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.