Folk tales

Editors’ NoteThe following post is the seventh installment of a new feature, “Monday Reflections,” in which a different Just Security editor will take an in-depth look at the big stories from the previous week and/or a look ahead to key developments on the horizon.

A few weeks back, Naz Modirzadeh and I exchanged posts about what she characterizes as the Obama Administration’s creation of so-called “folk international law.”  In her most recent entry in the dialogue, Naz continues her thoughtful and provocative engagement on questions relating to the norms for the U.S.’s use of lethal force against al Qaeda and its co-belligerent forces.

Naz and I agree on important matters of substance.  Even so, Naz remains concerned about how the Administration has endorsed and applied certain humanitarian and human rights norms in its counterterrorism operations; and my sense is that her critique has struck a chord with certain readers who, to various degrees, share her anxiety about the Obama Administration’s efforts to apply and incorporate such norms.  Therefore I thought I might use this “Monday Reflection” post to examine Naz’s account in somewhat greater detail.

I.  Areas of Agreement

Far as I can tell, Naz and I agree on the following, at a minimum:

a.  States can and should use policy directives, such as the President’s Presidential Policy Guidance (PPG) that applies in Yemen,”to hold themselves to higher standards than those laid out in international law” — something that those of us concerned about humanitarian protections of civilians should encourage and celebrate.

b.  The Obama PPG that applies in Yemen does not purport to represent international law, “folk” or otherwise.  Instead, the President insisted upon those rules in order to establish higher, more restrictive standards for U.S. conduct than those that are binding under the U.S.’s view of what international law requires — in Naz’s own words, the President’s standards are “shockingly restrictive” if one assumes (as the U.S. does) that they apply to the conduct of a noninternational armed conflict.  That is to say, and as I assume Naz would agree, they’re “shocking” in a positive way.

c.  As for the topic that precipitated Naz’s original post — current U.S. operations against ISIL — it’s hardly controversial that the U.S. and Iraq are engaged in an armed conflict with that armed group.  (Naz never quite comes out and says this; but, if I understand her posts correctly, she does not dispute it.  Nor have I seen any statements from other states taking issue with it.)  Therefore there is no legal obligation for the U.S. to apply the “shockingly restrictive” norms of the Yemen PPG to ISIL–although the U.S. must, of course, comply with the U.N. Charter and with the full panoply of the jus in bello, including the principles of precaution, distinction and proportionality.

So far, so good.  Indeed, I think these fundamental points of agreement are, as a practical matter–most especially, in terms of actual protection of civilians and promotion of humanitarian norms in counterterrorism operations–far more significant than whatever issues may divide us.

II.  Differences

OK, but then where do Naz and I diverge?  I see at least three such areas, ranging from a specific, discrete confusion about sovereignty norms to a more fundamental disagreement about the international law that governs U.S. use of force against al Qaeda.  In ascending order of breadth and importance:

a.  Territorial sovereignty.

Naz writes that the President’s PPG for operations in Yemen “render[s] respect for territorial sovereignty almost entirely at the pleasure of the US President.”  That’s not right.  The Administration’s view is that international law, not the PPG, imposes significant sovereignty constraints on the U.S.’s use of force, even if the U.S. is correct that its armed conflict with al Qaeda extends beyond Afghanistan.  As John Brennan was at pains to emphasize in his Harvard address, the fact of such an armed conflict “does not mean we can use military force whenever we want, wherever we want.  International legal principles, including respect for a state’s sovereignty and the laws of war, impose important constraints on our ability to act unilaterally—and on the way in which we can use force—in foreign territories.”  To similar effect, the White House Fact Sheet that was released the day of the President’s NDU speech and PPG stated that “whenever the United States uses force in foreign territories, international legal principles, including respect for sovereignty and the law of armed conflict, impose important constraints on the ability of the United States to act unilaterally—and on the way in which the United States can use force.  The United States respects national sovereignty and international law.”

This, among other reasons, is why we’re not about to see the U.S. use lethal force against al Qaeda cells in Berlin or London . . . and why it is therefore a fundamental mistake for Naz to repeatedly characterize the U.S. as being engaged in a “global” war, even against al Qaeda (let alone “on terror”).  The more controversial locations in which the U.S. has used force are so-called “safe havens”–ungoverned or ungovernable spaces in which enemy forces have a significant and organized presence, from which they execute and plan to execute attacks against the United States, and in which they are not amenable to ordinary law-enforcement means of incapacitation.  In the few such locations where the U.S. has not obtained the consent of the host country, the U.S. has invoked the “unable or unwilling” doctrine as a basis for intervention.  By contrast, international law would preclude our use of force in nations–that is to say, across most of the “globe”–where governments are willing and able to cooperate with us to interdict the al Qaeda threat through the use of nonmilitary means.  (It’s therefore no accident that the President’s National Strategy for Counterterrorism barely even mentions the use of military force in its extensive description of the numerous tools the U.S. uses to combat the threat of terrorism around the world.)  In sum, the U.S. views sovereignty norms as imposing significant legal (as well as practical) constraints on when and where it can use military force.

Moreover, to the extent the principal office of the PPG is to govern our operations in Yemen, that is a situation in which the host nation reportedly has consented to the U.S.’s use force against AQAP–and therefore sovereignty constraints are inapposite.  Contrary to Naz’s characterization, then, our operations there hardly “look a lot like an illegal incursion into another sovereign’s territory.”

b.  A downside in adopting policy constraints that “borrow” from human rights law?

Although Naz agrees with me that it is a good thing when a state imposes policy constraints upon itself, over and above what the state believes international law requires, she appears not to approve of the particular constraints contained in President Obama’s PPG, and reflected in the Obama and Brennan speeches.  Oddly enough, her concern appears to be that those policy rules — some of them, anyway — are derived from another body of international law that Naz views as more restrictive than the law of armed conflict, namely, human rights law (IHRL).  This creates what she calls a “mish-mash of legal frameworks,” a “confusing and obfuscatory move.”

Here, I must confess that I simply don’t understand her concern.  Let’s say Naz is right, and that some of the President’s policy constraints in Yemen have their genesis in IHRL–or, in any event, that they are similar to IHRL norms.  (Clearly, this is not the case for all of the PPG rules, some of which are even more restrictive than human rights law:  IHRL, for example, does not forbid the use of lethal force whenever any civilian casualties can be anticipated; but the PPG generally does so.)  Why would such “borrowing” from IHRL be a bad thing?

Well, says Naz, there are “costs” or “downsides” in borrowing restraints from one legal framework without conceding that they are legally binding:  “You lose something in the move.”  Yet I am at a loss to understand what Naz thinks those “costs” or “downsides” are from the perspective of advancing humanitarian and human rights objectives.

1.  Naz worries that there is “confusion” or “obfuscation” when the executive adapts discretionary, self-imposed rules from other, nonbinding legal frameworks.  Even if she were correct–even if there were some unintended, residual confusion about what law the U.S. considers to be binding–surely that “cost” would be one well worth bearing in light of the substantial benefits in terms of civilian protections.  But in any event, there’s no such confusion:  It is, after all, called Presidential Policy Guidance; and the entire thrust of the pertinent portion of the President’s May 23d speech was to stress that just because something is legal does not mean we ought to do it–that he insists upon holding the U.S. to standards higher than those the law imposes:

To say a military tactic is legal, or even effective, is not to say it is wise or moral in every instance.  For the same human progress that gives us the technology to strike half a world away also demands the discipline to constrain that power — or risk abusing it.  And that’s why, over the last four years, my administration has worked vigorously to establish a framework that governs our use of force against terrorists –- insisting upon clear guidelines, oversight and accountability that is now codified in Presidential Policy Guidance that I signed yesterday.

2.  Naz also worries that the President’s self-imposed, extra-legal constraints have tamped down, or discouraged, a more fundamental public discussion we ought to be having about whether any use of force against al Qaeda outside Afghanistan is permissible.  She writes that the U.S. policy constraints have “forced administration critics to register their critique in the mode of IHL, and to talk about certainty and targeting, as opposed to focusing the discussion on the legality of the enterprise in the first place” (emphasis added).  This is a strange indictment, on at least two levels.

First . . . really?  The notion that a U.S. policy choice in the direction of humanitarian constraints might “force” critics to abandon their critique of “the legality of the enterprise in the first place” would not speak very well for those critics if it were true.  But of course it’s not true . . . not even close:  Such critics, including Naz herself, have hardly been silenced, or sheepish about expressing their disagreements with U.S. views of international law.  The debate continues, and fills volumes.

In her article (pp. 289-93), Naz argues that the President’s self-imposed constraints have caused several human rights and civil liberties organizations to trim their sails in order to curry favor or influence with the Obama Administration:  Those groups have, she says, begun to frame their critiques in terms of whether the U.S. is complying with IHL, while “jumping over” the antecedent question of whether “the overall framing of the war against al Qaeda is anathema to human rights law,” an argument Naz assumes those groups would have made before Obama was elected.  She cites no evidence, however, that these groups have ever adopted such a categorical view of the impermissibility of the armed conflict against al Qaeda, either today or before 2009.

Naz’s intimation of bad faith in the human rights community, that is to say, is unsupported:  She’s right that “few U.S.-based human rights lawyers suggest that the entire targeted killing program outside Iraq and Afghanistan is illegal.”  What Naz does not appear even to consider, however, is the possibility that those lawyers avoid making such an argument because it lacks much support in the law (more on this below) and that therefore they genuinely don’t believe it to be correct.

Second, to the extent Naz’s account of a more measured human rights response during the Obama Administration is descriptively accurate–let’s say, for example, that the President’s self-imposed constraints have, indeed, limited the degree to which U.S. practice deviates from what Naz assumes human rights law might require, and have therefore narrowed the circumstances under which critics might accuse the U.S. of violating that law–why isn’t that an affirmatively good thing, rather than a “downside”?  If aspects of actual United States practice are limited by the PPG and other presidential initiatives in a manner that results in greater U.S. compliance with anyone’s view of what international law requires, why wouldn’t that be something to be welcomed rather than lamented?

I assume Naz does not mean to suggest it would be better for the U.S. to be less discriminating in its use of force–to accept greater civilian casualties–just so that its legal critics would have more to complain about.  I’m afraid, however, that at times her critique conveys just such an impression:  In her article, for instance, she writes that the Obama Administration’s legal views, including its insistence that international law plays a substantial constraining role on U.S. counterterrorism operations, “may make some nostalgic for the days when the government simply rejected the applicability of international law to the war on terror.”  I’d like to think that Naz herself is not among the (undisclosed) “some” who are “nostalgic” for those good ol’ days, in which the battle lines were drawn more categorically.  But I’m not so sure.

Consider, for example, Naz’s account of the Hamdan litigation, which plays a prominent part in her narrative.  Naz agrees that Hamdan was a watershed case.  But for good or ill?  As Naz recounts in her article, the Supreme Court’s 2006 decision had a profound, immediate impact on U.S. practices, even apart from its invalidation of President’s Bush’s unilaterally imposed military commissions.  In particular, the Court’s holding that the U.S. and al Qaeda are engaged in a noninternational armed conflict, one that is importantly constrained by IHL, sounded the death-knell for torture, abuse, “extraordinary rendition,” and worldwide detention without oversight or regulation.  This was something that I, and others, celebrated within minutes of the Court’s decision.  It reportedly altered the government’s conduct virtually overnight.

If I’m reading her article correctly, however, Naz looks back upon Hamdan as, in a sense, the Day the Music Died–almost as though she were wistful for the period before 2006, when there was no “confusion” about how the U.S. viewed its legal constraints.  She implies that the Court’s decision, and President Obama’s subsequent strong embrace of its fundamental predicates–that the U.S. is engaged in a NIAC with al Qaeda that is constrained by IHL–were a wolf in sheep’s clothing, or medicine that was worse than the disease, because those changes made it much harder for critics of the United States to interpose any fundamental objections to what Naz calls “the whole enterprise”:  The debate necessarily moved to the retail level, and offered legitimacy to the view that the U.S. is, indeed, engaged in an armed conflict with al Qaeda.

For someone accustomed to seeing everything from a Manichean perspective, perhaps this shift in the legal terrain was disorienting, or even discouraging.  Naz is surely correct that it was far easier for critics to condemn U.S. conduct in the period preceding Hamdan . . . but that’s because there was far more to condemn, because U.S. practices in that period virtually ignored international law.

Contrary to what Naz suggests, however, the Court’s decision was hardly a setback for humanitarian objectives.  Consider the alternative:  If the Court had held that the U.S. and al Qaeda were not engaged in an armed conflict, it’s not as if some much more robust set of human rights constraints would have magically kicked in and brought President Bush’s war (or status-based use of force, anyway) to a halt:  To the contrary, the U.S. government presumably would have continued to consider itself far less constrained by international law.  That might have made outside criticism much easier and more effective; but it’s hardly a reason for looking back nostalgically on those pre-Hamdan years.  If a tempering of the public debate is one of the costs of the President’s (and the Court’s) insistence that the war be conducted with far greater sensitivity to international law and humanitarian needs, that’s a tradeoff I’ll take every time.

3.  Is the U.S. view of the governing international law fundamentally mistaken?

This brings us, finally, to what I understand to be Naz’s most fundamental concern–namely, whether the United States’ view of its international law obligations is correct or not, on the merits.

According to Naz, not only “most international lawyers,” but also “most allies,” view the U.S.’s use of force outside Afghanistan “as violating clear sovereignty and international human rights law rules.”  I think it’s fair to assume that the two principal practices Naz has in mind are (i) the U.S.’s use of force against nonstate armed forces on the basis of their status (something that the Obama PPG now largely prohibits as a matter of policy in Yemen); and (ii) the U.S.’s invocation of the “unable/unwilling” doctrine in cases (such as the bin Laden operation) where the host nation does not consent to the use of force against al Qaeda in one of its safe havens.

There’s a lot packed into Naz’s assumption about what “most” lawyers and allies believe–subjects that could consume countless further blog posts, articles and symposia.  Perhaps there is some serious difference of opinion on such questions.  Naz, however, offers no evidence at all in support of her certitude that “most” international lawyers share her views.  Indeed, one of the most disconcerting things about her article is that, from all I can tell, it proceeds on the assumption that there is (or at least was, in 2002) this widespread consensus among “international lawyers”–or within what she calls the “disciplines” of IHL and IHRL, at a minimum–that “clear” rules condemn these U.S. practices, and yet she fails to cite virtually any evidence of such consensus.

Take, for example, the view that the armed conflict with al Qaeda does not extend beyond the Afghan border.  Naz appears to assume that this is self-evident.  In fact, however, it would be very difficult for a conscientious attorney to identify much authority in support of such a legal proposition–let alone to conclude that it reflects the best view of the law.  (See, e.g., pages 24-27 here.)  And in the absence of of a fairly rigorous demonstration that governing legal authorities required it, how could human rights attorneys and other lawyers possibly persuade the Administration that it should or must abandon the longstanding legal view of all three branches that there is, in fact, such an armed conflict?

More importantly, when it comes to the views of nation states–our “allies,” in particular–not only does Naz not make the case that “most” such nations condemn the U.S. practices as “clearly” unlawful; she does not cite even a single ally as having articulated that view.

I don’t mean to suggest, of course, that no nations would object to the U.S. views of international law.  Some nations undoubtedly would do so, at least in certain respects, if compelled to take a public position.  Pakistan, for instance, did complain that the U.S. operation to capture or kill bin Laden violated its sovereignty.  And John Brennan has acknowledged, without specification, that “some of our closest allies and partners . . . take a different view of the geographic scope of the conflict, limiting it only the ‘hot’ battlefields.”  It is striking, however, how difficult it is to identify any actual U.S. allies that have expressed the view that the reported U.S. practice of status-based strikes in Yemen, pre-PPG, violated international law–let alone that such U.S. practices are “clearly” unlawful.  It is also difficult to find many allies–any at all?–who have rejected the U.S. invocation of the “unable/unwilling” doctrine in the context of, e.g., the bin Laden raid.

My point is not to argue that international law is crystal clear on all such matters–of course it isn’t.*  But neither should we accept at face value Naz’s assumption that “most” allies, or even “most” international lawyers, share her views of what the law “clearly” condemns.  And absent that premise, Naz’s inflammatory and unsupported indictment of human rights groups for allegedly “trad[ing] in strict fealty to international law for potential influence on executive decision-making” rings hollow.

Moreover, what if such groups had persuaded the Administration that there was no noninternational armed conflict?  What then?  To repeat a point I emphasized above with respect to Hamdan, I am not nearly as sanguine as Naz appears to be that U.S. use of force would have been more constrained, or more attuned to human rights, had the Executive branch (or the Court) concluded that that there is no NIAC and that IHL does not apply.  To the contrary:  We’ve seen that movie before, and it’s not a pretty picture.


* There is one issue on which it is fair to say that many or most allies, and most lawyers, do disagree with the U.S. view–namely, whether the International Covenant on Civil and Political Rights has any extraterritorial application.  It’s not obvious, however, that that disagreement about the ICCPR would have much, if any, impact on the U.S. practices Naz discusses, because it’s far from clear that the use of force against enemy armed forces, in compliance with the restrictions of IHL, would be “arbitrary” under Article 6(1) of the ICCPR.  See note 37 of the OLC al Aulaqi opinion, and Point 4 of Ryan’s post. 

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About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).