Speaking at SAIS with Geoff Loane, ICRC, and Ruth Wedgwood on counterterrorism and Guantanamo into the future

Ruth Wedgwood, professor at SAIS and director of its international law program, invited me to join Geoff Loane, the head of delegation of the ICRC here in DC, to speak at a program on counterterrorism, legal issues on detention, and Guantanamo. Geoff is one of my favorite people, and I always enjoy both seeing him and being on a program with him; likewise Ruth. So I was delighted to do it. CSPAN ran it, and it should open at the link here. It is dated November 12, 2007, titled SAIS discussion on Guantanamo and the conflict with Al Qaeda. It opens in realplayer.

Jeff McMahan on morality and the law of war

Jeff McMahan, Rutgers-Philosophy, has a new paper up over at University of Pennsylvania titled The Morality of War and the Law of War - h/t Larry Solum. It is a very fine paper, and I strongly recommend it to those considering Walzer and just war theory generally. I don't think I agree with all of it, but it is an excellent paper.

One point made close to the beginning serves as an excellent springboard into discussion of what Walzer calls the "moral equivalence of soldiers." It is the idea that if you shoot at them, they can shoot at you, and vice-versa - that which defines participation in the "game" of war, so to speak. But, as McMahan says, it is actually quite wrong as a moral principle. When it comes to policework, for example, what we might otherwise think of as jus ad bellum - the reason you undertake violence - makes all the difference in the world. Criminals have no equivalence to shoot back at police. Why should it be different in war? Shouldn't the cause for which you fight matter to whether you are entitled to use violence at all?

It is a problem with very practical ramifications, for example, as countries that contribute troops to international peacekeeping and peacemaking of various kinds look at the rules of war and wonder why their soldiers should be liable to getting shot at under the ordinary rules of war.

My own sense of this very good question? First, the problem is a central one in ethics of war. I discussed it once a long time ago in a very different setting, trying to describe the moral and legal differences between being a soldier and a policeman, back in the 1990s, in a review of Nicholas Shakespeare's The Dancer Upstairs (very fine film, by the way). (This was in an AJIL conference, I'll try to post it to SSRN as a pdf one of these days.)

One traditional answer is that in time of war, law is silent - and even if that is not completely true, it is enough to silence law on this particular point.

A second traditional answer in the law of war comes from a certain form of moral relativism - who is to say who is right and who is wrong under jus ad bellum? Lacking some overarching moral or political or legal authority, no one is entitled to judge. This leads to a certain form of neutrality as moral relativism - something I discuss toward the end of this academic article, and a little bit in this Wall Street Journal book review of the Swiss writer Friedrich Durrenmatt, here. My experience of staff of the ICRC over the years is that some of its people, individually, do have a strong sense of genuine moral relativism. In discussions with them about Iraq or Afghanistan, or pretty much any other war except, perhaps, Bosnia, the attitude among many staff seems to be a shrug, anyone with a position on war is by definition partisan and partial, and we at the ICRC have the superior moral position of neutrality. (The two articles above sharply attack the idea that neutrality is the higher virtue; I describe as necessary but always residual, and criticize those who always want the ICRC but never Churchill.)

As an organization, however, I would describe the ICRC's attitude as not precisely relativism with respect to jus ad bellum, but a quite sensible attitude of suspension of public disbelief as to questions of jus ad bellum in the service of another value, that represented by the humanitarian imperatives of jus in bello. This is thus a third answer to the question. But the morality and moral psychology of this suspension of (public) disbelief stand in need of much more theoretical work, and one of these days I hope to organize a Telos symposium that would take up the theory of neutrality from multiple standpoints.

Fourth is Walzer's own answer to this question - one of his answers, anyway - which is that war is a form of tyranny and coercion. War coerces the non-aggressing side to do things and act in ways it would not otherwise do, both in respect of civilians, its own people, and people on the other side. And one of the forms of coercion is the participation in war of many people who are coerced in the sense that they cannot be said to be responsible for the actions which they are required to carry out. We set limits in the laws of war on what those actions might be, but in general we do not hold them responsible for the policies of superiors because we see them in some fashion as coerced.

This does not set aside the "moral equivalence" concept that goes with the game of war, above. But, note, one of the peculiarities of Walzer's moral equivalence of soldiers is that this "game" idea of war of war is drawn from what the moral conditions of fighting would be if it somehow were uncoerced. How would freely consenting, freely participating combatants fight if it were a consented to game? As moral equivalents.

Why is this latter idea important in Walzer's overall moral theory of war? I think it can be made out best as this. Walzer's primary value is the preservation of liberty through rights, in which resistance to aggression is not just a right but, all other things equal, a moral obligation on behalf of a political community. (He says, flatly, all things equal, it is always okay to fight to resist aggression - not merely that one is entitled to do so. This is a very long way from the "from heaven" view of Catholic just war theory, in which overall good and evil must be taken into account.) War coerces; war is tyranny. But a fundamental purpose of the idea of morality in war is not merely to oppose aggression, but to do so in a way that best preserves rights and liberties. And one way to do that is to structure the acceptable rules of fighting as those which would be consented to by free participants - and they would accept the moral equivalence of soldiers. Soldiers are coerced, even when they volunteer; but they fight according to a convention as though they were free.

(I'm not sure Walzer would agree this is the argument, and I'm sure it has problems, but I do think this is the basic idea. There is some kind of linkage between liberty, tyranny, aggression, and the moral equivalence of soldiers.)

However, it is possible to go with the moral principles that McMahan says correctly are the normal operant moral principles of justice. What happens in that case? Well, it is still a justice-based one. Indeed, it can be called the "super-justice" position and it is made out most dramatically, surprisingly, by William Tecumseh Sherman, of all people.

This may seem surprising, since Sherman is most closely associated with the phrase, "war is hell," and following Walzer that is usually taken as an expression of uber-realism. But if one reads Sherman's quite remarkable memoirs, it becomes clear that Sherman, far from a realist, has a quite extraordinary sense of justice. Overdeveloped, in fact. A genuinely metaphysical sense of justice, in fact. Believing that he has jus ad bellum on his side, anything he does to the enemy is accounted as natural justice playing itself out against the original violator of the just order. He is the hammer of natural law, and at some points in the memoirs disavows any moral responsibility for what he does; it is in the nature of a reaction. It is a remarkable sense of karma, almost, in which Sherman disowns responsibility for his own actions and sees them in a sort of physics of natural justice. But it is distinctively a theory of natural law and right, although vastly different from Walzer's rights-theory and the Catholic version of natural law.

The effect is to reach what Walzer describes as 'realism' in war - but what he really means is a conduct of war that can recognize no moral limits on conduct - through the absolute belief in the jus ad bellum rightness of one's cause. Combined with the other side thinking exactly the same thing, all limits on war cease. But it is not a 'realist' result (i.e., no limits) reached on prudential or consequentialist grounds - entirely to the contrary.

(I've been working for a while on this topic on the backburner, under a tentative title of Sherman's 'War is hell': Three readings. I haven't got as far as I would have liked. There is more discussion of these issues on this blog, some of it overlapping with what is said here, under the just war, Walzer, and laws of war tags.)

ASIL discussion with Martin Scheinin, UN HRC special rapporteur on human rights & counterterrorism

The American Society of International Law (ASIL) hosted a lunch discussion today in which Martin Scheinin, the Finnish human rights scholar, and UN HRC special rapporteur on counterterrorism and human rights, presented the recent findings of his mission to the United States. I'll post up the links later on. I was the commentator, and found it to be a useful discussion - I hope he did as well. ASIL has been doing an increasing number of these under its new executive director Elizabeth Andersen, and I think they are a successful and useful format for discussion. A number of old friends were there - Edwin Williamson, Roy Gutman, Cristina Cerna, Michael Noone, numbers of people from DOS - the audience had many good questions. I'll post something later on this post about the substance; I'm about to fall over asleep.

Alan Kaufman responding to my solicitation of views on civil military relations and the JAG

Alan Kaufman, a friend, colleague, and former student of mine way back in the old days at Harvard, and nowadays a senior Navy JAG lawyer who knows way, way more than me on many of these topics, has graciously given a detailed, thoughtful response to the issues raised in my blog post on Glenn Sulmasy and John Yoo's new UCLA article on civilian-military relations. It is in the comments, but I think I will pull up some of the more expert and detailed responses into the main blog as posts so it all doesn't get too long. I'll put a new tag, "civilian-military relations" as well. (I much agree with Alan, by the way, as he says below that Professor David Kennedy's book Of Law and War is well worth reading, likewise, as I've said before on this blog, Jack Goldsmith's The Terror Presidency.) Here is Alan, with my thanks and best wishes as ever:

***
Alan G. Kaufman said...

Ken –

I appreciate your invitation to comment. I haven’t read the article yet, only your blog entry, but here are some initial impressions and musings:

I am amazed that Professors Yoo and Sulmasy make the argument that the role of JAG Corps lawyers in providing legal advice to military commanders is evidence of some sort of a breach in civil military relations. Just amazed.

All military officers, including judge advocates, take an oath to support and defend the Constitution of the United States against all enemies, foreign and domestic, and to bear true faith and allegiance to the same.

Enlisted personnel take that oath as well, and at least in the Navy, also swear to obey the orders of the officers appointed over them ( to quote: “that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.”).

That last part isn’t in the officer’s oath.

So officers - all officers, not just JAGs -- take an oath not to a person or a to a leader; but rather to the rule of law – the Constitution. Not in the sense of the “rules,” but that in the U.S. the law rules us, not a person.

But the Constitution does set out who is the Commander in Chief, and the culture is to give advice, and then to execute the decision of the Commander, even if contrary to the advice given. Unless the decision is to commit a crime – because to obey an unlawful order is itself a crime. That’s when moral dilemmas can arise . . . but I digress from where I want to go with this.

My impression is that perhaps Professor Yoo’s and Sulmasy’s arguments are part of a general sense among some that Commanders are finding themselves hamstrung by lawyers and legal advice in the headquarters. Professor Jack Goldsmith attempts to get at this in his new book, in which he suggests that law and lawyers restrain too much and too greatly the operational and command discretion of the Commander in Chief and his subordinates – that there are hamstrung by “lawfare.”

I would suggest that they do not understand too well the dynamics that occur between a judge advocate and an operational commander and his battle staff in operations. Their views do not comport with my personal experiences, nor I suspect, with the experiences of most others that have served in that role.

One Commander, a 4 star, whom I served, was fond of making the point that “Lawyers advise, and Commanders decide.” And they don’t always take the lawyers’ advice –but they do use it to understand and assess risk, to decide how much risk to accept, and often to develop strategies to mitigate risk or develop alternative courses of action –just as they do with input from across their staffs (from the intelligence officer, the logistics officer, the operations officer, the policy and strategies officer and others).

There is more, of course, too much to put into a comment on a blog, so of course all of this is a topic that is certainly worth exploring. I don’t think I can agree with Yoo and Sulmasy, either about the breach, or about the role judge advocates play.

I think Goldsmith gets at the issue in his book when he suggests that the President’s decision to go it alone in “making law” for this long war on terror has been a tactical mistake with profoundly negative strategic consequences, both for the power of the presidency, and for success in this fight. We lost legitimacy, and that was strategically unhelpful, both domestically and internationally.

I suggest interested people read Professor David Kennedy’s book, “Of Law and War,” for a different perspective (maybe even read it against Joseph Nye’s discussions of “soft power” to provoke some more thought). Kennedy makes some perceptive points about war, law, strategy and legitimacy.

Law, he suggests, is part of the “geography” in which a Commander must fight. He must understand this landscape, and if possible, shape it for the optimum strategic, tactical and operational advantage.

For example:

“ .. .law is relevant to war . . .The military, like other public and private bureaucracies today, operates in war and peace against the backdrop of innumerable local, national, and international rules regarding the use of me, the financing of arms and logistics and the deployment of force. Taken together, these laws can shape the institutional, logistical, even physical landscape on which military operations occur. Today’s military is also itself a complex bureaucracy whose managers discipline their forces and organize their operations with rules. . . .”

“…. When corporate lawyers assesses the significance of all these laws for a business client, they look not only at the formal jurisdictional validity of the rules. They also assess their likely sociological effect – their likely impact on the client’s business strategy. Who will want to regulate the transaction? Who will be able to do so? What rules will influence the transaction even absent enforcement? And they assess opportunities for the corporation to influence the rules, or to use them in new ways to achieve their strategic objective.”

“ . . . The practice of military and humanitarian law requires complex and shifting predictions about law and fact. Whose interpretation of the law will, in fact, prevail, and before what audience?”

“Law has become more than the sum of the rules; it has become a vocabulary for judgment, for action, for communication. Most importantly, law has become a mark of legitimacy –and legitimacy has become the currency of power.”

“ . . .the laws in force are not necessarily the laws that are valid, in some technical sense, but the rules that are persuasive to relevant political constituencies. Whether a norm is or is not legal is a function not of its pedigree, but of its effects. Law has a effect – is law – when it persuades and audience with political clout that something someone else did, or plans to do, to or is not legitimate. The point is no longer the validity of the distinctions, but the persuasiveness of arguments.”

Sets up some interesting debate, I would guess.

Now let me follow one last tangent. How do Commander’s view their judge advocates, how can we serve them better?

A few years ago, an “Independent Review Panel to Study the Relationships between Military Department General Counsels and Judge Advocates General of September 15, 2004, established in compliance with Section 574 of the FY 2005 Defense Authorization Act,” included the following relevant observations:

• Lawyers at Headquarters and in the field play an important role in the DoD’s combat operations, and commanders increasingly turn to their assigned legal counsel for advice on a wide range of issues.

• Since 9/11 there has been a significant increase in the number and complexity of legal issues arising in joint commands, and in the speed with which those issues must be addressed.

• It is clear from the Commanders who testified that legal advice is essential to effective combat operations – “legal advice is now part of the ‘tooth,’ not the tail.’”

• Operational commanders testified that the rule of law has never been more important and that lawyers are an integral part of their staffs and missions.

• The Commander’s lawyer, sometimes in coordination with Pentagon legal offices, is of particular value in operations occurring outside of familiar legal frameworks, such as those associated with the war on terrorism.

• Every commander who testified stressed the importance, indeed the criticality of having the SJA at his side as part of his leadership team during operations.

• The joint commander’s staff judge advocate is the focal point for all legal issues within the command. • The DoD General Counsel is responsible for providing guidance and resolution when legal issues are elevated above the Unified command level.

• The Chairman’s Legal Counsel plays a pivotal role in facilitating legal support for the joint commands, to include acting as a liaison for the DoD General Counsel.

• Civilian and military lawyers are most effective when engaged early in the process and made a part of the organization’s senior management team.

No doubt people will want to debate whether these observations are true as well as whether, if true, this is good or bad. My concern is a little different. Indeed, I would argue to the contrary of Yoo and Sulmasy, and in light of some of Kennedy’s points, the following –the problem isn’t really about lawyers in headquarters generally, it’s more about having the right, appropriately trained, experienced and educated lawyers, in the right place to b ring influence to bear – as you suggest. We don’t have that now, in my opinion. I argue as follows:

The requirement for judge advocates in joint warfighting commands and on the joint staff to give sound advice in the planning and execution of complex joint operations is extensive and the number of experienced judge advocates needed for current operations in joint missions is growing. Legal support is an integral part of the command and control capability for an operational commander. Moreover, “rule of law” is a national security capability that can produce strategic and operational effects. Operational commanders must have a high level of legal support to fully leverage these capabilities.

One aspect of effective support is having experienced and qualified officers of sufficient rank to integrate effectively with operational staffs and other stakeholders at the highest levels of leadership. While in some cases, force of personality and talent can overcome the challenges associated with a lower than appropriate rank, the fact is that rank matters in the military, and effective performance in critical positions should not be left unnecessarily subject to vagaries associated with personality.

Judge Advocates operating in support of 4 star Combatant Commanders in operational command of joint operations, and in support of the Chairman of the Joint Chiefs of Staff, who is the primary military advisor to the Secretary of Defense and to the Commander in Chief, should hold rank commensurate with these responsibilities. The Military Department Judge Advocates General, who currently hold two star rank, and have great influence through their role as legal advisors to Secretaries of the Military Departments and to the Army and Air Force Chiefs of Staff, and to the Chief of Naval Operations, are nevertheless not in the operational chain of command to which the above findings refer, and so play only an indirect advisory role in the provision of legal advice to the Chairman, Joint Chiefs of Staff, to Combatant Commanders, to the Secretary of Defense, and ultimately to the President in his capacity as Commander in Chief.

In fact, although the Military Department Judge Advocates General have played an increasingly important role in legal policy making in the matter of military tribunals or commissions for unlawful combatants detained in ongoing long war operations, in matters of direct legal support to ongoing operations since 9/11, it is Combatant Command and Joint Force Commander SJAs, and not Military Department Judge Advocates General who have been called upon to brief the President, to testify to Congress, and have been subject to media attention for advice given during the conduct of highly visible combat operations. To be most effective, the Combatant Command (COCOM) Staff Judge Advocate (SJA) and the Legal Counsel (LC) to the Chairman of the Joint Chiefs of Staff (CJCS) should, in my opinion, hold the rank of a general or flag officer.

Currently, outside of the reserve forces, there exist eight one star judge advocates in all of the military departments. None are assigned to combatant command or joint staff billets. The Navy has no judge advocates holding active duty one star rank. The SJA to the Commandant of the Marine Corps is by law a Brigadier General, and is the only Marine judge advocate holding one star rank. In some cases, one star judge advocates are assigned to service component headquarters subordinate to a Combatant Commander even though the Combatant Commander’s SJA is of lower rank. For example, Air Mobility Command, a service headquarters component subordinate to Commander Transportation Command, has a one star staff judge advocate although Commander Transportation Command has a Colonel. This reflects an arguably inappropriate misalignment of judge advocate resources with the operational chain of command.

Similarly, the Chairman of the Joint Chiefs of Staff, who is the principal military advisor to the President and Secretary of Defense, and a member of the National Security Council, has a Colonel serving as his Legal Counsel, while subordinate Army, Navy and Air Force members of the Joint Chiefs of Staff benefit from the direct support of Military Department Judge Advocates General, all of whom currently hold two star rank. The Commandant of the Marine Corps, also a member of the Joint Chiefs, and in that capacity subordinate to the Chairman, has by law a Brigadier General assigned as his SJA, as well as a Senior Executive Service civilian general counsel assigned from the Navy Department’s Office of General Counsel. All of this reflects a misallocation of legal resources at the expense of operational commanders and the operational chain of command.

Some will suggest that this misallocation occurs because neither Combatant Commanders nor the Chairman of the Joint Chiefs of Staff have requested flag or general officer legal support in their manning documents, over which they have complete control. In fact, however, quotas on numbers of flag and general officers who may be assigned to these staffs force Combatant Commanders and the Chairman into a “Hobson’s Choice” requiring the sacrifice of flag or general officer staff support in some other critical staff billet in order to make room for a one or two star SJA or LC.

Instead of passing on this irresolvable resource allocation problem to Combatant Commanders and to the Chairman, a better approach is to require by law that the SJA or LC billet be filled by at least a one star judge advocate (as has been done for the benefit of the Commandant on the Marine Corps, who has by law a Brigadier General assigned as his SJA (see Title 10 section 5046)) and then look to the Military Departments to utilize judge advocate resources more appropriately in support of operational joint commanders and the operational chain of command

.……………….There’s some grist for debate. I stand by for the clobbering I expect if anybody reads this.

AG Kaufmanwho was, and remains, your student

US military-civilian relations, Glenn Sulmasy and John Yoo's new article, and a solicitation of reader views

Glenn Sulmasy, JAG and law professor at the US Coast Guard academy, and John Yoo have published a new article in the UCLA law review, "Challenges to Civilian Control of the Military: A Rational Choice Approach to the War on Terror," 54 UCLALR 1815 (August 2007). (Thanks Andrew for the link.) (I've cleaned up some grammar and added some bits.)

Let me say at the outset that I am not concerned in this post with views on John Yoo, his work in government, the torture memos, or his views of executive power. I am not particularly concerned in this post with rational choice theories, either (I myself don't especially agree with their application in this article). It is not the theoretical account or answers Sulmasy and Yoo give - with apologies to the authors - that seems to me important here.

This article should perhaps be read as the public opening of a debate, within the legal academy and I hope more broadly, over a fissure (fissures, more exactly) that might be thought to exist under the surface of civilian-military relations. I think that I, at least, have been informally seeing some indication of this since even before 9-11 [added: ;others might well think, as Alan Kaufman does in the comments, that this is not really the case and even perhaps, KA speaking again and not Alan, that John is extrapolating too much from his personal experience in the Bush administration being opposed by military lawyers]. Still, I will say that in my work as a professor with a number of students going into the JAG, but even before, as a NGO person who had worked extensively with (and frequently against) many US military lawyers both junior and senior on various law of war issues such as landmines, etc., over several decades, I long had the strong but anecdotal impression that there were odd gaps between JAG culture and the rest of US military culture, and various strains and strands within JAG culture itself. I did not pay it much mind in earlier years, figuring this had always been true in the military. I also didn't pretend to understand it within military culture.

But 9-11 caused me to pay much closer attention, as various controversies in the war on terror brought these and new strains much closer to the surface. Not ever having been in the military or JAG, I have never had confidence in my ability to analyze these relationships. I don't now. but I do think now that they are of sufficient public importance that they need to be taken up by the general intellectual community. Perhaps I am wrong about their importance and overestimate the actual controversies and fissures, and perhaps John is simply extrapolating too much from his own experience; I solicit your views on this below. But first let me make a few more not-very-well organized comments and offer two excerpts from the article.

I always thought, on the one hand, that the professional military lawyers were substantively right in their initial conclusion, contrary to Gonzales' White House counsel's office, that the Geneva Conventions applied. I don't think the administration's civilian lawyers, in the first flush after 9-11, understood that their professional military lawyers were not saying that captured Al Qaeda would be POWs, but instead merely that if the administration treated the attack as war, then the overall regime of the laws of war of course applied - with the result that under GC3, Al Qaeda would turn out to be unprivileged belligerents or unlawful combatants. Some highly experienced law of war experts inside the military would eventually conclude (following the "gap" argument about GC3 and GC4) that they should be treated instead as spies and saboteurs under GC4, but no one so far as I know suggested that they would be POWs, and the White House lawyers did not have the background knowledge really to understand that (the role of David Addington in this debate is unknown to me, but I do wonder). (Possibly I am wrong about that and there were professional laws of war lawyers in DOD arguing that they were POWs who could then be tried - so far as I know, however, although perhaps some later reached that conclusion as they became unhappy with what military commissions gradually turned out to be, it was not the initial advice from DOD lawyers.)

My impression, in any case, of the White House counsel's office was that rather than calling the professionals at DOD, its lawyers started flipping through the Geneva Conventions for the first time in their professional careers. I know some of these lawyers and have great respect for them, but I think they reacted quite wrongly in thinking that they could quickly come up with the necessary expertise and sound practical judgment. I was appalled that senior Pentagon lawyers were so thoroughly sidelined by the adminstration. The administration and the country paid the price for that - and still are.

On the other hand, I have been surprised and dismayed by the public vehemence with which some JAGs have fought the very idea of military commissions - highly invested, as Jack Goldsmith observes in his new book in the arena to which they are accustomed as criminal lawyers, the Uniform Code of Military Justice, and seeking and finding support among NGOs, military law groups, and other places outside the structure of government. I have been particularly astonished, although perhaps I should not be, at the extent to which - in my anecdotal experience, to be sure - some JAG defense lawyers have bonded with the various and often times altogether radical civilian and NGO defense groups for Guantanamo detainees. And let's be blunt; there are also post-JAG career issues here, too - these all merge with strongly held, sincerely held moral views about the rule of law and how trials should proceed that can sometimes condition one's fundamental identity, as a lawyer and a JAG.

Maybe that's a good thing, not a bad thing - I am not here judging it, because I do not have a clear sense of how a military lawyer's professional roles interact in every way. But I do think it bears talking about it if people think it is something that is occurring in the interaction of the JAG and the war on terror. Maybe it isn't, not really, or maybe it has long been an accepted part of the professional role of JAG officers as lawyers - still, speaking as an outsider, the current alliances, interactions, and public exposure are all really, really different from anything I ever saw in my interactions with the JAG working in NGOs. I have likewise been struck by how much certain JAG defense lawyers seemed to have internalized the use of media as a defense tool, even within an altogether different military system, and even in ways that deliberately politicize issues, to the point of making them quite nakedly anti-administration and OJ-defense-team-like.

I realize and acknowledge this represents these lawyers' deep moral concern that the Bush administration's approach to these cases was simply and unacceptably wrong. I respect that conviction, but am not entirely sure (and am not persuaded that this article presents the right answer; I have doubts that rational choice theory offers the right answer) how a military officer as well as officer of the court and defense counsel should respond in such circumstances. [Added:] One thing I am certain of, though - while being quite unclear about professional responsibility and military lawyering generally - is that criticism implicit and explicit in the article about scholarly writings by military lawyers is wrong; I thought, for example, that Charles Dunlap's 1990s article about the politicization of the officer corps leading to a coup in the form of a fictitious letter was both an outstanding and unusual piece of scholarship, and an entirely appropriate way in which an intelligent, professional, thinking officer corps and its lawyers need to discuss in a scholarly way rising issues, including those that go to professional formation and values.

It was interesting to me, too, that an article of mine, from not long after 9-11, was quoted back to me by two JAGs (it can be downloaded free here; I think it was used in a couple of JAG classes after it first came out, which is how they had seen it). My article argued that, in my experience as an NGO person debating with US military lawyers about a wide variety of human rights and law of war matters over a couple of decades, the peculiarity of the US military lawyer was a preference to treat such matters not as a matter of moral vision, but of "merely" technical lawyering, apolitical technical legal matters, and negotiation of the the US national security interest. I said in that piece that US military lawyers, in my personal experience with them, in fact had quite a burning moral vision of the laws of war and their meaning, and that US interests would be furthered if they were willing to argue more directly from moral propositions just as the NGOs do. It was pointed out to me that, in fact, JAG officers are far more willing to do that today than when I wrote that article, or at least in the pre-9-11 years - but as against the civilian authorities in their own government.

[Added:] Interestingly, at least to me, one of the core observations of that article about the interaction of US military lawyers with groups such as NGOs was the engaging, downright endearing desire of US military lawyers to be liked by the NGO people - they didn't want to think of themselves as the bad guys defending bad stuff; they thought of themselves as good guys just like the NGOs and wanted to go hang out with them and find common grounds of goodness and idealism. And in the unhappiness in some quarters over miltiary commissions and Guantanamo, it appears they have. It wasn't what I was thinking when I wrote that piece, and I'm actually surprised that Sulmasy and Yoo didn't cite it, but there it is.

Part of this, of course, locks into the whole question of citizens and soldiers, one's rights to expression even when one is a soldier. There is a tendency - I share it - to sympathize with the soldier or officer or JAG who feels morally compelled to speak out. On the other hand, the very concept of democratic civilian control over the military requires that military not operate as an independent branch of government, even on things it regards as deep moral propositions, but treat itself as a pure instrument of civilian will. That has never been true of the generals who control grand strategy, of course, and can't be - but it has never been thought to extend down to individual JAGs. Yet, if it comes to individual techniques, such as interrogation or detention techniques, that an individual JAG or, frankly, any other soldier finds fundamentally abhorrent and unconscionable, in our system we both expect the concern to be raised - and we expect it somehow to be resolved, for or against, within what is ultimately a structure of civilian authority.

So, on the one hand, a firm belief that even an instrumentality has to have some independent, internalized limits even as against those who direct it. On the other hand - well, I have spent a lot of time in Latin American military dictatorships over the past thirty years, and in every case, their justification for doing what they did was predicated on the view that the military had obligations to the "nation" that were greater than any particular set of civilian leaders. That enabled them to justify coups against any particular civilian administration in the name of some higher national conception. The UCLA article appears to suggest - the language is careful on that point - that some senior officersr, and some miltary lawyers - indeed, seemingly particularly military lawyers - view any administration in theory, but the Bush administration in particular, as merely temporary holders of office, whereas the military's allegiance is to something more eternal, even if it is the constitution as independently construed by the officer corps.

If that were really true, of course, it would come far too close to the "higher concept of the nation" that was relied upon by Latin American military dictators from Pinochet to Guatemala's successive military rulers. Or else Seven Days in May, which by happenstance I watched not long ago. But it was also hard to see that the article presented evidence of that - after all, it is true of all civil servants, always, that they see administrations come and administrations go; there are many miles between that and a view that the military serves some higher extra-administration mission. That seems to me the most incendiary implication of Sulmasy and Yoo's article, but one in which it is an enormous leap from one to the other, unjustified on its own.

Please be clear about this - I am not characterizing JAGs as a whole, of course, and am not even trying to say what I think the professional roles and their interactions should be, but am simply reflecting on my experience in being around different groups on various occasions and in various ways in light of this new article. My experiences are anecdotal, from someone outside the military. And my respect for the JAG and the way in which the rule of law has become an important part of military culture is enormous. I am not even necessarily criticizing these increased signs of willingness, if they are real, to dispute civilian authorities on moral grounds. I don't pretend to have answers to the various questions raised in these discussions - I am not sure exactly what I think or to what extent it raises matters of concern. But I am initially convinced that it is a public discussion that needs to be had. It is a hard one, because like all such questions, it by implication can easily be read as raising questions about loyalty, obedience, fidelity, honor - all deeply personal as well as professional, questions of personal and professional identity. (It is partly because of the psychological issues involved that I doubt very much that rational choice theory can provide the answers. ) [Added: I also think that Alan Kaufman is right in suggesting that Jack Goldsmith's discussion on this in The Terror Presidency is much more nuanced and captures the genuine controversy better, but I will leave that aside here.]

It is hard to know exactly what forum in which to have such discussions, if they should be had at all, if there is any reason to have them. Within the JAG schools, for example - yes, in one way, but I don't think it's sufficient. There are important questions here that need to be had in dialogue with larger intellectual and political communities. I'd be happy to try and create a setting for something like that discussion at my school, or perhaps through the new Hoover task force on national security and civil liberties. There are many players who already have articulated points of view - the NGOs, civil liberties organizations, military law groups, etc. Maybe it is something that the Lieber Society - the law of war branch of the American Society of International Law - might take up. And again, let me be clear - this is not an attack on the integrity of the JAG, either individually or institutionally, far from it, but it is a question as to whether there are issues of professional identity that need to be openly discussed. I have very mixed feelings about these things, and am frankly not sure what I think, except that I do think the questions need to be asked.

(This inchoate sense that the war on terror as a legal proposition has strained the JAG, in its fundamental identity, is one reason I have pressed for a civilianization of the detention and trial process - a national security court and a civilian regime of administrative detention, despite the many uncertainties and questions that such a regime raises. It is time to get the military out of the detention business and out of the military commissions business, and to bring their activities in these things back to traditional battlefields, battlefields as traditionally defined in the law of war, not the whole world as (legal) battlespace as the war on terror regime asserts. That means, however, as Jack Goldsmith, Ben Wittes, me, and many others by now - Glenn Sulmasy included - have urged, that Congress has to bestir itself and legislate the legal mechanisms, not only this administrative detention proposal, but additionally the legal structures to govern that part of counterterrorism that consists of gathering intelligence and acting on it in ways that are neither law enforcement nor war in the narrow legal sense.)

I know a great many JAG and former JAG, many of them highly distinguished lawyers in and out of uniform, some of whom have gone into academia and elsewhere (and one salutary side-effect of the tragedy of 9-11 is the fact that JAG officers, for the first time in my experience in academia, are able to get serious academic positions in law schools where they bring a wealth of experience not available any other way to these academic subjects). I'm not military or former military, I'm a law of war expert via NGOs, and I would be highly interested in getting reactions to this article and to the general issues I've raised here from those who are or have been.

Is this in fact a tempest in a teapot and not something of any long term concern? Are there real issues here, or am I making more out of it than I should? Is this something that merits a public discussion, or it is something best left to the JAG schools, as part of the discussion of professional roles as military and lawyers? This blog not being a shy place, I would be very interested to hear from people like Geoff Corn, Bobby Chesney, Mike Newton, Alan Kaufman, and people from the Lieber Society. And nonmilitary people as well, from NGOs and academia, from DOS and DOD, and from people in or once in the Bush administration - Matt Waxman and Philip Bobbitt and Jack Goldsmith come to mind. I am trying in part to gauge whether this is an issue of sufficient salience that I should be looking to try and promote a larger discussion. Or whether this is getting all excited over something that isn't really an issue, in an article that is making strong claims it doesn't really back up. Perhaps my imagination is merely inflamed from having watched Seven Days in May a couple of months back, all Burt Lancaster and Kirk Douglas. I solicit your views. I'd rather raise it in a blog post in order to see whether it is worth having a more formal discussion, or whether it warrants an article, or whether I'm getting over-excited. Send me an email if you'd rather not post something publicly.

I have excerpted two chunks from the article, below, one from the introduction on the large issue of military-civilian relations, and the second from near the end, specifically on the JAG.

Recent events in the war in Iraq and in the War on Terror have raised the salience of civilian-military relations. The war in Iraq has brought forth a great deal of friction between civilian Department of Defense officials and military officers. For example, dozens of retired military officers, including some recently returned from Iraq, called for the resignation of Secretary of *1819 Defense Donald Rumsfeld on the ground that he had mismanaged the war. [FN13] The criticism from the retired officers echoed not-for-attribution comments by active duty officers, which had extended to criticism of Secretary Rumsfeld's heavy hand in planning before the invasion. [FN14] Perhaps the most publicized flashpoint occurred when Army Chief of Staff, General Eric Shinseki, testified before Congress that an insufficient number of troops were being sent to occupy Iraq. [FN15] Senior Department of Defense officials quickly repudiated Shinseki's comments. [FN16] Our system perhaps has not witnessed a similar level of public conflict between civilians and military officers since President Truman's well-known and controversial firing of General Douglas MacArthur during the Korean War.

Civilians and military officers have also struggled over legal policy in the War on Terror. In February 2002, after extensive debate between civilian and military leaders, President Bush decided that the Geneva Conventions did not apply to armed conflict with al Qaeda, and that the United States would not extend prisoner of war (POW) status to al Qaeda's Taliban allies. [FN17] According to media reports, senior officers of the Judge Advocates General's (JAG) Corps opposed the decision and turned to human rights groups to challenge the decision in court. [FN18] According to press reports, JAGs argued that the decision violated international law, and they implicitly believed that the president did not have the authority to interpret and apply international law on behalf of the nation's government and military.

A second event of friction occurred in the fall of 2006 during Congress's consideration of the Military Commissions Act of 2006. [FN19] In November 2001, President Bush issued an order establishing special military courts for the trial of terrorist suspects accused of committing *1820 war crimes. [FN20] Some JAG officers had opposed this option, arguing that the existing court-martial system under the Uniform Code of Military Justice (UCMJ) ought to be used instead. [FN21] Civilian leaders in the Pentagon went ahead with the design of the military commissions, but proceedings never began due to habeas corpus litigation challenging their legality. In Hamdan v. Rumsfeld, [FN22] the U.S. Supreme Court held that the commissions violated Common Article 3 of the Geneva Conventions, [FN23] which it concluded Congress had incorporated into the rules for military commissions when it enacted the UCMJ in 1950. [FN24]
In response, the Bush Administration sought legislation from Congress to place the military commissions on firmer ground and to overrule aspects of Hamdan. During congressional hearings on the legislation, the head JAGs for the U.S. Marines and the U.S. Army claimed that military commission rules that withheld classified information from the defendant (but not defense counsel) violated “the judicial guarantees which are recognized as indispensable by civilized peoples,” as called for by Common Article 3. [FN25] Brigadier General James Walker, the Marines' top uniformed lawyer, said “no civilized country should deny a defendant the right to see the evidence against him, and that the United States ‘should not be the first.”’ [FN26] This directly conflicted with the position of the civilians in the Bush Administration, who concluded that the legislation was consistent with the United States' international obligations. [FN27] In the same hearings, the *1821 representative of the U.S. Department of Justice argued that the proposal to allow the defense counsel but not the defendant to see classified information “properly administered by the military judge, would strike the appropriate balance between safeguarding our Nation's secrets and ensuring a fair trial of the accused.” [FN28] In the same written statement, the representative declared: “In the midst of the current conflict, we simply cannot consider sharing with captured terrorists the highly sensitive intelligence that may be relevant to military-commission prosecutions.” [FN29]

Some criticize these actions for undermining the principle of civilian control of the military. Others defend them as an example of military experts preventing civilians from making serious strategic or tactical mistakes. Whatever their intention or effect, military criticism or even resistance to civilian policy decisions is not restricted only to the war in Iraq or the War on Terror. Rather, such criticism is the latest in a series of major conflicts between civilian and military leaders since the end of the Cold War.

Even before the September 11 attacks, observers had concluded that civilian-military relations had reached a “crisis.” [FN30] During the early Clinton years, one prominent military historian argued that General Colin Powell had resisted civilian leaders--regarding the use of force in Bosnia--in a manner reminiscent of General George McClellan's hesitancy to commit to battle during the Civil War. [FN31] Writing in 1994, Richard Kohn, one of the nation's leading military historians, characterized the Armed Forces during the late George H.W. Bush and early Clinton Administrations as “out of control.” [FN32] By 2002, Kohn had concluded that “civilian control of the military has weakened in the United States and is threatened today.” [FN33] According to Kohn, “the American military has grown in influence to the point of being able to impose its own perspective on many policies and decisions.” [FN34] Summing up the post-Cold War years, Kohn detected “no conspiracy but repeated efforts on the part of the armed forces to frustrate or evade civilian authority when that opposition seems likely to preclude outcomes *1822 the military dislikes.” [FN35] Kohn believed that civilian-military relations in that period were as poor as in any other period in American history. [FN36] In 1992, then-Colonel Charles Dunlap (now a brigadier general and deputy JAG of the U.S. Air Force), even wrote an essay in the form of a fictitious letter from the future describing a military coup by the year 2012 because civilian leaders were calling on the military to perform essentially civilian tasks, such as stopping drug trafficking or feeding the poor, which would lead to a politicized officer corps. [FN37]

What events produced this crisis? The conventional explanation is that President Clinton entered office with a military already distrustful of him, because of questions raised during the 1992 campaign about whether he had dodged the Vietnam War draft. Matters only became worse when Clinton decided, as one of his first acts as president, to reverse the military's ban on openly gay personnel. The Joint Chiefs of Staff immediately met with President Clinton to express their strong opposition to the decision, which was followed by an extensive congressional lobbying effort by the military in support of a statutory codification of the ban, coordination with retired officers who could publicly criticize President Clinton's proposal, and leaks to the press of mass resignations should the ban be lifted. [FN38] Within a few months, President Clinton announced the existing “Don't Ask, Don't Tell” policy, which amounted to a significant change from the administration's original policy.

While the controversy over gays in the military held high political salience, it was only one example of resistance by the military after the end of the Cold War. General Colin Powell, for example, gave an on-the-record interview in the New York Times opposing military intervention in Bosnia while serving as chairman of the Joint Chiefs of Staff; meanwhile, civilians in Congress, the first Bush Administration, and the 1992 presidential campaigns were still debating policy options. [FN39] General Powell even published an editorial in his own name opposing any Bosnian intervention. [FN40] Military historians suggest that the open opposition of General Powell and the military delayed U.S. intervention in the Balkans by four years. [FN41] Military leaders sought to prevent the Clinton Administration *1823 from sending a large military force to intervene in Haiti, and blamed civilians for refusing to send adequate armor and resources for the mission in Somalia. Opposition from the military and the Pentagon prevailed over President Clinton's desire to support the treaty banning land mines and significantly impeded his signature of the treaty creating the International Criminal Court-- a decision the Bush Administration soon reversed with the broad backing of the uniformed military. [FN42]

During this period, the struggle between civilians and the military continued over less well-known issues as well. Military officers apparently undermined the administration of Secretary of Defense Les Aspin, leading to his resignation, and also forced his nominated successor, Admiral Bobby Ray Inman, to withdraw. Controversies accompanied the retirement of several four-star flag officers, and there seemed to be constant infighting over issues such as sexual harassment policies and women in combat. [FN43] No serious change in organizational force structure occurred, even though the primary enemy for which the American military had prepared for more than half a century, the Soviet Union, had disintegrated. As Kohn observed, “the uniformed leadership-- each service chief, regional or functional commander, sometimes even division, task force, or wing commanders--possessed the political weight to veto any significant change in the nation's fundamental security structure.” [FN44] Opposition to efforts to rethink policy in response to the end of the Cold War and developments in military technology continued into the Bush Administration, which experienced stiff resistance before the September 11 attacks to the “revolution in military affairs” promoted by Secretary Rumsfeld. [FN45]

One could say, of course, that none of these examples demonstrates that civilian control of the military in the United States is under any real threat. If the sole purpose of civilian control of the military is to prevent a coup, then the principle has not been seriously challenged. But civilian control of the military encompasses more than just formal control over the instruments of government. It must also be measured by the ability of the military to succeed in imposing its preferred policy outcomes against the wishes of civilian leaders to the contrary.

This was the heart of General MacArthur's challenge to President Truman's leadership, widely considered the most serious civilian-military *1824 conflict, at least since the Civil War. MacArthur posed no threat of a military takeover of the formal mechanisms of government. Rather, MacArthur publicly questioned the civilian decision, after Communist China's intervention in the winter of 1950, to pursue a limited strategy in the Korean War instead of outright victory. MacArthur claimed that he was not required to take orders from the president as commander-in-chief, and that he owed a greater obligation to a higher constitutional authority. After he had been relieved by President Truman, General MacArthur returned to the United States to cheering crowds and addressed a joint session of Congress. In a speech to the Massachusetts legislature, MacArthur said: “I find in existence a new and heretofore unknown and dangerous concept that the members of our Armed Forces owe primary allegiance or loyalty to those who temporarily exercise the authority of the Executive Branch of Government rather than to the country and its Constitution which they are sworn to defend.” [FN46] While certainly not as public or as brusque, some members of the uniformed military appear to share a similar attitude that civilian leaders are, at best, temporary office holders to be outmaneuvered or outlasted.

One of the most important sections of this article addresses the extraordinarily sensitive question of the role of JAGs in the current war on terror debates. It is exceptionally difficult for anyone, inside the military or out, to raise at this point because it both invokes and triggers many debates over military culture. But this is a conversation that needs to be had within the JAG, within the military as a whole, and among civilian and military leaders. I have very considerable admiration for the article's willingness to raise an issue that can have such profound repercussions:

... In this ambiguous arena, JAGs are immersed in more than just the straightforward application of widely accepted legal rules on the use of force. Rather, the United States is engaged in adapting the laws of war to this new type of enemy, with significant moral, policy, and political considerations. *1844 These questions involve the status of detainees, the applicability of the Geneva Conventions, the legality of targeting leaders of al Qaeda, and determining proportionality and distinction when terrorists conceal themselves within civilian populations. [FN123] This new application of the laws of war has placed the JAG Corps in the middle of questions that had once been the domain of the elected civilian leadership or combat commanders.

In some instances, some senior JAGs have preferences that are profoundly different than those held by the civilian leadership. There are a number of potential explanations. First, JAGs have been influenced in part by nongovernmental organizations in the human rights arena. [FN124] These organizations sharply criticize the U.S. government and military operations conducted in the War on Terror and characterize U.S. strategic and tactical decisions as violating moral as well as legal principles. Second, JAGs are responsive to the American legal academy, which also continues to criticize many operations in the War on Terror as violations of both U.S. constitutional law and international norms. Third, JAGs cannot help but see that the War on Terror has produced deep divisions among political parties and groups in civilian society.

The growth of the role of JAGs has been remarkable in the past thirty years, even more so in the past decade. [FN125] It has essentially gone unregulated. Legal ambiguities in the wars of the twenty-first century will undoubtedly require a continued and enhanced presence of JAGs in military operations. However, unregulated deference to the JAGs has limited some combat operations, and will continue to do so. [FN126] Civilian leaders should remain aware that the growth in JAG influence can have a detrimental impact on the nation's ability to win wars. Leaders have allowed a regime to arise in which the JAGs advise, within the confines of the law, the best means of achieving military objectives. American combat officers must now seek out JAGs for rulings on the incorporation of the law of armed conflict into their ongoing operations. It is no coincidence that this unprecedented role for JAGs developed at the *1845 same time that severe problems in civilian control over the military occurred in the wake of the Cold War.

JAGs, almost as surprised as others with their newfound prominence, must be mindful of the effects their advice can have on effective combat operations. [FN127] Their enthusiasm in providing advice on operational matters will be viewed by some as challenges to civilian control of the Armed Forces. Policy concerns regarding operations or political decisions regarding the conduct of war cannot be officially challenged by JAGs. If actions to resist civilian policy choices in the War on Terror continue, our rational model approach predicts a response by combat officers and civilian entities, ultimately resulting in a diminished role for JAGs.

As I said, I solicit your views.

Expert meeting on detention policy in counterterrorism

I'm in Cleveland, at Case Western, for a meeting organized by the ICRC and the law school here on detention and counterterrorism policy. I'm delighted to be here - my goodness, Case Western is a beautiful campus, with lovely buildings old and new. The law school is in a handsome new building that just shouts, "Successful capital campaign!" It was nice of the ICRC to invite me to a meeting on a topic as important as this.

[A couple of paragraphs disappeared here, not sure why. I'll reconstruct them and repost them tomorrow. Weird.]

That's the substantive debate. The procedural debate is how to force Congress to take ownership of counterterrorism policy. As I've said repeatedly, it has no reason to do so, as long as the Addington Administration, if I can put it that way, persists in takng all the heat off it by insisting that Congress has no role. The administration bears all responsibility, Congress none, and Congress is therefore free to kibbitz and complain and snipe to its heart's content, knowing that it need make no affirmative decisions for which it, or the individual members, can be held responsible. It's a mad policy by the administration. I've been reading Jack Goldsmith's wonderful new book, The Terror Presidency, and it is clear that these issues, which people like me or Ben Wittes were writing about in the last couple of years, were central to Jack's thinking back when he was still at OLC - but he couldn't say anything. I heartily recommend Jack's book - it will be one of the few permanent volumes to come out of an insider in the Bush administration.

I also recommend highly Ben Wittes' Policy Review essay (I'll put the link in later) on the issue of finding the sensible middle ground in counterterrorism policy. It's a superb essay, the one most vividly to express the problem of those of us in the middle who worry both about the rule of law and protection of the United States - sitting, as Ben says, on the top of a hill with a slippery slope that runs in two directions - to a police state or to big bombs going off in American cities. The pure civil libertarians and human rights activists have decided that there's only one slippery slope to worry about; the pure national security types, in the Republic of Addington, have decided that there's also only one slippery slope to worry about, but it's not the same one as that of the civil libertarians. Then there are those of us, moral realists who hold to plural liberal values, who worry about them both.

That's the lay of the moral land, and the problem of finding one's way, not precisely to the middle ground, but to a ground that holds and respects both values simultaneously. That latter is not the same as finding middle ground; it is finding simultaneous ground.

Manuel Noriega extradition to France

The AP has a story today on the holding by a US district court judge that former Panamanian dictator Manuel Noriega can be extradited to France to face charges there. Here. The judge, senior judge William Hoeveler, was also the judge who originally presided in Noriega's trial in Miami back after Noriega's capture following the US invasion of Panama; Noriega was convicted in 1992.

As it happens, I was monitoring Panama for Human Rights Watch at the time of the invasion, and went there with then Americas Watch director Juan Mendez; we produced a long report on the laws of war in the invasion and aftermath. Later on I wrote Human Rights Watch's amicus brief in the Noriega trial, submitted to Judge Hoeveler; we argued that Noriega was entitled to POW status, as I recall. The US government, which had originally taken the position that he would be entitled to POW status, changed its mind and submitted a new letter from DOS saying that he was not entitled to POW protection as head of state, despite his uniformed status and rank.

Judge Hoeveler issued a ruling - I do not have it in front of me, so it is possible I misrecall precisely how it came out, but as I recall it - in which he took the position that, as a District Court judge, he believed that on the merits Noriega was entitled to POW protection, but that as a matter of the court's jurisdiction, he lacked the power to make the government follow that order. In the event, the US government agreed in negotiations that it would treat Noriega as though he were a POW, with respect to the conditions of his confinement, without conceding that it had to treat him that way as a matter of either international or domestic law, and without conceding anything concerning other aspects of his treatment, including extradition. There was a sense, again as I recall, that the basis of Judge Hoeveler's legal ruling did not need to be tested by either side, in either direction, given the government's positition. And there it rested.

Now, Judge Hoeveler has ruled that his original ruling was not intended to allow claims of POW status to act as a shield against trial for serious crimes, whether in the US or elsewhere. If you go back to the original judgment - which took very serious account of HRW's amicus brief - I believe the judge is correctly stating his own original position. Whether it was entirely legally consistent or not, the original judgment was plainly seeking to accommodate concerns over POW status while not allowing that to be used as a means of avoiding a trial in regular US courts. (Part of this was motivated by the fact, however, that Noriega's lawyers at the time were very worried that Judge Hoeveler might actually push them into a military court martial, in which under the UCMJ, Noriega might fare worse rather than better than in a US district court trial - they wanted POW benefits for terms of confinement, but not the risk of a military trial.)

Hence Judge Hoeveler, as I understand the record then and now, has not changed his mind at all, but is accurately stating the position he took in 1991; it may not be a position entirely consistent with either domestic law or international law, having split the difference in various ways, but what he says to do is consistent with what he said then. Nor does it represent a change of position on the part of the USG which, so far as I understood in both the Bush I and Clinton administrations, viewed arrangements as an accommodation by the US, not a requirement of international law, and limited to the conditions of confinement and not further.

***
That said, I have changed my own view regarding head of state who happens to wear a uniform or who is by law the commander in chief. I do not believe, contrary to what I wrote in the HRW amicus brief, that there is an obligation to treat political leaders, who are as a matter of evident fact political leaders, as POWs simply because they happen to bear military rank. The US took a different position with respect to Saddam, and I think it was not legally required under GCIII, nor was it a wise precedent.

Wesley Clark and Kal Raustiala in the NYT on terrorists as criminals, not combatants

(Update, August 25, 2007. I have pulled up Alan Kaufman's very thoughtful response from the comments into the full post, at the end, and I highly recommend it. Alan, thanks!)

Wesley Clark and UCLA international law professor Kal Raustiala have an op-ed in today's New York Times, August 8, 2007, on why terrorists should be treated as criminals, not combatants. International Law Reporter blog has it, here.

Well. Kal Raustiala is one of the brightest international law scholars around; I have enormous respect for him and it troubles me to have to disagree, but this piece does not move me. It sets up a false dichotomy between 'criminals' and 'combatants', and then argues that the Bush administration has treated terrorists as combatants whereas it should treat them as criminals. This is an argument that has been going on since approximately September 12, 2001 - it is more than a bit of a dinosaur, I would have thought - and it surprises me that anyone would still be wanting to have it in these terms. More to the point - you can argue for pretty much all of the reforms of the system that the op-ed calls for (some of the important ones of which I in fact support) without having to go back and make claims about the fundamental wrongness of the administration's legal judgments about the applicability of the laws of war.

The cutting edge of discussion about counterterrorism policy today is, for example, Jack Goldsmith and Neal Katyal's joint call for a national security court, or Benjamin Wittes' call to have Congress legislate a comprehensive system, or my call with Elisa Massimino to civilianize the system - that's where the discussion is at, so far as I can tell, and it is noteworthy for being fundamentally forward-looking, rather than backward-looking. It's not looking to score points about the past five years, but to try and figure out how to go forward now, under current conditions. There are plenty of profound, sharp, and even bitter disagreements about that, even among the people I have just named, but it is a good deal more concerned with a new administration that with the last one.

***
Combatants and criminals, a note.

The precise legal category for Al Qaeda terrorists is "unprivileged belligerent," by reason of the fact that the group of which they are a part - and note, under the Third Geneva Convention, it is the behavior of the group, not merely the individual, that determines status - systemtically violates the laws of war and so neither it nor its individual members qualify for the POW protections of the Third Geneva Convention. That does not mean these individuals do not have a status, nor does it mean they cannot also be criminals or suspected criminals; they have a status, which is unlawful combatant. A combatant is someone who takes active or direct part in hostilities, and an unlawful or unprivileged combatant is one who takes active or direct part in hostilities but has no legal right to do so, in the case of Al Qaeda by reason of its systematic violation of the laws of war.

The consequence is that Al Qaeda terrorists are both combatants and criminals. There are plenty of issues to debate here, but what is so hard about this? Why insist, against the accepted categories of the laws of war, that it is either/or, when in fact the answer can sometimes be both? (Although my views have shifted on whether we should continue to use a war paradigm as the legal touchstone since 9-11, my basic view on the distinction of "criminals" and "enemies," stated in this immediate post 9-11 article still holds.) Why should anyone accept the op-ed's claim that to treat terrorists as combatants somehow accords them honor as though soldiers? I am not aware of people very much thinking that these days - perhaps I am mistaken, who knows? - and it does not follow as soon as one accepts, as the law does, that there are combatants who are also criminal, criminal in the very nature of their combatancy, unlawful belligerents, but that they still somehow have some part of a soldier's honor because they are an unlawful combatant. It seems to me a false dichtomy leading to a straw man.

The reason, it appears from the rest of the op-ed, is that Clark and Raustiala are concerned about the wide powers available to the executive to determine that someone is an enemy combatant and unprivileged belligerent, on the executive's sole say-so, to hold the person however long it likes without legal recourse to the coursts, and on no charges or criminal trial or conviction. Yes, these are all enormous issues, partly of international law and partly of US domestic law. But addressing those questions does not require moving to the position that combatant and criminal are either/or. The op-ed's complaint might be said to be that the Bush administration seems to believe that the president having designated someone as an enemy combatant settles all legal questions - of course it doesn't, but overreaching does not render the distinction itself legally invalid. The vital constitutional and human rights question of whether, for example, a US citizen in some US city - perhaps part of an Al Qaeda sleeper cell or perhaps not - can be treated solely on the designation of the president as an enemy combatant has virtually nothing to do with the question of whether terrorists should be treated as combatants or criminals.

To be perfectly blunt, at every meeting I have attended since 2001 - perhaps half a dozen - in which Clark spoke about terrorism, he made his centerpiece this point that terrorists are not soldiers and we shouldn't treat them that way; he does not appear to have thought about it any further than that since then. Of course terrorists are not soldiers - meaning by that the armed forces of a state under the Third Geneva Convention. But they might well fall into the category of combatant, if they "take direct [or active] part in hostilities." The question then becomes, what kind of combatant - a legal combatant, or an illegal one, an unprivileged belligerent, under longstanding categories of the laws of war? And what are the legal consequences if the answer turns out to be"illegal combatant" or "unlawful belligerent"? That question is not answered by saying 'terrorists are not soldiers', not even close.

The USS Cole attack, raised an example in the op-ed as an example of the incoherency into which the designation of combatant leads us, indeed presents important questions about how terrorism is legally defined and about who and what is a terrorist, on the basis of the targets they attack. But these important questions are not the ones raised in the op-ed. The op-ed suggests - in my view a straw man argument - that because the administration characterized Al Qaeda members as combatants, and had the attackers limited themselves to the USS Cole attack, solely on a military target, and skipped - well, what? 9/11, the African embassy bombings, the 1993 WTC attack, and a long list more - then they would had to have been treated as legal combatants rather than criminals. The fundamental premise of this argument is from an alternative universe, and a distant one at that. Why on earth are we discussing this?

(UPDATE. I see that Bobby Chesney, over at National Security Advisers, here, has pointed out something that I should have made much more explicit below. I join 100% with Bobby's point:

Among other things, Clark and Raustiala contend that:

"Labeling terrorists as combatants also leads to this paradox: while the deliberate killing of civilians is never permitted in war, it is legal to target a military installation or asset. Thus the attack by Al Qaeda on the destroyer Cole in Yemen in 2000 would be allowed, as well as attacks on command and control centers like the Pentagon."

It seems to me that this particular argument is missing a critical point: attacks on military objectives are indeed permitted, but only when carried out by someone with the combatant's privilege. Insofar as al Qaeda members lack that privilege, their conduct in bombing the USS Cole remains an illegal act of mass murder rather than a lawful act of war regardless of whether the perpetrators are deemed to be subject to military detention in connection with armed conflict.

Bobby is quite right on this point. What I should say, in the discussion below, is that even if you do not meet the definition of being a terrorist under international law, that is not by itself enough to show that you are a lawful belligerent with the combatant's privilege. Being a lawful belligerent is more than merely not being a terrorist within some legal definition. It is a very, very important point and I thank Bobby for making it.)

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The USS Cole attack and the definition of terrorism

But what of the USS Cole attack, in our world, with Al Qaeda is it actually is? There are, specifically, two real-world problems arising from the USS Cole attack and any claim that its perpetrators, under Bush administration standards, would have to be treated as legal combatants. The first is that Al Qaeda, under Third Geneva, article 4, flunks the legal combatancy test as an organization and therefore for its members and their operations. It is a status question for members of the organization, determined, under Third Geneva, by the conduct of the group. You don't get to do the African embassy bombings, and then claim that your attack against the Cole was legal and hence its perpetrators entitled to combatancy protections. That's simply not what article 4, Third Geneva, says. (Check to counterterrorism, UN, and laws of war tags on this blog for further discussion of the Cole problem and the definition of terrorism.)

Second, there is a problem with defining terrorism in the case of the Cole attack and it does raise problems for dealing with terrorism today. The problem is that there is, to this day, no accepted definition in international law. The point was brought dramatically home in the failure of the September 2005 UN reform summit of the General Assembly to achieve agreement on a definition of terrorism as urgently and congently called for by the Secretary General. Kofi Annan, in his preparatory document for the summit meeting, had offered a straightforward definition of terrorism that would be prohibited universally. He had thrown his full weight, his full authority, behind this - and yet it failed because the Islamic conference refused to countenance it. What did it call for? Drawing on the classic combatant/noncombatant distinction of the laws of war, it defined universally illegal terrorism to be attacks upon civilians (with some other language about seeking to coerce a government). The most elementary distinction in all the laws of war - thou shalt not make civilians the object of direct attack - could not manage to get passage in the UN as a definition of terrorism.

That said, however, it bears noting that even if that definition of terrorism had passed the General Assembly, even if it had been adopted in the universal treaty sought by Annan, it would not have solved the Cole issue. And it would not have solved the problem that Clark and Raustiala pin on the Bush administration's designation of terrorists as "combatants," albeit illegal ones.

Why not? Because the Cole attack was not an attack on civilians, but on a miltary target that, if the perpetrators were legal combatants, would be an exemplary military target, in part because of few issues of collateral damage. So, suppose that Bush designated terrorists as criminals under US law as the op-ed desires. Yet if you take international law seriously the way many international law professors tell us to, then you, as defense counsel for the Cole perpetrators, argue that you are at war with the Americans, even as a non-state actor, that there is no accepted definition of terrorist in international law, and that even the one proposed by the Secretary General would not criminalize your actions under international law. The question then becomes whether parochial American law can legitimately reach out to you to treat you as a criminal under a US long arm statute, in a way that international law does not, or whether it is an illegitimate, abusive exercise of American imperial power to treat you as a criminal. This is not a debate America would win in the General Assembly, and if you think it would be different under either Clinton or any Democrat, you have not been following the vicissitudes of the General Assembly.

Whereas by following the path that the Bush administration has trod, you can be treated, as a member of an organization that flunks legal combatancy requirements, as the Bush administration treats them - as both combatants and criminals, which, after all, under US domestic law, is what we actually think. They take "direct part" in hostilities but do so as part of a group that systematically violates the laws of war and hence does not qualify under Geneva Three. Any combatancy they undertake can be treated as illegal. Including that undertaken against targets that, if the attackers were legal combatants, would be legal targets. Why is this so crazy?

If the perpetrators genuinely were the alternative-universe pristine organization that only engaged against US miltary targets, and never targeted civilians, we would have another question - is US domestic law sufficient to criminalize behavior on a long arm basis that is not criminal under international law? The answer to that is almost certainly yes - we and other countries criminalize lots of behavior by long arm statute; the failure of international law to make something criminal does not preclude domestic law from acting. Our allies, and even states such as China and Russia, accept that domestic law can criminalize as terrorism activities that go beyond the proposed international law definition - if only from the self interest that states have, friends of ours or not, in ensuring that non state actor transnational attacks on military forces
can be treated as criminal acts. And this was the response that was given to me by most people I interviewed on the question of attacks on the USS Cole, or on British troops by the IRA, etc., by terrorist groups - the international law definition, even if codified in a treaty, would be treated as the minimum, not the maximum, of what constituted terrorism, and could be supplemented by domestic law.

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Going forward counterterrorism

I support major alterations in the legal structure of counterterrorism. I have spoken to these issues on this blog and elsewhere (see counterterrorism tag), most recently in a short piece in the Fordham International Law Journal, here. What most puzzles me about the appearance of Clark and Raustiala's piece today is that it seems to think that in order to get where it wants to go in reforming counterterrorism policy, it must get there by trashing a longstanding legal concept - unlawful belligerency, illegal combatancy - in the laws of war, and frankly demonizing a Bush administration interpretation of that concept that is very far from implausible under the terms of the Third Geneva Convention.

One may disagree with the policy and the legal application, particularly about whether it should continue to serve as the basis for US policy today, years after 9-11. I agree with parts of what Clark and Raustiala call for in the way of reform of legal categories - I won't go into my agreements and disagreements, but I do think that we ought to move, in detainee treatment, towards a civilianization of the system, as Elisa Massimino and I wrote recently in a joint paper for the Stanley Foundation. What I don't understand - what doesn't make sense to me either as law or policy or, frankly, political strategy - is why they seem to insist that their reforms arise out of fundamentally wrong and egregious application of the laws of war by the Bush administration.

The Bush administration was not wicked or crazy in viewing counterterrorism as war. Nor, having reached that conclusion, was it wicked or crazy in thereby concluding - after having first concluded to thunderous and correct denunciation, note, that the laws of war were not the proper frame for the war on terrorism, and afterwards backtracking to the position that the laws of war did apply after all, as the human rights critics demanded - that it should apply the laws of war to the war on terror. It was not wicked or crazy in using the concept of illegal combatant and unprivileged belligerent, nor was it crazy or wicked in its interpretation of the technical (non)requirements of a hearing under the Third Geneva Convention, article 5, notwithstanding my own sharp disagreement as a matter of policy. (In general, I agree with John Bellinger's views of these controversies, captured partly by his recent June 2007 speech in The Hague, and debated thoroughly over at Opinio Juris in its special guest blogging forum.)

Why do Wesley Clark and Kal Raustiala insist on making an argument for reform and change that seems to rely on the presumed egregious badness of the administration's position on war and the application of war law? Why trash a fundamental concept of the laws of war that has a long history attached to it? Why isn't it enough just to say that as applied was a bad policy then and a worse one now, and that it is time to change it? I can understand that perhaps Clark wants to energize some constituency on the Democratic left and I understand that it plays well within the limited political frame of the New York Times. But within the larger political debate in this country, and within the legitimate and important desire to find ways usefully to reform counterterrorism policy, I cannot see that linking future reform to this analysis of the past helps very much at all. It simply hardens people in their preexisting positions.

(UPDATE. Thinking over this op ed again, it reads to me as though Clark had one thing to say, what he always says about soldiers and terrorists, while Raustiala had a quite different thing he wanted to say about new court decisions in counterterrorism cases and, as the op ed says, the increasing wariness of courts to accept at face value the categories asserted by the administration. I don't think the two agendas quite come together - I don't think it is plausible, if you take the counterterrorism decisions altogether, even on a trendline, to say that courts are concluding that they have to be treated as criminals and not as unlawful belligerents. In the end, we would be further ahead if the NYT had given Kal the space to say what he thinks in a more definitive fashion - as things are, the op-ed leaves things more confused than either one author would be separately. But that's what I would have said if I were the op-ed page editor, and what do I know?)

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Clark and Raustiala:


The line between soldier and civilian has long been central to the law of war. Today that line is being blurred in the struggle against transnational terrorists. Since 9/11 the Bush administration has sought to categorize members of Al Qaeda and other jihadists as "unlawful combatants" rather than treat them as criminals.

The federal courts are increasingly wary of this approach, and rightly so. In a stinging rebuke, this summer a federal appeals court in Richmond, Va., struck down the government’s indefinite detention of a civilian, Ali al-Marri, by the military. The case illustrates once again the pitfalls of our current approach.

Treating terrorists as combatants is a mistake for two reasons. First, it dignifies criminality by according terrorist killers the status of soldiers. Under the law of war, military service members receive several privileges. They are permitted to kill the enemy and are immune from prosecution for doing so. They must, however, carefully distinguish between combatant and civilian and ensure that harm to civilians is limited.

Critics have rightly pointed out that traditional categories of combatant and civilian are muddled in a struggle against terrorists. In a traditional war, combatants and civilians are relatively easy to distinguish. The 9/11 hijackers, by contrast, dressed in ordinary clothes and hid their weapons. They acted not as citizens of Saudi Arabia, an ally of America, but as members of Al Qaeda, a shadowy transnational network. And their prime targets were innocent civilians.
By treating such terrorists as combatants, however, we accord them a mark of respect and dignify their acts. And we undercut our own efforts against them in the process. Al Qaeda represents no state, nor does it carry out any of a state’s responsibilities for the welfare of its citizens. Labeling its members as combatants elevates its cause and gives Al Qaeda an undeserved status.

If we are to defeat terrorists across the globe, we must do everything possible to deny legitimacy to their aims and means, and gain legitimacy for ourselves. As a result, terrorism should be fought first with information exchanges and law enforcement, then with more effective domestic security measures. Only as a last resort should we call on the military and label such activities "war." The formula for defeating terrorism is well known and time-proven.
Labeling terrorists as combatants also leads to this paradox: while the deliberate killing of civilians is never permitted in war, it is legal to target a military installation or asset. Thus the attack by Al Qaeda on the destroyer Cole in Yemen in 2000 would be allowed, as well as attacks on command and control centers like the Pentagon. For all these reasons, the more appropriate designation for terrorists is not "unlawful combatant" but the one long used by the United States: criminal.

The second major problem with the approach of the Bush administration is that it endangers our political traditions and our commitment to liberty, and further damages
America’s legitimacy in the eyes of others. Almost 50 years ago, at the height of the cold war, the Supreme Court reaffirmed the "deeply rooted and ancient opposition in this country to the extension of military control over civilians."

A great danger in treating operatives for Al Qaeda as combatants is precisely that its members are not easily distinguished from the population at large. The government wields frightening power when it can designate who is, and who is not, subject to indefinite military detention. The Marri case turned on this issue. Mr. Marri is a legal resident of the United States and a citizen of Qatar; the government contends that he is a sleeper agent of Al Qaeda. For the last four years he has been held as an enemy combatant at the Navy brig in Charleston, S.C.

The federal court held that while the government can arrest and convict civilians, under current law the military cannot seize and detain Mr. Marri. Nor would it necessarily be constitutional to do so, even if Congress expressly authorized the military detention of civilians. At the core of the court’s reasoning is the belief that civilians and combatants are distinct. Had Ali al-Marri fought for an enemy nation, military detention would clearly be proper. But because he is accused of being a member of Al Qaeda, and is a citizen of a friendly nation, he should not be treated as a warrior.

Cases like this illustrate that in the years since 9/11, the Bush administration’s approach to terrorism has created more problems than it has solved. We need to recognize that terrorists, while dangerous, are more like modern-day pirates than warriors. They ought to be pursued, tried and convicted in the courts. At the extreme, yes, military force may be required. But the terrorists themselves are not "combatants." They are merely criminals, albeit criminals of an especially heinous type, and that label suggests the appropriate venue for dealing with the threats they pose.

We train our soldiers to respect the line between combatant and civilian. Our political leaders must also respect this distinction, lest we unwittingly endanger the values for which we are fighting, and further compromise our efforts to strengthen our security.

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Comment from Alan Kaufman:

Alan G. Kaufman said...

As I sent in response to Dave Glazier's post on 10 August on this issue over at National Security Advisors:

Dave has gotten at what, for me, has always been the central problem or paradox with the "war paradigm" for counter-terrorism operations, and that is this: The term "unlawful combatant," for me, is an oxymoron. To be a combatant is by definition lawful -- even honorable. It is a status, not an act.

Combatants have the privilege to kill, and commensurately, have lost their "right to life." Combatants in armed conflict may intentionally kill and be killed by other combatants.

Combatants sometimes behave unlawfully, in which case they may be tried for their crime, for example murder, for intentionally killing a noncombatant, or other war crimes, such as intentionally attacking protected sites.

But combatant is a status, which is by definition lawful. It is actions, not status that defines "lawful," or unlawful.

"The paradox with the terrorist as "unlawful combatant" model is that it deprives the terrorist of his right to life, while denying him the combatant's privilege to kill. Thus, like a combatant, the so called "unlawful combatant" terrorist may be targeted and killed on sight regardless of whether caught in the act. Like an enemy soldier, he may be lawfully killed in his sleep, or while driving in a car to a meeting. But should this "unlawful combatant" kill a lawful combatant at any time, even while that combatant is attacking his camp, we call it murder. He is not granted the combatant's privilege.

My problem with this result is that it merges the concepts of jus in bello with jus ad bellum. In that model, we do not hold combatants accountable at law for the decision of their state to go to war. We hold a combatant accountable only for his conduct in the war. Even if the declared war is an unlawful one, the combatant is not a criminal for killing other combatants in the prosecution of that unlawful war. His behavior is honorable, even if his state is not. He is a warrior, like the warrior on the opposing side. This has the benefit of maintaining a certain limit on what conduct is permissible in war -- even ones unlawfully or wrongfully begun (which are all of them, depending on which side you are on), by governing the conduct of those doing the fighting.The term "unlawful combatant," on the other hand, makes such a person accountable, not just for his conduct in war (jus in bello) but for the decision of his "state" to go to war. He becomes dishonorable and criminal not just for his behavior in the execution of the war, but for his very participation in it.

This is antithetical to the jus in bello/jus ad bellum construct and to the modern law of war as we have known it. Remove the constraint imposed by jus in bello, and behavior in war can escalate beyond "honorable" bounds very rapidly. It takes us into the dangerous realm of "the end justifies the means." This because it allows each side to say of the other -- they started this war unlawfully, so they do not deserve the benefit of the laws of war -- we can do to them what they may not do to us . . . . This escalates rapidly as each side justifes doing worse to the other . . .This is exactly the evil that the boundary between jus in bello and jus ad bellum seeks to inhibit. Why does this happen to us now?

Because terrorists - the kind we fight these days --do not act for a state. They act for a non-state organization that has declared war upon us. And because we do not consider this particular non-state organization to be a polity like a state --consisting of its citizens yet existing in law also independently of them (similar to the way a corporation is a person in the law, separate from its individual shareholders who are not (usually)individually liable for corporate crime), we hold each individual fighter accountable not just for his conduct in the fighting, but for the decision of the entity itself to go to war against us.

Thus, in this model, a terrorist can never be a combatant -- he can never have the combatant's privilege, because he is individually liable, unlike the true combabtant, for the decision of his entity to go to war. He can never fight with honor, as do true combatants, because he can never be separated from the unawful decision to even make war in the first place. So "unlawful combatant" is an oxymoron. It implies a jus in bello status and accountablility for a jus ad bellum action.And by creating this oxymoronic category of "unlawful combatant" we claim the privilege to kill him -- deny him a right to life -- while denying him a reciprocal combatant's privilege as against our own state combatants.

This is expedient, but is it honorable? And what does it say for maintaining limits on the conduct of war so that it doesn't escalate beyond all human control, to something that we never desired or anticipated (as Thucydides describes of the Peloponnesian wars, or as Lincoln comments on the American Civil War: "Neither party expected for the war, the magnitude or the duration, which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself would cease. Each looked for an easier triumph, and a result less fundamental and astounding . . .The prayers of both could not be answered: that of neither has been answered fully. The Almighty has His own purposes" Or as Clausewitz put it: " . . .war, untrammeled by any conventional restraints, has broken loose in all its elemental fury.")

My own suggestion is that we ought to look at the counter piracy efforts of the 17th and early 18th century as a model for how to bring the force of war and a global effort against a dishonorable, non-state enemy. This is a model based in law enforcement, producing trial and punishment, using warships and honorable combatants to enforce the law . . . yet never for a moment conflating the enemy with a state . . .