The Bobbitt Version

Beginning in 2002 with the publication of The Shield of Achilles: War, Peace and the Course of History and continuing through Terror and Consent: the Wars for the Twenty First Century published in 2008, and The Garments of Court and Palace: Machiavelli and the World He Made (2014), I have tried to integrate law, strategy and history in an explanatory narrative that stresses the importance of law—international and constitutional—for war (and vice versa), and the imperative of adherence to law in the wars on terror. I was pleased to learn that the formidable British commander General Sir Rupert Smith once wrote, “Terror and Consent shows, more convincingly than any other book I know why the defeat of terrorism must be brought about within the context of law.” [1]

So it was a bit of a surprise to read in Jameel Jaffer’s response to my review of The Drone Memos that, Bobbitt “wants the mere invocation of war to deliver law’s silence.”[2]

I don’t know how to put this more clearly: it is not that I seek a lawless framework for the use of drones (or any other weapon in the wars on terror)— quite the contrary— but that I do not believe that litigation provides the sole and exclusive domain of law. It is not a telling riposte to claim that I reject “any meaningful legal constraint” on state violence by the sleight of hand of assuming away the very point at issue—whether meaningful legal constraints exist outside court-ordered ones.  

Jaffer’s assumption that, absent the litigation of which he is a skilled practitioner, the Executive would exist in a law-free environment is not only vulnerable logically, however, it fails as a description of the way the US intelligence and military agencies operate as they wage the wars on terror. In fact, it is not even the basis for the rules that govern the use of drones in those wars.[3] Moreover, such a description of law as confined to the results of litigation has some rather serious analytic shortcomings that I described in my review.   Jaffer does not offer any arguments to the contrary in his Reply. [4]

As David Kris has observed, “we can have legitimate debates about what forms of conduct are subject to what forms of law.  But to do that, we have to acknowledge that there are forms of law other than civil litigation, that the alternative is not ‘law’s silence’ but the law speaking in a different voice. The Constitution, statutes, international law, Executive Orders, Presidential guidance, procedures approved by the Attorney General, and service manuals all have real value and effects outside the context of civil litigation even if those effects may not be identical to what they would be in litigation.”[5]  And these various legal instruments can all be assessed outside the courts by lawyers, by journalists, by academics, and by citizens using the same forms of legal argument that the judge uses.[6]

I.

But I have come to believe that the point of Jameel Jaffers’ self-defense is not to offer arguments; it is to build a picture of a rather unhinged militarist (that would be me) which makes engagement with my arguments rather beside the point. If you think I am wrong about this, consider the following:

I am notsanguine” about warfare, having studied it for many decades and often written reminders in my works that we must constantly bear in mind the horrible suffering and destruction of war when we debate missile numbers and the lethality of different warheads, etc.

I do not believe that “human rights lawyers are useful idiots,” by which Jaffer means, alluding to a famous phrase attributed to Lenin, that they are unwitting tools of our enemies.   I admit I do sometimes think that they can be self-important, self-righteous and humorless to the extent that disagreeing with them seems to threaten their self-image as society’s last, best hope.

My review has nothing to do with the phenomenon of “lawfare”—the use of legal proceedings by terror groups as a weapon of war.

I don’t in fact confuse human rights lawyers with the terrorist enemy; if I did , I wouldn’t ask them to speak to my classes or suggest them as role models to my students.

Jaffers writes that, “.….Bobbitt says my introduction is ‘well-rendered’ in the same way he might say a terrorist attack was “well-executed.” What I actually said was, that the “introduction is worth the price of the book alone, for it gives us an articulate and comprehensive critique of administration policy while also providing a memorable self-portrait of the ACLU lawyer as a combatant in the endless struggle against the US government.”

Jaffer appears to be outraged that I called him a “combatant,” but this was simply a mild joke for the Just Security community, playing off the combatant/non-combatant debate and, obviously correlated with the brilliant cartoon of Tom Kleh with which my essay is illustrated. I intended no sting and had no idea that Jaffer would be upset (if in fact he really is).

I did not characterize ACLU lawsuits as “rough tactics”; I said that if the motive behind seeking the disclosure of privileged documents was to intimidate their authors, this would be a “rough tactic” and I speculated that one purpose behind the litigation to disclose the names of corporations that had cooperated with the NSA was to intimidate their corporate officers. Does this sound so off the mark? Would Jaffer deny this?

I did not say, and do not think, that human rights advocates are responsible for the election of Donald Trump; I do think that some of their spokesmen act as though government officials are behaving illegitimately when they disagree with the advocate’s interpretation of the constitution and the laws. Have you really never heard such charges?

I do not fail to recognize that one can sensibly question the value of the drone campaigns (or any military technology, or any campaign for that matter); indeed I have written essays doing precisely that.

It does notelude” me that drone attacks—like other counter-terrorism activities—can alienate local populations and radicalize some of their members, commonplace observations made in my original review. Another question, however, is whether drones do this to a greater degree than say aerial bombing or other tactics against remote and elusive targets. And yet another question is what alternatives Jaffer would propose. And finally one wants to ask whether civil litigation is the best way to optimize tactics and strategy in war.

I do not believe that the drone wars “are morally uncomplicated.” Rather I believe that you can’t fruitfully discuss the moral dimension of the problem “in the absence of some serious discussion about the strategic context in which these decisions are made, the evolution of the global threat, and the changing modes of warfare that are shaping the nature of the state.” Not quite the same, is it?

If Jaffer is right in this very serious charge of moral obtuseness, then when Rowan Williams, the Archbishop of Canterbury and a noted theologian, wrote of my work that, “behind the pragmatic and unsparing struggles with how we are to manage all this frightening and rapid change, there lies…an Augustinian Christian sense of the tragic obligation to achieve even a temporary and flawed good in the face of endemic untruthfulness and evil,” what could he have been talking about?

 II.

I indicted Jaffer for failing to make a persuasive argument about the role of law in war because he refused to acknowledge that we were even in a war, a recognition that has important legal consequences. His answer to this charge is to carefully elide the threat of terror, which might come from many sources and in many different legal contexts, with warfare. Watch this:

His principal complaint is that I don’t understand that we’re at war.  

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. 

Do you notice the conjurer’s move here? Acknowledging the threat of terrorism is not the same as acknowledging that we are in a state of war. The most important difference –there are many–is a legal one. Terrorism of the kinds we have known in the 20th century is principally a criminal problem for law enforcement. It has no strategic dimension and was largely confined to nationalist insurgencies against occupying, or colonial powers, or ruling nation states: the IRA, ETA, the FLN, the Viet Minh, the PKK, the PLO. The US was not at war with those groups and our laws reflected that fact. The Authorization for the Use of Military Force against the perpetrators and their allies who attacked New York and Washington in 2001 is, however, a joint resolution that declares the existence of state of international hostilities. Many legal consequences flow from this, including differing applicable standards of due process and judicial oversight.

III.

Jaffer complains that I tell,

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. 

I confess I did think the similarity—it is not an analogy—was amusing. Life with a four-year old can only be endured, much less enjoyed, if you can occasionally see things through his eyes. What would Pasha think if I were to take away his foam-rubber sword and tear down the fort he and his sister play in on the grounds that we want “to avoid trivializing violence” (Jaffer’s gallant defense of the school’s policy)? It would seem rather pompous, wouldn’t it? But that does not mean that my argument was that Jaffer couldn’t understand the logic of the drone campaign because he didn’t see the conflict against terror the way I do. My argument was that the scrupulous avoidance of the use of a word can quite complicate the analysis of the environment within which the proscribed word operates. It’s not the logic of the drone campaign, it’s the lawfulness that is hard to accurately analyze if you take out the context of warfare in which the campaign arises. And no, I do not think, as Jaffer asserts, that war is “something like a children’s card game.”

IV.

In place of arguments, one gets the serial shall we say ‘mischaracterizations’ noted above in an effort to create a certain portrayal of me, or rather of a “mindset” of which I am said to be typical. And why are we provided these egregiously distorted depictions of my views? I doubt it’s because these views interest Jaffer, indeed he can scarcely bring himself to even describe them accurately. Rather it’s to provide him with the opportunity to contrast his own mindset with mine.   Jaffer proclaims, “I don’t find this mindset attractive”—well, who would? Hitler? it’s certainly not me, Jaffer tells us, no sir, not someone like me. And in gratitude for this opportunity, Jaffer concludes that, odious as this mindset may be, “Bobbitt should be credited for having provided such a vivid expression of it.” So instead of an argument, we get a diagnosis, at once self-serving and snide.

This culminates in a kind of graffiti that first notes “the peculiarity of Bobbitt’s moral compass” and then concludes with this flourish:

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.

Now there is no reason why Jaffer or anyone else should be familiar with my professional experience or know my books except this: that it is incumbent to inform oneself about a person if you are going to make such inflammatory, personal and grave charges. Here I have to apologize for what is about to come—I realize this essay is looking like “Advertisements for Myself”– but it must be done.

Jaffer’s is a farrago of claims that are in fact contradicted by my work and my life. Why would a person of “boundless confidence in the rectitude and sound judgment of national security officials” have been recruited[7] to be the legal counsel to the Iran Contra investigation, to have written of the Affair that the president’s actions constituted a basis for impeachment[8]? Why would a person who is impatient “with efforts to subject state violence to meaningful legal constraint” have been drafted[9] to work on a charter for the CIA after Watergate or argued that the Geneva Conventions should be adhered to in the wars on terror or that strategic bombing campaigns should henceforth be regarded as war crimes or, for that matter, had his work described[10] in this way: “Bobbitt gives salutary prominence to the political as well as the moral case, so fatefully neglected by the Bush administration, for conducting war within explicit limits of law”?   And what is “seeming” about my alleged “indifference to the innocent people affected by …violence”? That I happen to include in their number alongside the terrorist’s son who was unintentionally killed by a drone the far greater number of those innocents who were the intended victims of terror in Paris and Brussels, or New York and London? Or of state terror in Ukraine and Syria? Or is my offense that I have had the temerity to point out that in calculating the horrors of war we must also add up the number of victims who suffer when we don’t act?

It is quite distasteful to feel compelled to offer a resume to rebut the reply to a book review. Apparently Jaffer has taken on board the advice that the best defense is a good offense. Jaffer’s is an ancient tactic, going back at least to the Sophists, to ignore damaging arguments, mis-state the positions of your opponent, or attack his “mindset” (in the days of the Greeks this would have been his class or religion, which should give the modern purveyors of such stereotyping some pause).

Such a pastiche would not engage my interest (or yours) if it came from someone less respected and capable than the deputy legal director of the ACLU. I’ve never met Jaffer and I doubt he has any personal animus against me. What’s going on?

I think Jaffer is reflecting the position of so many, in so many pressure groups,[11] that they alone are the protectors of the Constitution and that the people who disagree with them don’t deserve to have their arguments treated on the merits. The substantive points—Jaffer’s curiously blinkered view of what counts as “law” for example– made in my review are never addressed, much less refuted. But how could they be? Even to address them is to question Jaffer’s self-portrait, and the self-portrait’s centrality to the Constitution in our time, to say nothing of its pose of moral superiority.   It makes me wonder whether all the shouting and offensive charges are little more than a hopeful distraction.[12]

The Drone Memos is a compilation of government documents of great importance, largely because it details the law that is developing around the decision to target a person for a discrete killing that will play a far larger role in the future than it ever did in the wars of the 20th century. Let’s hope the introductory essay to the next volume is more worthy of Jameel Jaffer’s undoubted talents.   In the meantime, I plan to take my “peculiar moral compass” out to the garden with Pasha and Rebekah to play a game of what we used to call “Hide and Seek”. Perhaps it should be named “Search and Destroy” in order to avoid understating the perils of the enterprise.

End Notes

[1] Because Jaffer distorts some of my positions and ignores those he does not distort, I would prefer that readers of his Response simply go back to my original essay.  I stand by it and feel more confident about it now that I have read Jaffer’s reply.  The effort to paint me as one intoxicated with executive power, insensitive to the loss of innocent life, and above all, hostile to bringing the State under law is one I can ignore; Lord knows, I’ve heard worse. But bitter experience has taught me that most readers won’t do this and need to be alerted to the flaws in the latest defense before they will credit the flaws previously pointed out in the original indictment.  And, as we have just observed in the presidential campaign, distortions about the character or “mindset” of someone tend to stick if not forcefully rebutted. I loathe that I have to trot out testimonials, like the Tin Man, to establish my bona fides with respect to positions I have held for decades; I wince that I must quote praise from persons I especially respect, dragging them into the fray. It’s grotesque. But the alternatives—doing nothing or relying on one’s friends to defend one against personal attacks—are even worse (more like the Cowardly Lion).

[2] I assume that Jaffer is alluding to Cicero’s much quoted assertion that, ”inter arma silent leges”. In 2010, the title of my All Souls Lecture at Oxford was “Inter Arma Enim Non Silent Leges,” which was subsequently published in the Suffolk Law Review. As is obvious from the title, I disputed Cicero’s dictum. http://suffolklawreview.org/inter-arma-enim-non-silent-leges/

[3] Compare Jaffer’s assertion that, “we have a targeted killing program under which the government was killing people, including American citizens, in half a dozen countries around the world without any process,” with the discussion of Presidential Policy Guidance, issued by the president in May 2013, discussed in my original review.

[4] ”To my mind, Bobbitt makes at least two important points that Jaffer misses.  The first is that a judicial or adjudicative model is inadequate to understand the basis and extent of presidential power during an armed conflict (I’m happy to call it a “war,” the 9/11 War) authorized by Congress…. Bobbitt’s second point is that organizations like the ACLU (as well as journalists) have placed far too much emphasis on OLC opinions as the source of law for the executive branch rather than presidential actions.  Especially in sensitive areas like national security in which there is ongoing presidential involvement, the president controls the law of the executive branch, not OLC.  In understanding that law, we must look first to presidential statements and decisions, not the quasi-judicial statements of OLC.” Stephen Griffin in Balkinization https://balkin.blogspot.com/

[5] Email to author, 12/5/16.

[6] See P. Bobbitt, Constitutional Interpretation (1992).

[7] By Arthur Liman of all people, in whose name the Liman Public Interest Fellowships were created.

[8] See Constitutional Interpretation, Chapter 3.

[9] By Lloyd Cutler—another masterful lawyer who was also, by the way, a founder of the Lawyer’s Committee on Civil Rights.

[10] By Timothy Garton Ash.

[11] The NRA comes to mind, but so also NARAL and quite a few special interest lobbies, many of whose objectives I in fact support.

[12] “Pay no attention to the man behind the curtain.”

Image: With permission from Tom Kleh 

About the Author(s)

Philip Bobbitt

Herbert Wechsler Professor of Federal Jurisprudence and Director of the Center for National Security at Columbia Law School and Distinguished Senior Lecturer at the University of Texas