Philip Bobbitt’s War Without Tears

In times of war, it’s sometimes said, the laws fall silent—but the laws, and the human rights lawyers who would enforce them, are still faintly murmuring, and these faint murmurs are annoying the law professor and former national security official Philip Bobbitt, who has written an unsympathetic review of my new book, The Drone Memos.  Bobbitt focuses his criticism on my claim that the U.S. government’s targeted killing policies aren’t subject to “law” in any ordinary sense of the word.  Bobbitt is quite satisfied with the legal constraints on the drone campaign, and he thinks my argument reflects a dangerous naïveté about the threat of terrorism.  He also seems to believe that human rights lawyers are, at best, useful idiots for al Qaeda.

Bobbitt’s review is noteworthy most of all for the difficulty it encounters in distinguishing human rights advocates from the enemy.  Bobbitt characterizes the ACLU’s transparency lawsuits as “rough tactics” and “coercive.”  The suits were filed, he says, not to vindicate the public’s right to know about government activity but rather to “intimidate” military and intelligence officials and to “delegitimat[e]” the United States.  The lawyers who filed the suits, he supposes, viewed government officials as “enemies of the people.”  He labels me a “combatant in the endless struggle against the U.S. government.”

Characterizations like this will be familiar to anyone acquainted with the standard “lawfare” critique of human rights advocacy, but Bobbitt manages to come up with new variations on the old themes.  Who should be held responsible for the fact that Donald Trump will be the nation’s 45th president?  Why, human rights advocates, of course.  (“Since last Tuesday, we’ve been living with the consequences of the relentless campaign of delegitimation based on the repetition of sensational charges and the view held by its advocates that the U.S. government is really the chief threat to our liberties and well-being.”).

Against the background of these extreme views, Bobbitt’s occasional kind words for my writing—he calls my introduction “articulate,” “comprehensive,” and “subtle,” and he labels me a “forceful and persuasive advocate”—take on a dark cast. Bobbitt says my introduction is “well-rendered” in the same way he might say a terrorist attack was “well-executed.”

Bobbitt does have a substantive critique of my argument.  His principal complaint is that I don’t understand that we’re at war.  He tells a story about his school-age son’s teachers, who, in an effort to avoid trivializing violence, have given the card game once known as “War” an innocuous new name.  I’m like those teachers, Bobbitt says, obviously pleased with his analogy, in my refusal to call war, “war.”  If only I acknowledged the significance of the threat we confront, Bobbitt says, it would be easier for me to understand the logic of the drone campaign. 

Bobbitt seems not to recognize that one can reasonably question the value of the drone campaign even if one accepts, as I do, that the threat of terrorism is real.  It also seems to elude him that the persistence of the threat is reason in itself to question the drone campaign’s value—since the drone campaign was, let’s recall, intended to reduce the threat.  Bobbitt would presumably argue that the scourge of terrorism would be even more dire were America’s flying robots not routinely killing supposed terrorists overseas, but this would not be an easy argument to support.  The ranks of al Qaeda in the Arabian Peninsula grew dramatically after the U.S. government stepped up the drone campaign in Yemen.  Some of those who’ve tried to carry out terrorist attacks in the United States have cited the drone campaign in explaining why they sought to kill Americans.  And many analysts—including the “respected national security figures” Bobbitt invokes to mark the outer limits of respectable debate—believe that drone strikes have generated more enemies than they’ve eliminated.

Bobbitt thinks it’s my failure to fully appreciate that we’re at war that explains my fixation on the courts.  To my complaint about the judiciary’s refusal to consider the lawfulness of the government’s targeted-killing policies, Bobbitt’s dismissive response is that during wartime the Constitution allocates certain questions to the political branches exclusively.  Okay, yes, but which questions?  The Supreme Court has reviewed the exercise of war powers in many different contexts.  Indeed, it’s done so repeatedly since 9/11, and the Court’s post-9/11 cases emphasize that the Constitution “most assuredly envisions a role for all three branches when individual liberties are at stake.” (That’s from Justice O’Connor’s opinion in Hamdi v. Rumsfeld.)  Bobbitt doesn’t acknowledge these cases.  He wants the mere invocation of war to deliver law’s silence.

Let’s also consider how Bobbitt describes the war he accuses me of ignoring.

Bobbitt’s review extends to almost 3500 words, but he doesn’t once mention the civilian bystanders injured or killed in U.S. strikes.  He returns to the case of Anwar al-Aulaqi frequently but never mentions the case of Abdulrahman, Anwar’s 16-year-old son.  Bobbitt also contends that American drones have killed 2040 “terrorists,” which is not nearly true.  Perhaps Bobbitt is assuming that every drone-strike victim the government hasn’t expressly labeled a “non-combatant” was a militant, and that every militant was a terrorist?  Given that Bobbitt describes me as a “combatant,” perhaps it’s not surprising that his numbers are off.

In any event, the crucial thing to recognize is that the war Bobbitt has in his head has very little relation to the war the U.S. government is actually fighting.  Not for Bobbitt the drone campaign of signature strikes, double taps, faulty intelligence, incinerated children, missiles fired into wedding halls and funeral processions, and official misdirection and concealment.  Bobbitt’s drone war is sterile and morally uncomplicated—something like a children’s card game.  It’s war without tears.  Presumably this is why Bobbitt’s so sanguine about it.

I should acknowledge that Bobbitt isn’t entirely insensitive to the human dimensions of the drone campaign. Though Bobbitt seems untroubled by the deaths of innocent people, my treatment of Harold Koh—whom he says I “discredit” by “innuendo”—moves Bobbitt to indignation.  (“The very idea that Koh might have some good reason to believe he was vindicating his human rights ideals when he sought a legal rationale to resist terror apparently is too preposterous [for Jaffer] to consider.”).  In fact I do not “discredit” Harold Koh by innuendo or otherwise, and I feel confident that Koh, whom I admire, genuinely believed he was serving the cause of human rights. The narrow point I make in my book is that Koh’s defense of the drone campaign was especially valuable to the administration because of Koh’s reputation as a human rights advocate.  It’s indicative of the outsized solicitude that Bobbitt extends to “respected national security figures,” and perhaps also of the peculiarity of Bobbitt’s moral compass, that Koh’s reputation as a human rights advocate is the only casualty of the drone campaign that Bobbitt seems to notice.

Careful readers will have realized by now that Bobbitt and I see the world very differently. I do appreciate Bobbitt’s close reading of my writing, though, and I don’t want to leave the impression that his review isn’t worthwhile.  Ultimately, I view Bobbitt’s review the same way he seems to view the introduction to my book: it’s articulate and well-rendered, and it’s valuable because it reveals a particular mindset.  In Bobbitt’s case, this is a mindset characterized by a boundless confidence in the rectitude and sound judgment of national security officials, impatience with efforts to subject state violence to meaningful legal constraint, and a seeming indifference to the innocent people affected by that violence.  I don’t find this mindset attractive, but Bobbitt should be credited for having provided us with such a vivid expression of it.

 

Image: Reaper UAV – Ethan Miller-Getty Images 

About the Author(s)

Jameel Jaffer

Founding Director of the Knight First Amendment Institute at Columbia University, Former Deputy Legal Director at the American Civil Liberties Union and Director of the ACLU’s Center for Democracy, Author of The Drone Memos, Follow him on Twitter (@JameelJaffer).