is a range of tools of counterterrorism, of which war is emphatically one, and one which will always have to be in the arsenal. What I am suggesting is not the kinder, gentler approach to counterterrorism, nor one that would make the human rights folks especially happy, either.

2. A range of tools for counterterrorism includes war (including war against regimes that harbor or provide safe haven for terrorists or provide or threaten to provide weapons of mass destruction to terrorists), armed action short of armed conflict in a legal sense (including the possibility of civilian collateral damage), destruction of terrorist materials such as training bases, assassination, abduction, detention, interrogation short of torture, aggressive surveillance, seizure of terrorist financing and assets, cooperation with foreign intelligence services - all these things long before one gets to actual law enforcement.

3. I would not want anyone to mistake these tools that are neither war nor law enforcement as a somehow kinder, gentler approach to counterterrorism. On contrary, these tools frequently raise unanswered questions as to the legal regime that applies to them, if it is not the law of armed conflict, precisely because some of them are violent, including the possibility of violence to third parties. Some of those questions can perhaps be answered by drawing from the law of war - collateral damage rules, for example, drawn from the law of armed conflict. But others are quite novel. The answers must be given, at least as far as the United States is concerned, by its political branches through legislation.

4. The view gaining currency in the human rights community that general human rights law applies even in the midst of the laws of war is, rather than the long understanding that the laws of war are lex specialis is, in my estimation, merely a strategic invention of human rights lawyers to give answers not otherwise available under the laws of war.

5. In any event, the view expressed by John Bellinger in his last post, that the ICCPR does not apply to bind the United States outside its territory is correct as a matter of law, and does not inhibit the United States as a legal matter in making domestic law determinations of how to approach these issues of standards for actions that are neither armed conflict nor criminal law, although no doubt there are useful policy comparisons.

I have put this rather brusquely, because I would not want to leave the impression that I think that expanding counterterrorism beyond the legal paradigm of a global war on terror makes it somehow nicer. It should not be confused, at least as I would urge it, as a kind of Clinton-Blairite "Third Way" for conducting counterterrorism that somehow does away with violence and nasty stuff. That is certainly not how I intend it. It is, rather, a recognition as a strategic matter that counterterrorism has need of actual armed conflict - war - not typically to fight actual terrorists - sometimes that is true, of course, but mostly the terrorists themselves fade into the background - but instead directed against regimes that provide haven and WMD materiel. That's what the actual war part is mostly about. And pure law enforcement is, well, September 10. Much, if not most, of counterterrorism will fall into the broad range of activities I have given examples of above - for which we require systematization from a strategic standpoint and a legal framework in which to make them coherent tools of long term policy.

Sean Murphy's new paper on the Geneva Conventions and the war on terror

Particularly in light of the discussions over Opinio Juris in the last couple of weeks with John Bellinger, legal advisor to the State Department, guest blogging, with a number of guest respondents, including me - Sean's new paper on the application of the Geneva Conventions to the war on terror is especially illuminating. I found particularly interesting his discussion of the supposedly "seamless" Four Geneva Conventions, and the claim made frequently today, and very frequently in the comments to the Opinio Juris discussion, that if you flunk the Third Convention, you are protected by the Fourth. Sean gives the most direct textual refutation of that claim, in the texts of the Third and Fourth Conventions, Protocol I, and the Pictet and Sandoz commentaries. He also gives an illuminating discussion of the application of the Third Convention, Article 5 meaning of "doubt" in determining whether someone should be given a status hearing for POW status - in particular the question of whether a government is in a position to make that decision on its own, and whether that determination can be made on a group basis or must be made individual by individual. The paper will appear in the forthcoming George Washington University Law Review, Vol. 75 (2007), but the draft can be downloaded from SSRN, here. This is the abstract from SSRN:


Evolving Geneva Convention Paradigms in the 'War on Terrorism': Applying the Core Rules to the Release of Persons Deemed 'Unprivileged Combatants'

SEAN D. MURPHY
George Washington University - Law School

GWU Law School Public Law Research Paper No. 239
GWU Legal Studies Research Paper No. 239
George Washington Law Review, Vol. 75, 2007

Abstract: The purpose of this essay, written in late 2006, is to take stock of the current application of the Geneva Conventions in the global “war on terrorism,” including interpretations recently taken by the U.S. Supreme Court in the Hamdan case. The Geneva Conventions and the laws of war more generally comprise a sophisticated regulatory regime whose rules can and should be closely analyzed by lawyers. Yet, like all law, the inevitable imprecision in the rules presents opportunities for governments to exploit gray areas so as to augment governmental authority, and to avoid sensible interpretations that will protect individuals from overreaching governmental power. Such exploitation invariably severs the rules from their ethical foundation and loses sight of their underlying object and purpose.

The events of 9/11 and their aftermath revealed complicated scenarios that do not fit easily into the traditional paradigms of the laws of war, including the 1949 Geneva Conventions. Highly knowledgeable persons in the field have reached diametrically opposite conclusions about certain fundamental issues, such as whether the conflict with Al Qaeda constitutes an “armed conflict” within the meaning of the laws of war, whether it matters if the Taliban wore regular uniforms or operated within a regular command structure, and whether a person who fails to qualify as a prisoner of war under one convention must invariably then qualify as a protected civilian under another. Many of these controversies arise because the two dominant paradigms that operate within the Geneva Conventions - one concerning “international” armed conflict between two or more states, and the other concerning “non-international” (typically understood as internal) armed conflict between a state and non-state actors - do not fit the phenomenon of global terrorism, where the dominant paradigm concerns transnational armed conflict between state and non-state actors.

Yet from their earliest formation, the laws of war have recognized the problem of dealing with irregular forces and the problem of adapting the law to circumstances that change over time. For that reason, built into the 1949 Geneva Conventions and their additional protocols are the means for taking account of areas that are not addressed explicitly or in detail. Rather than trying to exploit such gray areas in the law, lawyers should seek to inject the dictates of humanity into them, in a manner that best reconciles the competing interests during armed conflict of both governments and persons who are at risk. As an example of how one might allow the Geneva Conventions to evolve in a sensible fashion, this essay discusses the rules that should be applied with respect to the termination of the captivity of unprivileged combatants, such as those held at Guantánamo Bay. While the environment for handling such detainees remains fluid, and the norms expressed by the laws of war on these points are far from certain, this essay suggests answers that are legally plausible and that appear consistent with sound policy choices. Similar efforts to fill in the gray areas for other aspects of the law of war as it relates to global terrorism should also be pursued.

My own interest these days is less the legal characterization of where things stand now than an assessment of where we should go from here; perhaps I will be doing a short book for the Hoover Institution on this question. What should counterterrorism look like in a new administration, whether Democrat or Republican? I have framed this as "counterterrorism after the war on terror." That is not because I am opposed to the war on terror or to thinking about it as a war - I do not mean this as some kind of 'September 10er', hoping that if you wish hard enough, bad things go away and you can get back to whatever it was you were doing in June 1914 or the twilight years of the 1930s. On the contrary, I have supported the Bush administration's effort to think of the struggle against terrorism as a war, to think strategically about it as a war, and to apply grand strategy rather than bandaids, to the struggle. Moreover, the war on terror is not, as has so often been wrongly asserted to the point of cliche, merely a metaphorical war - it is no more metaphorical than the Cold War was. Those who dismiss it as metaphor merely have trouble, it seems to me, understanding the difference between metaphor and strategy: in one sense, after all, all strategy is metaphor, but that does not make all strategy 'mere'. On the contrary, it is precisely strategy's metaphorical quality that makes it useful to seeing one's struggle in an analytic way.

That said, calling it a 'global war against terror' is reaching the end of its useful life, and the reason has to do very much with the fact that it has been imbued with the legal implications of war. The utility of understanding the war on terror strategically as a war, in the same broad, generations-long sense of the Cold War, seems to me as defensible as ever. The Cold War was usefully analyzed, for strategic purposes, as a war from many different directions of mobilization, some of which led to actual wars and conflicts, some of which led to other types of ideological, cultural, social, and economic efforts. But the Cold War was never legally conceived as one decades long "war" to which the laws of war applied - there were particular conflicts to which they did, such as Korea or Vietnam, but the legal paradigm was not invoked, for example, with regards to espionage, and lots of other things.

Calling this 'war' in the legal sense, therefore, in order to invoke the laws of war on a global basis, seems to me to put the cart before the horse. As a practical legal matter, there are two basic armed conflicts that rise to the level of the legal definition of armed conflict - Afghanistan and Iraq. Others might arise, obviously. But much of the other stuff does not meet that legal definition. And strategically, it makes little sense to suggest that those other activies - the Predator strike in Yemen, activities of material support for terrorism through financing and the like that might qualify under the Military Commissions Act of 2006, etc. - are actually war, either. There are many actions that should be undertaken, involving sometimes the use of force, that are not actually armed conflict. There are many other actions that do not involve the use of force, for that matter, which should also be undertaken as circumstances warrant - surveillance, spying, interference with terrorist financing mechanisms, etc. - that, of course, are not armed conflict, either.

Insisting that all this is part of a legal 'global war on terror', with all the legal implications that this implies, is not tenable under the laws of war and not particularly helpful from a strategic standpoint, either. The United States needs new law to govern these areas - new domestic law to govern areas of counterterrorism that are neither law enforcement nor armed conflict. I understand the reasons for reaching to the law of war - in order to invoke the commander in chief's full authority and discretion, to set aside what might otherwise be human rights claims in favor of the lex specialis of the law of war, etc. (One area that Sean might have considered in his article, judging by many of the comments in the Opinio Juris discussion, is the quite remarkable claim by the human rights community that the law of war is not lex specialis with respect to general human rights law, and that human rights law continues to apply even in circumstances of legal armed conflict.) Five years after 9-11, that way of going about things has run its course. My view is that the United States should legislate in these areas, and create new paradigms through new domestic law - the creation of a special counterterrorism court, for example, and the elaboration of standards for the use of force that is neither law enforcement nor armed conflict, as well as for detention and interrogation. I emphasize legislation - it has to be more than simply presidential discretion, but should create structures that will outlast any mere presidency, Democrat or Republican, as we did in the Cold War. The law of war should be taken out of it, and the military as well - the military should get out of the Guantanamo business, for example - except for what is, without elasticizing legal definitions, armed conflict.

I have written some about this in an article mostly urging that Congress needs to get involved in legislating counterterrorism, in Policy Review, here. I am also working on a couple of short articles setting out the main thesis of separating out the strategic use of war as a framing analysis from the legal fact of war in particular circumstances. I also talk about this more over at a post at Opinio Juris, here.

Prettier and handsomer

Okay, let’s also be honest and admit that in Manhattan the girls are prettier and the boys handsomer. Washington DC has many good points, but this must simply be admitted as a fact. Manhattan is winsome and DC homely.

Manhattan is the eastern Sierra Nevada of the east coast

I suppose if you put up a title like this you really should follow up with a Walt Whitman poem. But last night at around 9:00 pm, after getting out of twelve hours of difficult meetings in New York in which I had decided in the morning upon the medicinal use of coffee, I found I was completely exhausted but completely wired. This is what happens to non-coffee drinkers. So I indulged in something I haven’t had time to do in a long time in my frequent but irregular trips to the city, which was walk Broadway from 14th Street to the street our old apartment had been on, 96th Street and Riverside, and back to my hotel at 25th and 7th. There is nothing like Manhattan, even on a cold night, and nothing like Manhattan at the hour when the theatres in midtown get out. Times Square lit magnificently, all so very alive, vibrating. People don’t understand – Manhattan does go to sleep; up on the Upper West Side it was all very domestic and asleep. By the time I got back down to Chelsea, it too was asleep.

Walking in Manhattan is the finest combination of the micro - the level of street life and interesting things to see at the level of the store front, the restaurant window, the faces of people walking along – and the macro – the grand landscape of the buildings and the skyscrapers and, in the darkness, the drama of the lighting and the advertisements. Paris is more civilized, London as alive but not as dramatic at the macro-level of landscape as Manhattan. What gives Manhattan its special character is found at the macro-level, the mountain landscape created by its buildings – plunge down Broadway from Columbus Circle down toward Times Square. The skyscrapers are densely textured and enormously deep. The older buildings and the newer buildings have back-layering of their stories – they look more than anything else on the East Coast or, really, east of the Rockies, like the glaciated crags of the Sierra Nevada. Despite a spurt of pure modernism, Manhattan skyscrapers are not merely monolithic rectangular prisms stood on end. They taper back as they gain in height, often dramatically so, and the effect of narrowing the top floors relative to a building's footprint on the ground floor is to make the buildings feel as though they were leaping upwards, creating a sense of grandeur that is very much akin to the mountains of the West.

I can tell no one reading this actually believes me. I can actually sense the skepticism, dear blog reader. Certainly that was the reaction this afternoon from my dear friends David Rieff and Scott Malcomson, sitting in a coffee shop in Tribeca – well, I say, you guys are jaded New Yorkers. Try it someday, coming down Broadway from 57th Street to south of Times Square, especially at night. Then get on a plane and fly into Reno and drive south on 395, or fly into Ontario and drive north. Come along the eastern Sierra, into the Owens Valley – the deepest valley in the entire Western hemisphere, so the geology books tell me, measured by vertical drop from the tops of the Sierra Crest on one side and the entirely different but nearly as high folded sedimentary White Inyo Mountains on the other. God’s own country, and Darwin’s, too: the rest, an afterthought. Go take a look and see if the jagged Sierra peaks are not the skyscrapers of Manhattan. The same stereoscopic depth of field, the same dense texturing. How very American to take the archtypal Western natural glory and architecturally recreate it in the most urbanized place in the United States - and a place notably lacking in real mountains. And that is a Whitmanesque thought, yes?

(I wrote about this once, in a review not long after 9-11 of a wonderful book on the evocation of the skyline of Manhattan in the movies, James Sanders' Celluloid Skyline. TLS review here. The book took as its source photographic materials a very strange and wonderful archive of Manhattan photos used in Hollywood to create sets of Manhattan for the movies over decades. How peculiar that the greatest archive of architectural photographs of Manhattan is actually in California and was created for the movies, to assist in painting backdrops and building sets. The book has a long and fascinating discussion of why the first King Kong movie, in which Kong climbs the Empire State Building, with its set back upper stories, feels so much more like a real mountain than the second, in which Kong climbs the featureless prism of the World Trade Center.)

From the draft introduction, A Politics, Not a Society

Below is a bit from the introduction - still in draft and will get rewritten drastically - from my book ms., A Politics, Not a Society: The United Nations, Global Civil Society, and the Legitimacy of the International System After Global Governance. It won't look this way in the final version in the book.

***
The argument is offered in four parts following the Introduction.

Part One addresses the institutional United Nations, as a political institution. The conceptual backdrop for this is to show the limits of the UN system, the official public international system, as a purely political system, lacking the legitimacy that only a society can give. Concretely, in a series of short sections, it considers the contradictions of the UN, and considers them through an examination of the recent attempt at comprehensive and systematic UN reform. That effort was largely a failure; the reasons why demonstrate the limits of international politics. But I argue that the experience also illuminates the cul-de-sac in which the politics of the UN finds itself trapped. This is familiar territory that examines contemporary policy issues of UN reform one by one. I suggest, however, that rather than lament the inability of the international system to move forward, it might be better to accept that this cul-de-sac collectively represents what international actors actually desire from an international political system. It might be thought to represent not the failure of collective will, but instead its consummation. If not precisely the culmination of our desires, then at least the balance of them, in relatively stable and change-resistant equilibrium. We should consider the possibility, in other words, that the current impasse of the international political system is compounded because it is not so much an exercise in frustration as satisfaction – satisfaction with political stalemate insincerely protested and insincerely denied. A system in which the participants are, on the whole, satisfied with it rather than frustrated by the inability to change it – even if no one admits their satisfaction – is far harder to change, and this might explain some of the persistent inability to change.

Part Two turns to the question of legitimacy, and the special interrelationship of the institutional UN and global civil society. It assumes that there is a driver – economic globalization, although I will not seek to demonstrate this – that in some fashion provides a causal reason why this international system, now in incommodious equilibrium, might not remain so permanently. More prosaically, I assume that the demands placed upon the international system will continue to grow. Those demands require forms of action that cannot be accomplished without a legitimacy that the international system currently lacks. Part Two analyzes the form of legitimacy that would be required, a society and not merely a politics. It considers the democratic deficit of the international order and considers ways either to address the deficit, go around it, or to conclude that it cannot be remedied. Global civil society is introduced as a possible solution to the general legitimacy problem and democratic legitimacy particularly; perhaps it can serve to provide a society in which political institutions can be embedded so as to gain legitimacy. Perhaps global civil society, in the absence of a genuinely global democracy, can effectively stand in for democratic participation, as intermediary and representative of the “peoples of the world” to expanding UN institutions of global governance. Moreover, perhaps human rights, considered as an ideology, can substitute for values of democracy and participation that are hard if not impossible to achieve in a global system. However, Part Two finally turns to consider these various claims skeptically, finally concluding that global civil society cannot provide the UN with the legitimacy it seeks. Global civil society cannot turn the international political system into an international society, let alone a democratic one.

Part Three continues the search for legitimacy, which is to say, continues the attempt to find a way in which the international system can be a society, so to create the legitimacy necessary to liberal international global governance. It begins by laying out a series of ideal positions with respect to the debate between nation-state sovereignty and liberal internationalism. The question is whether any of the leading liberal internationalist positions can succeed where global civil society, considered as a mechanism for generating social legitimacy, has failed. The positions principally considered are global constitutionalism, global government networks, global administrative law, cosmopolitanism, and global bourgeois elites. They are the leading positions offered by intellectuals seeking to theorize global governance today. The conclusion concerning these positions (understood as proposed mechanisms by which to address the legitimacy deficit of the international system for purposes of expanding liberal international global governance), however, is that none of them generates the requisite legitimacy because all fail to establish a meaningful social order in which political institutions of governance can be embedded. The Part ends with a decidedly peculiar twist – by asking what might be the outcome if, contrary to the argument of Parts Two and Three, global bourgeois elites were able to create the legitimacy necessary to global governance. It looks to a historical parallel with the rise of bourgeois civil society in the eighteenth century in England and Scotland to suggest that it might mean the withdrawal of the global elites from the leadership of global peoples to collapse into mere global managerialism.

Part Four returns, finally and briefly, as a conclusion, back to the United Nations and the international political system. The conclusion of the two social Parts is that there is little or no prospect of an international society that could provide legitimacy to expanding institutions of global governance. In that case, what are the political consequences for the UN system? After global governance, what? I suggest that a return to robust multilateralism, one which conspicuously gives up the dream of global governance, nonetheless gives the UN a way forward by affirming its purely political status and the limits that they imply. I urge a system that puts democratic sovereignty at the center of the system, one which focuses on the hedgerows of competence and not on the supposedly growing tree of governance. It means not forgiving the mistakes and excesses, the corruption and incompetence, of the UN because, after all, it is supposedly indispensable and has unique legitimacy. It has neither; the General Assembly and the organs it controls will always be with us, and always a place of corruption, rent seeking, and failed cooperation games – the task should be simply confine it to what it is. Those parts of the UN that work should be subsidized – in effect a leveraged buyout of by donor countries of the specialized UN agencies, such as the WHO, which function well, and move to other mechanisms, such as the World Bank or alternative non-UN human rights organs or a caucus of democracies, to substitute for those that do not. Multilateralism need not automatically betoken a gradualist approach leading toward liberal internationalism; it can betoken instead a commitment to governance by democratic sovereigns that remain sovereign and democratic while closing the regulatory gaps between them, and addressing the profound range of global problems that address us all. By giving up any pretension that it will ever become anything so glorious as “global governance,” to focus on discrete and concrete tasks done competently, the international system might yet find a way out of today’s political impasse.

Belated happy new year

I'm afraid I've been away from blogging and pretty much everything else until this past weekend, when I finally finished up the book ms. I was working on. It will require a lot of rewriting, but I was relieved to finally get a first draft complete and sent off to the editors. That meant working straight through the holidays, I'm afraid. I never did manage to send out holiday cards or anything, although I might try to gird myself up to send out New Year's cards even late, since they are all sitting here. On the other hand, the number of papers and things that piled up while I was writing is terrifying.

The tentative title of the book, to come out from Rowman & Littlefield as part of the Hoover Studies series at year end, is A Politics, Not a Society: The United Nations, Global Civil Society, and the Legitimacy of the International System After Global Governance. My Spies report that it can't possibly fit on a book cover. I'm awfully bad at titles, anyway.

Meanwhile, I'm pleased and honored to say that Opinio Juris blog has invited me to one of its guest respondents this week while it has John Bellinger, the legal advisor to the State Department, as its guest blogger. This is a very cool concept - John has written several illuminating posts, and the responses have been very thoughtful. Eric Posner has written a couple of posts, as have others besides the regular Opinio Juris cast of stars. I'm very pleased to able to join in. Check it out at Opinio Juris.

I am still finishing the grading, I'm embarrassed to say. And classes, of course, have begun - although, I normally do my three big classes in the fall and teach a special seminar in the spring, this time around on theory of the just war. In that class we are reading at the moment a selection from Robert O'Connell's Ride of the Second Horseman, which is his account of the rise of war in human pre-history and history. It is speculative, but very thought provoking. I reviewed it for the TLS when it first came out in the mid-1990s, at SSRN, here. The class relates to the papers I have hanging over my head ... a short piece, mostly done already, on the law of proportionality jus in bello; parts of it have been posted in bits and pieces on this blog back during the Hizbollah war. And I'm also finishing a short essay offering three different readings in moral philosophy of Sherman's famous "war is hell."

Which I've also written about a bit on this blog. So when I think about the relationship between this blog and scholarship, I tend to think of it as what my philosophy teacher, Philippa Foot, used to encourage - a commonplace book for jotting down ideas, some of them just bits and pieces, others half baked, for working out at greater length. Why one would put it in a public blog is a good question. Of course, I'm just as likely to post something related to the family Christmas tree or about electric cello.

One of my new just war theory students told me I knew way too many sci-fi movies. I got a DVD for xmas of the Buffy first season - I'd never seen any of them, ever, since we don't have broadcast TV or cable in the house - don't worry, we're not deprived, my kid has untold numbers of DVDs, and given her mother and her's partiality to chick flicks, if I never hear the theme song to Friends or Gray's Anatomy, it will be too soon - anyway I had never seen Buffy. It's very cute, and my kid is hooked. As, let's be honest, are her parents.

Okay, check out the exchanges over at Opinio Juris. I have to do some more grading and then get some sleep.