Armed Conflict With Al Qaida?
by John Bellinger
My next three posts will cover issues relating to the law of war. I know that many people have objected passionately to some of the Administration’s policies and legal positions relating to detainees. I have heard many assertions that U.S. detainee policies violate international law, and I must say that I think many of the criticisms are based on an inaccurate understanding of applicable international law or on aspirational statements of international law as critics wish it were, rather than as it now exists. I am not going to try in this limited space to rebut or discuss every one of these criticisms. I want instead to describe in detail our legal thinking on three specific matters. My purpose is not to persuade readers to agree with Administration policies. But I would ask readers to engage in serious legal analysis. If you question our approach, I would ask you to consider whether a different approach is actually legally required or simply preferable as a matter of policy. Did a realistic alternative approach exist, and how would that approach have worked better in practice?

I want to begin by addressing two related issues that have come up frequently in my discussions with my European colleagues. The first issue is whether the law of war is an appropriate legal framework in which to respond to terrorist attacks. The second issue is whether a state can be in an armed conflict with a non-state actor outside that state’s territory.

The phrase "the global war on terror"—to which some have objected-- is not intended to be a legal statement. The United States does not believe that it is engaged in a legal state of armed conflict at all times with every terrorist group in the world, regardless of the group’s reach or its aims, or even with all of the groups on the State Department’s list of Foreign Terrorist Organizations. Nor is military force the appropriate response in every situation across the globe. When we state that there is a “global war on terror,” we primarily mean that the scourge of terrorism is a global problem that the international community must recognize and work together to eliminate. Having said that, the United States does believe that it is in an armed conflict with al Qaida, the Taliban, and associated forces.

Let me start back in 2001. There was widespread recognition that the United States suffered an armed attack by al Qaida on September 11, and that, under the principle of self-defense, the United States was entitled to use force against al Qaida and Taliban forces in Afghanistan. No one in the international community suggested at that time that the United States was not entitled to use force to respond to those terrible attacks. (See here for a discussion about why law enforcement tools were not – and are not – sufficient on their own to stop future imminent attacks against the United States from al Qaida.)

Why did we have a right to use military force? We did so in self-defense against the Taliban because it had allowed al Qaida to use Afghanistan as an area from which to plot attacks and train in the use of weapons, and it was unwilling to prevent al Qaida from continuing to do so. After giving the Taliban an opportunity to surrender those it was harboring (an opportunity it refused), we took military action against its members.

We also were justified in using military force in self-defense against al Qaida, as an entity that planned and executed violent attacks with an international reach, magnitude, and sophistication that previously could be achieved only by nation states. Its leaders explicitly declared war against the United States, and al Qaida members attacked our embassies, our military vessels, our financial center, and our military headquarters, killing more than 3,000 people. Al Qaida also had a military command structure and world-wide affiliates. In our view, the United States was justified in responding in self-defense, just as we would have been if a nation had committed these acts against us. Indeed, the UN Security Council recognized our right of self-defense in resolution 1368 on September 12. And if the United States did not have the right to use force against al Qaida and the Taliban, we would have had no acceptable way to defend our citizens after the most devastating attack against the United States in history. Given the Taliban’s unwillingness to cooperate with the international community to bring the perpetrators of the September 11th attack to justice, one cannot reasonably argue that the only recourse the United States had against al Qaida was to file diplomatic protests or futile extradition requests to Mullah Omar.

So we found ourselves in an armed conflict in Afghanistan starting in October 2001. In the course of that conflict, we detained members of al Qaida and the Taliban, some of whom are now in Guantanamo. U.S. or allied forces captured the majority of these detainees in late 2001 or early 2002 in or near Afghanistan. One of the most basic precepts in the law of armed conflict is that states may detain enemy combatants until the cessation of hostilities. It cannot reasonably be argued that the United States and its allies had the right to use force in Afghanistan but did not have the right to detain individuals as an incident to the armed conflict that ensued, unless we planned to charge them with a crime. The Supreme Court explicitly has affirmed in Hamdi that the United States had the right to detain enemy combatants in the armed conflict that ensued after our decision to act in self-defense.

Some critics agree that we were in a war with the Taliban and al Qaida in Afghanistan in 2001-02, and that our detention of at least some of the detainees was justified under the law of war. But they argue that the conflict ended in June 2002 with the establishment of Afghanistan’s new government and that our legal basis for holding any detainees ended at that time. But this assertion is not consistent with the facts on the ground, because the Taliban continues to fight U.S. and coalition forces in Afghanistan. We see the Afghanistan conflict as a continuing conflict that began in 2001, and believe that the United States is not obligated to release any Taliban detainees we currently hold in Afghanistan or Guantanamo, only to see them return to kill U.S. and coalition forces. Anybody who questions whether this conflict continues should consider that combat operations over the past few months have resulted in the deaths of several hundred Taliban fighters and a number of U.S., European, and Canadian forces.

Equally important, however, we believe that the United States was and continues to be in an armed conflict with al Qaida, one that is conceptually and legally distinct from the conflict with the Taliban in Afghanistan. It cannot reasonably be argued that the conflict with al Qaida ended with the closure of al Qaida training camps and the assumption of power by a new government in Afghanistan. Al Qaida’s operations against the United States and its allies continue not only in and around Afghanistan but also in other parts of the world. And because we remain in a continued state of armed conflict with al Qaida, we are legally justified in continuing to detain al Qaida members captured in this conflict.

Let me respond to two arguments I often hear as to why it is not correct to characterize this conflict as a war. First, some argue that a legal state of armed conflict can only occur between two nation states and that a state may not use force against a non-state entity. This contention is incorrect. The international rules regarding the right to use force, including those reflected in Article 51 of the UN Charter, do not differentiate between an armed attack by a state and an armed attack by another entity. This makes logical sense: The principle of self-defense permits a state to take armed action to protect its citizens against external uses of force, regardless of the source. It is true that most past wars were between states, or existed within the territorial limits of a single state, but this is an historical fact, not a legal limitation on the concept of armed conflict.

Over a century of state practice supports the conclusion that a state may respond with military force in self defense to attacks by a non-state actor from outside the state’s territory, at least where the harboring state is unwilling or unable to take action to quell the attacks. This includes the famous 1837 case of the Caroline, in which British forces in Canada entered the United States and set fire to a vessel that had been used by private American citizens to provide support to Canadian rebels, killing two Americans in the process. Even law of war treaties that govern the treatment of detainees in armed conflict contemplate conflicts between state and non-state actors across national borders. Common Article 3 of the Geneva Conventions expressly contemplates armed conflicts between a state party and non-state actors. And any country that is party to Additional Protocol I of the Geneva Conventions, which contains additional rules applicable to international armed conflicts and also applies to certain conflicts with groups engaged in wars of national liberation, has acknowledged implicitly that a state may be in an international armed conflict with a non-state actor.

For an explanation of how U.N. Security Council resolutions and the U.N. Charter also contemplate States engaging in armed conflict with non-state actors, please see Thomas Franck’s article “Terrorism and the Right of Self Defense,” available here.

The second argument I hear is that the United States may have been justified in using force against, and detaining members of, al Qaida in Afghanistan, but it is not lawful for us to use military force against or detain members of al Qaida who were picked up outside Afghanistan. This argument seems more motivated by a fear of the implications about the possible scope of the conflict than by actual legal force or logic. We would all be better off if al Qaida limited itself to the territory of Afghanistan, but unfortunately, that is not the reality we face. No principle of international law limits to a single territory a state’s ability to act in self-defense, when the threat comes from areas outside that territory as well. This is not to suggest that, because the United States remains in a state of armed conflict with al Qaida, the United States will use military force against al Qaida in any state where an al Qaida terrorist may seek shelter. The U.S. military does not plan to shoot terrorists on the streets of London. As a practical matter, though, a state must prevent terrorists from using its territory as a base for launching attacks. As a legal matter, where a state is unwilling or unable to do so, it may be lawful for the targeted state to use military force in self-defense to address that threat.

One reason critics vigorously refuse to acknowledge that we have been and continue to be in a legal state of war with al Qaida is that they fear such an acknowledgement would give the United States a blank check to act as it pleases in combating al Qaida. However, recognizing a state’s right to take certain actions in self-defense is not to give a state carte blanche in responding to the terrorist threat. A state acting in self-defense must comply with the UN Charter and fundamental law of war principles. And whether a state legitimately may use force will necessarily require a careful review of the relevant law and specific facts, and will depend on a variety of factors, including the nature and capabilities of the non-state actor; the patterns of activity of that non-state actor; and the level of certainty a state has about the identity of those it plans to target. It also will depend on the state from which a non-state actor is launching attacks – specifically, whether that state consents to self-defense actions in its territory, or whether the state is willing and able to suppress future attacks. Rather than suggest that the use of force against al Qaida, including the detention of al Qaida operatives, is illegitimate, it makes more sense to examine the conditions under which force and detention may be used.

Let me close by emphasizing that I am not suggesting that military force and the laws of war are the ONLY appropriate or legal approach to dealing with international terrorism generally or al Qaida in particular. We recognize that other countries, like the UK, Germany, and Spain, may choose to use their criminal laws to prosecute members of al Qaida. Indeed, the United States itself continues to use its criminal laws to prosecute members of al Qaida, like Zacharias Moussaoui, who find their way inside our own territory in appropriate cases. But we do believe that it was – and continues to be – legally permissible to use military force and apply the laws of war, rather than rely on criminal laws, to deal with members of al Qaida in certain cases, such as those fighting or detained by U.S. military personnel outside the United States.

Armed Conflict With Al Qaeda: A Riposte
by Charles Garraway
[Opinio Juris welcomes Professor Charles Garraway as a guest respondent. Professor Garraway is a Visiting Professor of Law at King’s College, London, an Associate Fellow at Chatham House, and a Visiting Fellow at the Human Rights Centre, University of Essex. He is a former Stockton Professor at the United States Naval War College, Newport, Rhode Island.]

There is an old Irish saying about the foreigner who when asking an Irishman for directions to the nearest town received the reply ‘I wouldn’t start from here!’. Eloquent though John Bellinger is, I feel he is somewhat like that foreigner! However, as he fairly points out, he has no choice but to start from ‘here’, even if the ‘here’ is not of his choosing.

I agree with much of what John Bellinger says. The United States was fully justified in taking action in self defence following the attacks of 9/11. I also accept that both Common Article 3 and both Additional Protocols recognize that it is possible to have an armed conflict against a non-state actor. Indeed, I would go further and say that it is possible to have an armed conflict involving only non-state actors. This is not uncommon in failed state scenarios. However, all these legal instruments envisage such conflicts as being limited to the territory of a single state. Even Additional Protocol I, with its controversial Art.1(4), cited by John Bellinger, merely applies the international law of armed conflict to an internal situation. In declaring a global war against Al Qaeda, the United States broke new ground. But was it necessary?

In so far as Afghanistan itself is concerned, there was clearly an international armed conflict between the Coalition (not just the United States!) and Afghanistan. The Taliban were the de facto Government of Afghanistan and as such represented the state. We would not describe the conflict as limited on our side to the Republican Party (or in United Kingdom terms, the Labour Party). That international armed conflict covered all the hostilities and those taking part in them. For those who actually have to do the fighting, to try to divide the conflict into two parts, one against ‘the Taliban’ and the other against ‘Al Qaeda’ is nonsensical. It was all the same conflict. The only distinction that might need to be made was as to the designation of captured personnel. Were they combatants who were either entitled to prisoner of war status or in some way had disqualified themselves from that entitlement? Alternatively, were they persons who had no right to call themselves combatants and who thus were what I will call ‘unprivileged belligerents’?

I agree with John Bellinger that the United States may detain those who commit belligerent acts against them during that conflict, either as combatants or as unprivileged belligerents, until the end of active hostilities in Afghanistan. This is a view supported by the Supreme Court. I also agree that there is a strong case for maintaining that active hostilities have not ceased in Afghanistan. Although some would argue that ‘unprivileged belligerents’ in the sense that I use the term, fall under the Fourth Geneva Convention and are thus entitled to extra reviews of their detention, I do not agree. An ‘unprivileged belligerent’ may be a ‘civilian’ in Protocol I language but to grant him the privileges of a civilian under the Fourth Convention is, in my view, an abuse. He has lost his protection from attack by taking a direct part in hostilities and whilst, again in Protocol I terms only, that does not make him a combatant, it cannot entitle him to greater privileges than the genuine combatant who can be detained until the end of active hostilities without review solely because of that status.

So far, whilst starting from a different point, my practical conclusions are thus no different. However, where I part company is in two areas. What happens if and when active hostilities cease and what happens to Al Qaeda operatives in other parts of the world?

For the first, I consider that under the laws of armed conflict, the detainees are entitled to release. However, that does not mean that they will necessarily be so released as different legal regimes may apply to prevent that. If any have been convicted of criminal offences, they must serve their sentences. Similarly, there are provisions under human rights law to allow for internment in situations of public emergency – and a post conflict situation usually remains that. The relationship between the laws of armed conflict and human rights law may be uneasy in this area but it is workable. Neither legal system is a suicide pact.

In so far as Al Qaeda operatives outside Afghanistan are concerned, as John Bellinger fairly points out, this would depend on the circumstances. In principle, they are criminals and would be dealt with under criminal law where that is possible. I am relieved that the United States does not ‘plan’ to shoot terrorists on the streets of London but that carefully phrased statement does not say whether the United States considers that it would be legally entitled to shoot terrorists on the streets of London! In my view, it would not, except in the most extreme circumstances. That those circumstances can exist, however, is illustrated by the shootings of the IRA terrorists in Gibraltar. Although the European Court of Human Rights ruled against the United Kingdom in that case, it so decided on narrow grounds and recognized that had the circumstances been slightly different, the shootings would have been justified. However, the justification was under domestic and human rights law, not under the laws of armed conflict.

What 9/11 and its aftermath have shown quite clearly is that, when tackling global terrorism, there needs to be a coherent legal strategy covering the whole spectrum. The answer to 9/11 is not to be found either in the laws of armed conflict or in criminal law but in a combination of both. It has been unfortunate that the advocates of each have tended to increase the divide rather than working towards a common solution where both legal regimes are used in combination, each in their respective areas, to combat the threat. The attempts to use both the laws of armed conflict and criminal law in areas for which they were not designed has damaged both.

Armed Conflict With Al Qaida: A Reply
by Eric Posner
[Opinio Juris welcomes Professor Eric Posner as a guest respondent. Professor Posner is Kirkland and Ellis Professor of Law at the University of Chicago.]

Thanks to Roger for asking me to write a reply to John Bellinger’s post.

I’m going to ask—even though I suspect that John will decline to answer—what is at stake in this argument. The Bush administration wants maximum flexibility in dealing with al Qaida, and understandably. What are the possible constraints? They are all familiar—the U.S. Constitution, Congress, domestic public opinion, foreign public opinion, foreign governments, and so forth. Everyone understands how these factors constrain and shape the American response to al Qaida. Another such constraint is international law. International law is spongy material, however, and it can be interpreted narrowly or broadly. The critics advance broad interpretations, interpretations that would require the U.S. government to grant rights to members of al Qaida that could interfere with anti-terror operations. The U.S. government, consistent with its goal of maximizing its flexibility, prefers the narrowest possible interpretation. As John takes pains to suggest, this does not mean that the U.S. will necessarily use the most aggressive measures available; but it does mean that those measures will always be an option.

The narrowest possible interpretation is, of course, that international law does not apply at all: the U.S. can do what it wants. Members of the Bush administration apparently considered this possibility at one time but the U.S. government has not officially adopted it. Let’s call this the “null position.” It could, for example, have argued that the international laws of war developed prior to al-Qaida-style international attacks, and cannot be considered applicable to them. We can imagine that if the Bush administration had adopted the null position, this would have provoked outrage and concern around the world. But perhaps this outrage and concern would have been worth incurring, because the advantages of being unconstrained greatly exceeded the costs. The outrage and concern would have died out as they always do, but the security benefits would have remained.

There are various possible broad interpretations. One is that the United States simply cannot treat al Qaida as a belligerent. Another is that members of al Qaida are belligerents but they are entitled to broad protections embodied in the Geneva Conventions and customary international law. Suppose (very counterfactually) that the United States had adopted a broad interpretation. Would the rest of the world have applauded? Would they have been more cooperative (perhaps by joining the invasion of Iraq or refraining from pressuring the United States to join the Kyoto treaty or the ICC)? Are there subtle types of anti-terror operations going on right now that are being hampered because foreign states refuse to cooperate with the United States as much as they would if the United States had adopted (and complied with) a broad interpretation?

The U.S. has adopted a narrow interpretation a hair’s breadth away from the null interpretation. John says, “A state acting in self-defense must comply with the UN Charter and fundamental law of war principles.” On the American position, the U.S. is complying with the UN Charter because that document allows it to go to war, in self-defense, against a non-state entity; so no constraint there. As for these “fundamental” law of war principles, well, what are these anyway? Perhaps rules like the principle of proportionality, but no one thinks that even under the null interpretation the United States would blow up a city in order to kill a handful of al Qaida members. So the narrow interpretation advanced by John is, I suspect, roughly the same (as a practical matter) as the null interpretation.

This, then, brings me to the question. If the U.S. gets all the benefits of the null interpretation, why not candidly adopt it? What is the advantage of adopting the narrow interpretation instead? I see three possibilities:

1. Despite what I said above, the narrow interpretation differs from the null interpretation: it constrains the U.S. a little bit. In return for this self-constraint, the world cooperates with the U.S. more than it would otherwise—but, correlatively, only a little bit.

2. Despite what I said above, the narrow interpretation differs from the null interpretation: it constrains the U.S. a little bit. However, the U.S. gains nothing from this self-constraint, or very little, because the rest of the world does not distinguish the null and narrow interpretations—they are equally bad. In this case, the U.S. has erred and should adopt the null interpretation.

3. The world does not care so much about the substance of U.S. actions but it cares deeply about the U.S. lording it over other states, making them feel less than sovereign. Indeed, perhaps many or most foreign governments want the U.S. to exercise no self-constraint. What good does it do them? The narrow interpretation, then, is like diplomatic protocol: substantively empty but nonetheless important as a way of confirming the formal equality of states.

One concrete question that arises from all this is this: Have foreign states retaliated against the United States because it has adopted the narrow rather than the broad position? Would foreign states have retaliated more against the United States if it had adopted the null position? I do not mean “retaliation” literally but as a stand-in for a decline in cooperation of all sorts, including failure to abide by existing international law that benefits the United States.

The State Department and the War on Terror
by Eric Posner
Some of the commenters have been trying to prod John Bellinger to discuss the administration’s internal arguments about the legal approach to the war on terror. Of course, he cannot comment on these matters, but we should not let that stop us from discussing them.

Media reports about the debates about international law within the administration appear to reveal three camps. The OLC took the most extreme pro-executive position, arguing that international law (and domestic law!) placed few or no constraints on the president’s authority. The State Department took the moderate position, arguing that international does constrain the U.S. government, including the Geneva Conventions and related customary international law. The Defense Department, if I remember correctly, seemed mainly concerned about ensuring that the Geneva Conventions apply, but seemed unconcerned about other aspects of international law. But I want to focus on the OLC-State conflict.

The dominant view among academics is that OLC was the villain and the State Department’s “L” was the hero. The OLC misunderstood or unreasonably discounted international law, while the State Department advanced a reasonable interpretation of it, or at least appeared to take it seriously. The OLC was staffed by ideologues or fools, while the State Department was staffed with professionals.

But this seems simple-minded, and it ignores everything we know about how bureaucracies work. Bureaucracies, whatever their virtues and flaws, take their missions seriously, and the personnel of a particular agency tend to internalize these missions. This leads elected officials and political appointees to be suspicious about the bureaucracy’s advice—does it advance the public’s interest or the bureaucracy’s interest?—and to discount the advice of bureaucracies whose mission is in tension with the elected officials’ own political aims. This put the State Department in a weak position for the Bush administration, and it needed to take that into account.

The State Department’s job is to ensure that America’s relations with foreign states remain as harmonious as possible. The State Department always takes dovish positions, urging the president to negotiate rather than fight. It also wants the president to comply with international law because otherwise trouble will ensue—a foreign state will object, international bodies will complain, and State Department diplomats will need to be deployed to smooth ruffled feathers and State Department lawyers to address legal complaints.

The OLC’s job is to protect the president against Congress and the courts—or, if you want, to advance the president’s authority vis-à-vis these institutions. Now this job does not, by itself, imply anything special about what OLC’s position on international law would be. But, in practice, international law tends to be a nuisance for the executive branch, because treaties were entered in the past when conditions were different, and now interfere with current goals. As this problem often arises in domestic litigation, perhaps the OLC has come to see international law as an instrument used by courts to frustrate the executive, and no doubt it blames Congress as well, whose members will, when politically advantageous, pummel the executive for violating international obligations. So one suspects that over time OLC has come to see international law as a device that Congress or the courts use to ensnare the president, and this has generated a skeptical attitude toward international law that is in tension with that of the State Department, which needs to be able to see international law through the eyes of the foreign officials with whom it constantly must deal.

The executive is a “they,” not an “it”; and so the different legal institutions that compose it will have more or less influence on the president’s official legal position at any given time, based on internal bureaucratic politics, the clash of personalities, and other factors that people have to ignore when they are debating the finer points of international law. I wonder whether future historians will reveal that what drove the administration to discount international law after 9/11 was not contempt or indifference for international obligations and foreign countries per se, or even bad legal reasoning, but the assumption that international law is an instrument of Congress and the courts for constraining the executive. This gibes with the view, often attributed to Cheney, that the executive needs to regain power that it lost to Congress and the courts in the 1970s.

To the extent this is right, this institutional agenda would incline the president to heed the OLC rather than the State Department, which would need to work that much harder to make its views felt. To the extent that the narrow interpretations of international obligations adopted by the administration to handle the war on terror turn out to be unwise, the responsibility will lie at least partly with the State Department (its chief, not its lawyers) for having failed to make clear to the president the political costs of being perceived to violate international law, whatever the right interpretation. With respect to the OLC, if its positions had put the president in an untenable position with respect to Congress and the courts, it would have served him poorly, but this does not seem to be the case—so far. Many of the legal positions of the administration have been rejected but others have been sustained, and all in all the administration’s legal approach to the war on terror today is not much different from what it was immediately after 9/11. But if these positions get the U.S. in trouble internationally, that is something for the State Department to have made clear to the president. And what would have gotten the president’s attention was not a treatise on international law but a clear picture of the negative consequences of taking a position on international law that other states did not agree with.

In fact, Colin Powell tried to do this—he argued that American soldiers would be mistreated in future wars if the U.S. violates (that is, “narrowly interprets”) the Geneva Conventions today. But perhaps he did not argue forcefully enough—perhaps he should have threatened to resign. Or perhaps this argument was just not persuasive.

The Role of the State Department: Response to Posner
by Peggy McGuinness
As a State Department alumn (I was a Foreign Service Officer, not a lawyer with L), I want to echo Chris’s comments below and respond to some of Eric Posner’s assertions about the role of the State Department the debate over the legal policy to take as regards the GWOT. Eric says of the State Department:

The State Department’s job is to ensure that America’s relations with foreign states remain as harmonious as possible. The State Department always takes dovish positions, urging the president to negotiate rather than fight.

First, this is wrong as a matter of history, statutory mandate and current policy. The job of the State Department is to support the national security of the United States, represent the United States in its international relations, protect American citizens overseas, and, along with all other executive agencies, uphold the Constitution. There is actually a mission statement that on the State Department website(!). Interestingly, the mission statement refers specifically to the Bush National Security Strategy goals, whose three pillars are diplomacy, development and defense in pursuit of democracy throughout the world. This will mean pursuing harmonious relations when they are in the country’s interest (e.g., strengthening the core defense burden-sharing alliances, participating in free trade regimes) and not pursuing them when they are not (breaking off diplomatic engagement with rogue states, maintaining embargoes).

To be sure, the State Department’s function is primarily diplomatic, but the art of diplomacy often includes a good row. The Pentagon has the job of deploying force in pursuit of national security. But it is centrally the job of the Secretary of State to apply her judgment as to when diplomacy is no longer the appropriate means to promote the national security. Eric assumes that the State Department and its personnel are “always dovish.” The reality is frequently the opposite. As I have heard from many senior military officials over the years, soldiers, who know the horrors of war, are often the least enthusiastic about getting involved in it. For just one example, during the mid-1990s — the period when the Pentagon was suffering from what Richard Holbrooke dubbed the “Vietmalia syndrome” — State took the lead to bring a reluctant Pentagon on board plans to bring U.S. and NATO force to bear to end the civil war in Bosnia.

Second, it is incorrect that State “wants the president to comply with international law because otherwise trouble will ensue.” The State Department does not exist to promote international law – or even the current international legal obligations of the United States – per se. But international law is the framework that protects the work of the Department (the law of diplomacy) and facilitates the participation of the United States in international relations. Negotiating and concluding agreements with other states is one means – a frequently, but not always, efficient means – to carry out our international relations. International law is not an end in and of itself.

Third, as to Colin Powell’s role in the debate over the legal policy, Powell’s complete memo (delivered as a set of comments to the OLC memo since, as I understand it, his office was not included in the discussions between the White House Counsel’s Office and OLC) stated the foreign policy costs of the legal policy (the legal case was made by Taft in a separate memo) quite well. In the section addressing the costs of determining that the GC did not apply to combatants captured on the battlefield in Afghanistan he noted:



It’s hard to be more prescient than that.

Eric is of course right that personalities and closeness to the President (or, importantly in this administration, the Vice President) can affect who wins or loses the policy fight. But these are policy fights among and between those who the President personally appointed to senior positions – not battles within an executive agency between the political appointees and the civil or foreign service.

Finally, as to what prompted the now-well-documented executive power grab orchestrated out of the Vice President’s office, there is nothing inconsistent with arguing the administration was driven by a combination of “contempt or indifference for international obligations” (Gonzales called the GCs “quaint”), “bad legal reasoning” and the view that the “executive needs to regain power that it lost to Congress and the courts in the 1970s.”

Neither OLC nor State is bearing the “costs” for the errors in the policy: The United States is paying the price in a significantly weakened national security.

The State Department and the War on Terror – Another View
by Duncan Hollis
As a regular contributor here at Opinio Juris, it’s been great having John Bellinger guest blogging with us this week and seeing the exchange of ideas prompted by his posts. In addition, I appreciate having additional guest posters such as Eric Posner and Charles Garraway take the time to engage with these complicated issues. In particular, like Peggy and Chris before me, I found Eric Posner’s latest post—The State Department and the War on Terror—provocative. At bottom, Eric seems to suggest that in the bureaucratic tussle over the role of international law in the fight against terrorism, the State Department is at fault for not doing a better job of advocating its position: State, not OLC, should be blamed for the mess we’re in.

Like his work on international law, I found the bureaucratic theory Eric advances here straightforward and even somewhat elegant. But, just as Paul Berman has questioned the assumptions on which Eric’s international legal theory rests, I wonder if some of Eric’s conclusions here might also fall victim to his assumptions about the way the federal bureaucracy operates. In particular, I see three areas where Eric’s theory likely needs revision. [Disclosure: As someone who worked in the Legal Adviser’s Office at the time—and indeed had a small role in the legal debates over the applicability of the Geneva Conventions to the conflict in Afghanistan—let me be clear that I’m responding here with my own personal views and am doing so in a way that I trust does not disclose any internal deliberations of the federal government.]

First, Eric seems to assume parity in inter-agency politics when advising the President on the legal determinants of foreign policy. In reality, however, I’m not sure that assumption holds with this Administration. If you give any credence to the press reports at the time, OLC had access to information and White House decision-makers in ways unavailable to the State Department. For example, as was widely reported at the time, it appears that the President might have made his initial decision about the inapplicability of the Geneva Conventions without State Department involvement. The efforts by then-Secretary of State Powell—which Eric acknowledges—were actually trying to undo, or at least revise, a decision that apparently had already been made. As behaviour psychology teaches us, it is very rare for decision makers to change their mind after they have committed to action, and new contrary information is often discounted in the face of prior views. As such, I wonder if it’s fair to suggest that State and OLC had equal information about White House thinking and equal opportunities to influence such thinking as Eric seems to assume (note, a separate question that I leave to others (Peggy takes this on a bit) is the question of why the playing field wasn’t level and whether this was an isolated incident or evidence of some structural inequalities among the bureaucratic actors).

Second, I’m not sure I agree with Eric’s characterization of OLC’s mission: “to protect the president against Congress and the courts—or, if you want, to advance the president’s authority vis-à-vis these institutions.” OLC actually identifies for itself two alternative missions (1) resolving “legal issues of particular complexity and importance or about which two or more agencies are in disagreement” and (2) “providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.” When I arrived at the State Department, OLC was seen not so much as an advocate for the White House—a job normally ascribed to White House Counsel—but as an internal arbiter of legal issues for the federal government, capable of providing unbiased and objective advice on the state of the law. That is, not players, but highly specialized umpires. Now, it’s possible that OLC’s self-identified mission is not (or is no longer) its actual mission, and the OLC now does function more like the White House Counsel to defend the White House against threats from other branches and from other components of the executive, but I wonder if we shouldn’t be having a conversation about whether that is an appropriate role for it to play?

Third and finally, Eric suggests that the State Department “always takes dovish positions, urging the president to negotiate rather than fight.” I question this assumption. Peggy’s already provided some earlier examples on this, but let me add that I think Iraq actually undermines the dovish claim. Although Powell played a highly visible role in trying to use the UN framework to the U.S. advantage vis-à-vis Iraq, I don’t know that you can say State was dovish on Iraq at the end of the day; on the contrary, in my mind, the State Department ended up being pretty hawkish about the invasion, not to mention its international legality.

Immunities
by John Bellinger
Since readers have no doubt tired of the law of war by now, I would like to change topics and address some of the immunity issues that confront L on a regular basis. Most of you are familiar with the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1330, 1602 et seq., which codified the restrictive theory of the immunity of states and established procedures for bringing suits and enforcing judgments against foreign states (including their political subdivisions and agencies and instrumentalities). A principal purpose of the FSIA was to provide courts with the tools to determine when immunity would apply in suits against foreign states, obviating the need for the Executive Branch to file suggestions of immunity on behalf of foreign states. But L, in conjunction with the Department of Justice, continues to play an important role in providing guidance to our courts on the various immunity issues they confront.

The immunity of foreign government officials is one example. The FSIA does not by its express terms address the immunity of such officials. Several Executive Branch officials who worked on the formulation of the FSIA wrote that it did not deal with such officials when they published a review of pre-FSIA sovereign immunity decisions in the Department of State’s 1977 Digest of international practice. And, the House Report on the FSIA stated that it would have no effect on diplomatic or consular immunity. Nevertheless, in Chuidian v. Philippine National Bank, 912 F.2d 1095 (1990), the Ninth Circuit concluded that the FSIA should apply to foreign government officials as “agencies,” so as to prevent an “end run” around state immunity. In that case, this approach produced the same result -- immunity -- advocated by the Executive Branch, but on a theory -- applicability of the FSIA -- that the Executive Branch did not advance. The point is not academic, because the FSIA treats “agencies” differently than other components of a state and would not, for example, accord immunity to officials for commercial activities undertaken while merely carrying out normal governmental functions. Since 1990, some other circuits have adopted the Chuidian reading of the FSIA, such as the D.C. Circuit in El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668 (1996) and the 6th Circuit in Keller v. Cent. Bank of Nigeria, 277 F.3d 811 (2002). Just this past November, at the request of Judge Pawley of the Southern District of New York, the Executive Branch reiterated the position it advanced in Chuidian - that the immunities of foreign government officials generally derive from federal common law as informed by international custom, rather than the FSIA, in a Statement of Interest filed in Matar v. Dichter, S.D.N.Y. 05 Civ. 10270 (WHP). This approach avoids some of the obvious problems of the Chuidian approach and is more consistent with the position taken by the United States on behalf of its own officials when they are sued abroad.

In addition, certain categories of foreign officials are accorded immunity by more specific legal regimes. Diplomatic and consular officers enjoy immunities under the Vienna Conventions on Diplomatic and on Consular Relations, respectively, bilateral treaties with certain countries, and in some instances customary international law. These sources reflect some of the oldest principles of international law, which recognize the importance of facilitating a sovereign state’s unimpeded representation within each other’s jurisdictions. The Executive Branch does not necessarily play a role in cases involving the immunities of such officers, because we expect the states or officers involved to retain private counsel for the officers’ representation. The State Department does, however, certify the status of diplomatic and consular officers and may work with the Department of Justice to file a statement of interest addressing issues in a case. For example, we have filed to address whether a particular type of action by a consular officer should be regarded as performance of a consular function falling within the scope of a consular officer’s immunity for official acts. We also, when necessary, advise arresting officers and prosecutors of the applicable criminal immunities of diplomatic and consular officers. This advisory practice significantly reduces the need for criminal immunity issues to be litigated in court.

Another basis for foreign government officials’ immunity that is independent of the FSIA is the doctrine of head-of-state immunity. When applicable, it entails full personal immunity from the jurisdiction of U.S. courts. The Executive Branch has a longstanding practice of affirmatively “suggesting” head-of-state immunity to our courts when a person who enjoys the immunity has been served with judicial process. The practice dates at least to the mid-1960s, when such suggestions were made with respect to the South Korean Foreign Minister (1963) and King Faisal of Saudi Arabia (1965). Since then, we have suggested head-of-state immunity in some thirty cases which have dealt with heads of state, heads of government, the spouse of a head of state, and foreign ministers. The doctrine of head-of-state immunity recognizes the unique role played by government leaders and the special sensitivities of exposing them to civil litigation in foreign courts, particularly while they are still in office.

Another immunity that may be accorded to foreign officials is special mission immunity, which is also grounded in customary international law and federal common law (Like most countries, the United States has not joined the Special Missions Convention.). The doctrine of special mission immunity, like diplomatic immunity, is necessary to facilitate high level contacts between governments through invitational visits. The Executive Branch has made suggestions of special mission immunity in cases such as one filed against Prince Charles in 1978 while he was here on an official visit. Kilroy v. Charles Windsor, Prince of Wales, Civ. No. C-78-291 (N.D. Ohio, 1978). This past summer, in response to a request for views by the federal district court for the D.C. Circuit, the Executive Branch submitted a suggestion of special mission immunity on behalf of a Chinese Minister of Commerce who was served while attending bilateral trade talks hosted by the United States, in Li Weixum v. Bo Xilai, D.C.C.Civ. No. 04-0649 (RJL).

Our suggestions of immunity normally respond to requests from a foreign government made after its official has been served with a complaint in a civil action. We usually ask that the request be conveyed through a diplomatic note, with all relevant information and documents, including of course the summons and complaint. If we agree that a suggestion of immunity should be filed, the Justice Department submits one to the court on behalf of the Executive Branch. These filings are typically very short because, once we have determined that an official enjoys immunity, we expect the court to defer to that decision, in accordance with well-established judicial doctrines tracing back to The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812).

Our immunity practice also encompasses international organizations (IOs). Here the governing standard is usually the International Organizations Immunities Act (IOIA) rather than the FSIA. If IOs are sued in our courts we normally expect them, like foreign governments, to appear in court to assert their own immunity. The United Nations is an exception, however. Under Section 2 of the UN Convention on Privileges and Immunities, the UN has complete immunity from suit in the US, including “from every form of legal process.” Officials of IOs generally have official acts immunity, but a small number of officials of the UN and the Organization of American States have full diplomatic immunity pursuant to our headquarters agreements with them.

Finally, back to the FSIA. While it ended the Department of State’s practice of suggesting immunity on behalf of sovereign states, it by no means ended the Department’s participation in litigation against foreign states. Along with the Department of Justice, L works to ensure that the FSIA is interpreted and applied properly, bearing in mind its purpose and the reciprocity and foreign policy issues that could arise from the decisions of our courts. We do not keep track of all of the many cases in our courts that involve FSIA issues, but we participate as amicus when our views are requested by the courts and occasionally on our own initiative or in response to a request by parties to the litigation. Most recently, for example, in response to a Supreme Court request for views with respect to two petitions for certiorari (Nos. 05-85 and 05-584), the Executive Branch argued that the Court should address two 9th Circuit decisions involving whether a Canadian entity — Powerex Corporation — is an “organ” of British Columbia and, therefore, an “agency or instrumentality” of a foreign state under the FSIA.

The sovereign and official immunity rules the United States applies domestically have important implications for how the United States and its officials are treated abroad. Thus immunity outcomes in our courts are relevant not merely because of the potential immediate foreign policy consequences of U.S. exercises of jurisdiction. In cases in which immunity precludes litigation, whether in the United States against foreign states and their officials or abroad against the United States and its officials, we may also — in appropriate cases — look for other ways to help resolve the underlying dispute. In addressing immunity questions we carry out research and analysis of treaties and international practice with the goal of establishing principles that will benefit all countries. Recent developments that we have followed with particular interest have included the February 2002 decision of the International Court of Justice (ICJ) in the “Arrest Warrant” or “Yerodia” case (Democratic Republic of The Congo v. Belgium),
in which the ICJ ordered Belgium to cancel a warrant for the arrest of the DRC’s Foreign Minister after concluding that the Foreign Minister enjoyed absolute criminal immunity and inviolability under international law when abroad. Another case we have examined is the U.K. House of Lords’ decision in the civil action Jones v. Ministry of Interior (of Saudi Arabia), in which their Lordships discussed The Arrest Warrant Case at considerable length as part of a comprehensive examination of the immunity of foreign government officials generally.

As you can see, we have a robust litigation practice involving the immunities of foreign states and international organizations and their respective officials. It is a rich and intellectually rewarding area of work, and I welcome your comments on it

The Bargain Theory of War
by Eric Posner
John’s most recent post raises the question of the nature of the “bargain” theory, as he puts it, of the Geneva Conventions:



I like this theory, but it is worth pointing out that many people do not like it, as it is in tension with the universalistic aspirations of human rights law, and perhaps of the laws of war themselves. It is worth considering whether the bargain theory is really sustainable.

The implicit premise of the bargain theory is that belligerents (including non-state actors) on both sides of a conflict are worse off if they use the most aggressive tactics and weapons at their disposal, than if they engage in mutual restraint. Consider the tactic of dressing like civilians. A military force, especially a guerilla group, can gain much from engaging in this tactic. The soldiers, by disguising themselves as civilians, might avoid being detected until they have obtained a tactical advantage. They also might induce the other side to kill civilians, which may reduce its support among the local population. Also, of course, an impoverished guerilla group saves the costs of purchasing and maintaining uniforms. I believe that the German army, during the Battle of the Bulge, adopted this tactic in order to penetrate allied lines. But regular armies tend to prefer to wear uniforms for a variety of practical reasons, and so dressing like civilians is mainly a tactic of insurgencies and guerillas.

If soldiers on one side only can use the tactic of disguising soldiers as civilians, then that side gains a militarily advantage. So predictably soldiers on the other side would adopt this or similar tactics in return. The result is that neither side will gain an advantage, while the war will be generally more destructive, with more civilians killed as a result of the confusion about who is a combatant and who is not. The laws of war thus prohibit soldiers from disguising themselves as civilians, an effort to give both sides an incentive to choose less destructive rather than more destructive military tactics. This logic can be extended to many of the other rules in the Geneva and Hague Conventions, as well as the general principles of the laws of war.

But if this is true, it necessarily follows that when one side breaks the rules, the other side must respond in kind. In the current conflict, the United States retaliates against al Qaida, and on John’s theory, the Taliban, for their violations of the laws of war, by depriving captured combatants of POW status—which seems more reasonable and effective than responding in kind by dressing American soldiers in civilian clothes, which in any event is prohibited (as well as pointless). The lack of command structure, if that is the case, is also a key point: if there is no command structure, then American forces cannot expect the enemy to reciprocate America’s own self-restraint, as required by the laws of war. So, again, under the bargain theory, there is no reason for the U.S. to extend POW protections to enemy combatants.

The logic extends farther than the position of the American government, however. The bargain theory, as described by John, gives the victim of law-of-war violations (the United States, here) only one, rather weak tool, for retaliation—elimination of POW status, plus the right to punish war criminals if they are captured. Yet the logic of the bargain theory implies that if this tool is too weak, the United States ought to be allowed to do much more. Put differently, if al Qaida and the Taliban have violated their side of the “bargain,” why should the United States comply with its side of the bargain? Why should the United States feel bound by any of the laws of war in the conflict in Afghanistan, including common Article 3 and, for that matter, the traditional law-of-war principles of proportionality and necessity? If the United States—and other countries, too—made clear that they would retaliate against law-breaking states and non-state entities, by refusing to extend any of the protections of the Geneva Conventions to the law-breakers, wouldn’t this threat in the long run reduce, rather than increase, the costs of war, by more effectively deterring belligerents from breaking the laws of war? This is what the bargain theory implies.

Of course, the Geneva Conventions do not permit such reprisals. They give the bargain theory only limited play by restricting the ways that a belligerent can retaliate for law-breaking on the other side. History, on the other hand, shows that tit-for-tat retaliation for violations of the laws of war has been common. If the bargain theory is accepted, the Geneva Conventions are open to criticism, for excessively restricting reprisals, and the effort to interpret them aggressively as reflecting the bargain theory to a greater extent than they explicitly do, can be defended as bringing them into line with historical practice and the moral logic of the bargain theory.

This is, I think, the source of the uneasiness that many people feel about the bargain theory in general, as well as the type of argument that John has made. It also explains why so many people reject the bargain theory and argue that a belligerent must comply with certain constraints regardless of how the other side acts. This kind of thinking makes no sense from the perspective of the bargain theory because it simply gives the other side a license to do whatever it wants, so that civilians will be worse off in the long run. On the other hand, no government seems willing to explicitly endorse the bargain theory all the way down, suggesting that the bargain theory, at some level, is not politically sustainable.

The reason, then, that some advocate treating all captured belligerents as POWs, and the like, is that they implicitly reject the bargain theory and embrace instead a universalistic interpretation of the laws of war, according to which people have certain basic rights regardless of whether they take the bargain. Ironically, John does not reject this universalistic view: he simply argues that those basic rights are more limited than his critics say they are. But, if this is right, then the argument should be about the scope of the bargain theory, and the location of the floor—those rights that one cannot give up no matter how bad one’s conduct—and John cannot expect his critics to accept the bargain theory without further defense.

Consider again the quotation with which I started. The quotation above sounds reasonable (and I believe it is reasonable) but the choice made by, say, a Taliban soldier is either to obey his commander or not obey his commander, which I suspect is not a choice at all. An ordinary soldier cannot be expected to decide to purchase a uniform and wear it in defiance of the orders of his superior, and while his comrades continue to wear civilian clothes. (And what uniform would he buy, anyway?) So it is the Taliban leadership that decides whether to accept the bargain, while the low-level soldiers bear the consequences of the leadership’s choice. Such is always the case in war, but this is another reason why many readers will reject the bargain theory in the hope that, somehow, the universalistic view can be made to stick.

Unlawful Enemy Combatants
by John Bellinger
In this post I would like to take issue with the suggestion that the United States invented the concept of “unlawful enemy combatants” to avoid providing protections under the Geneva Conventions to al Qaida and Taliban detainees. I frequently hear the charge in Europe and elsewhere that this term has no basis in national or international law, and I fear that this has become conventional wisdom among critics of U.S. policy. In fact, the distinction between lawful and unlawful enemy combatants (also referred to as “unprivileged belligerents”) has deep roots in international humanitarian law, preceding even the 1949 Geneva Conventions. The Hague Regulations of 1899 and 1907 contemplated distinctions between lawful and unlawful combatants, and this distinction remains to this day. As Professor Adam Roberts told the Brookings Speakers Forum in March 2002, “There is a long record of certain people coming into the category of unlawful combatants— pirates, spies, saboteurs, and so on. It has been absurd that there should have been a debate about whether or not that category exists.”

I frequently hear the question, “Why not consider all captured belligerents, lawful or unlawful, ‘prisoners of war’?” It is not immediately clear why some advocate such a move. Prisoners of war can be held until the cessation of hostilities, and, ironically, many of those advocating for POW status for Taliban and al Qaida forces object to that basic principle. Moreover, I question whether those who insist that the Taliban and al Qaida be treated as POWs have thought through the practical consequences. Do proponents of POW status for al Qaida detainees expect them to be provided with all the benefits accorded to POWs under the Third Convention, despite their failing to follow the laws and customs of war?

More critically, though, the drafters of the Third Geneva Convention were aware that they were not drafting the treaty in a way that would ensure that everyone who took up weapons on a battlefield would receive POW status. To begin with, Common Article 2 of the Conventions limits the application of the vast majority of provisions, including protections to be provided to POWs, to armed conflicts between two or more High Contracting Parties. Thus, POW status is limited to belligerents engaged in international armed conflict. The U.S. Supreme Court has decided that the U.S. conflict with al Qaida is governed by Common Article 3. Because the Court has found that the conflict with al Qaida is not one between nations, but instead a Common Article 3 conflict, al Qaida detainees are not entitled to POW protections under the Third Convention. This point has been recognized by posters earlier this week, such as Marko.

Moreover, Article 4 of the Third Convention affirms the long-standing distinction between lawful and unlawful combatants because it limits “prisoner of war” status to lawful combatants, such as members of the regular armed forces of a Party to the Convention. The underlying concept here is simple –unlawful combatants should not be provided combatant immunity during wartime, and should be held criminally accountable for their acts of war. By contrast, AU Professor Robert Goldman explains that lawful combatants have combatants’ privilege, which “immunizes members of armed forces from criminal prosecution by their captors for violent acts that do not transgress the laws of war, but might otherwise be crimes under domestic law.”

An examination of the nature of al Qaida and its members results in the conclusion that they are not entitled to POW status under Article 4. Al Qaida members are not members of the armed forces of a party to the Geneva Conventions, meaning that they are not entitled to protection under Article 4(A)(1). Al Qaida has also failed to adhere even to the most fundamental tenets of the laws of war—including the critical need to maintain distinction between civilian objects and military objectives—and have blended into the general population, deliberately choosing not to wear fixed distinctive signs or carry arms openly. Under such circumstances, the United States is correct in denying al Qaida fighters the protections owed prisoners of war.

Although most international legal scholars agree that al Qaida detainees are not entitled to POW status, I recognize there is more debate regarding the status of the Taliban detainees. The Taliban did not display the indicia of regular “armed forces of a party” for purposes of Article 4(A)(1). The armed forces of Afghanistan ceased to exist as such with the dissolution of former President Mohammad Najibullah’s armed forces in the mid-nineties, and were replaced by a patchwork of rival armies. Although the Taliban were the most powerful of these rival armies at the time of the U.S. invasion, it is does not appear that they ever rose to the level of the official armed forces of Afghanistan. Nor were they “regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power,” entitled to POW protection under Article 4(A)(3). The Taliban do not possess the attributes of regular armed forces, as they do not distinguish themselves from the general population, or conduct their operations in accordance with the laws and customs of war.

The Taliban is better conceptualized as a militia belonging to a Party to the conflict, which would be eligible for POW protection under Article 4(A)(2) if they used a command hierarchy; wore a uniform or distinctive sign; carried arms openly; and observed the laws and customs of war. The Taliban, however, fail to meet at least two of these conditions: specifically, the Taliban do not distinguish themselves from the general population, nor do they obey the laws and customs of war. Contemporary news reports from the Allied invasion of Afghanistan indicate that the Taliban dressed like civilians, and in fact used this similar dress to blend into the civilian population to evade capture. Worse still, they have targeted and continue to target civilians as such in violation of the laws of war, having adopted suicide bombing techniques similar to those used by al Qaida. These types of transgressions explain why the United States believes that Taliban detainees do not enjoy POW status under the Third Convention.

Assuming that the Taliban were the armed forces of Afghanistan, however, they still do not qualify for POW status because they fail to meet many of the fundamental criteria for POW status under the Third Convention; specifically, the Taliban lacked the command structure, distinctive uniforms, and compliance with the laws and customs of war which characterize regular military forces. Some have argued that these additional factors would not preclude POW status under Article 4(A) (1) because that provision omits the list of requirements found in Article 4(A) (2). This is a difficult question, but as Jean Pictet’s commentary on the Third Convention explains, it seems the drafters of the Convention had an expectation that the armed forces of a party would generally meet the requirements contained in Article 4(A)(2), and it’s unlikely they envisioned granting POW status to groups that openly flout these requirements.

In separating lawful and unlawful combatants, the Third Convention creates a basic bargain for those engaged in an international armed conflict. Engage lawfully in combat and, if captured, you will receive the comprehensive treatment protections of the Convention. Ignore the laws of war, and you cannot seek the status given to lawful combatants. POW status is perhaps best seen then as an incentive to follow the rules in armed conflict. It also is a way to protect civilians more effectively: when combatants masquerade as civilians to mislead the enemy and avoid detection, civilian suffering increases as a tragic consequence of the failure of these combatants to adhere to the fundamental law of war principle of distinction between combatants and the civilian population.

Long before the war against al Qaida began, the United States forcefully insisted that this incentive to follow the rules remain strong by limiting these extensive treatment protections to those who generally follow the rules of warfare. President Reagan decided not to submit Additional Protocol I of the Geneva Conventions to the Senate for ratification in part because he feared that the treaty contained a disincentive to follow the laws of war by extending combatant status in certain cases to those who do not follow the rules. As former Department of State Legal Adviser Abe Sofaer explained, “Inevitably, regular forces would treat civilians more harshly and with less restraint if they believed that their opponents were free to pose as civilians while retaining their right to act as combatants and their POW status if captured.”

I believe that the bargain of the Third Convention works: follow the laws of war to gain their robust protections and privileges. Those who believe in the rules should insist that incentives to follow those rules not be weakened.

I wanted to add a final thought about the recent Israeli Supreme Court decision in Public Committee against Torture in Israel v. Israel, where it has been reported that the Court concluded there was no category of individuals labeled unlawful enemy combatants. That is not quite what the court held. Instead, the Court held that combatants not in regular armies or militias meeting the requirements of Article 4(A)(2) of the Third Convention were in fact civilians, who lost their comprehensive protections against attacks, “for such time as they take a direct part in hostilities.”

To begin with, it’s important to stress that the Israeli Court largely agreed with our views regarding treatment of terror groups like al Qaida. We agree with the Court that these types of combatants were not entitled to protection from attack regardless of their categorization, nor were they entitled to prisoner of war status if detained. The Court did conclude that Article 51(3) of Additional Protocol I was customary international law, which limited the circumstances in which a “civilian combatant” could be considered a legitimate military target. While we agree that there is a general principle of international law that civilians lose their immunity from attack when they engage in hostilities, we disagree with the contention that the provision as drafted in AP I is customary international law. In fact, the Israeli Court’s opinion appears to recognize that point inadvertently by highlighting the lack of international consensus regarding the meaning of both “for such time” and “direct part in hostilities.”

More centrally, though, most of the sources cited by the Court support our contention that “unlawful enemy combatant” is a category of combatant, distinct from civilians, recognized under international law. Kenneth Watkin, Richard Baxter, Jason Callen, Robert K. Goldman , and Michael Hoffman, all of whom the Court cites, agree that unlawful combatants exist as a legal category, although they may disagree somewhat with us and each other about who qualifies for membership in such a group, and what the legal consequences are, such as whether unlawful combatants are entitled to protection under the Fourth Convention. My point here is that even those that disagree with us as to the legal framework for detaining al Qaida and Taliban detainees should acknowledge that we are on legally firm ground in using this construct as the basis for our framework.

In closing, my sense is that the insistent opposition to our use of the term “unlawful combatant,” despite its clear lineage in international law, is motivated by a fear that acknowledging this category might place the detainees in a legal black hole. While it certainly could be the subject of a policy debate whether we should grant POW status to detainees not legally entitled to it, saying that the Taliban and al Qaida detainees are not criminals on the one hand, nor POWs or protected persons on the other does not mean they do not have significant legal protections. Following the Supreme Court’s decision in Hamdan, all detainees in the conflict against al Qaida and the Taliban must be treated in accordance with Common Article 3 of the Geneva Conventions. They are also protected by the blanket prohibitions on torture and cruel, inhuman or degrading treatment or punishment found in U.S. law. And the Department of Defense recently promulgated a new directive on detention operations and a field manual governing interrogation that provide clear direction to the U.S. Armed Forces regarding compliance with these important norms. Nevertheless, critics prefer to strain to force the detainees to fit into the more traditional legal categories of common criminals or POWs. I am more inclined to agree with the conclusions of the OSCE Rapporteur on Guantanamo, Anne-Marie Lizin, the President of the Belgian Senate, that there is “incontestably some legal haziness” regarding the legal status of individuals captured in the course of military operations against international terrorists and that further legal work needs to be done to clarify the status of these kinds of combatants.

Some Questions About Unlawful Combatants
by Michael Ramsey
[Opinio Juris welcomes Professor Michael Ramsey as a guest respondent. He is a professor of law at San Diego School of Law and an expert in foreign relations law.]

My thanks to Opinio Juris for setting up this fascinating exchange and for inviting me to participate, and to John Bellinger for taking time to provide such thoughtful posts. As somewhat of an outsider to this area (my principal field is the constitutional law of foreign affairs), I find that I have more questions than answers.

Let’s assume there is a category of people who take active part in combat but are not covered by the Third Geneva Convention (because they fail the test of its Article 4) or by Common Article 3 (because the conflict is “of an international character”). It seems fairly inescapable that there is such a category (whether or not Taliban or al-Qaeda fighters are in it). Unless they are covered by the Fourth Geneva Convention, fighters in this category aren’t protected by the text of the Geneva framework. It also seems inescapable that, prior to Geneva, the extensive protections contained in the Fourth Convention did not apply to irregular fighters (that is, those who would fail the Article 4 test). The Fourth Convention’s text seems unclear on whether it covers such persons, since it covers “civilians” (which might or might not include irregular fighters). Do commentators critical of the U.S. position contend that the Fourth Convention’s signatories in 1949 intended to extend its elaborate protections to irregular fighters, contrary to traditional practice? Is that how the Fourth Convention was interpreted immediately after it was ratified? If not, what theory of interpretation allows us to be so certain of today’s meaning? (And for that matter, even if the intent was clear in 1949, are we certain that treaties’ meanings can’t evolve to adapt to new circumstances, as is often said of the Constitution?) These aren’t meant as rhetorical questions, as I haven’t studied the history of Geneva, but I have also not seen much reliance upon it.

On the other hand, for Mr. Bellinger’s side, if the Fourth Convention does not cover persons in this category, doesn’t that create a strange asymmetry: irregular forces in a civil war have the protections of Common Article 3, but (if the U.S. position is right) irregular forces have no protection at all in an international conflict? Is there any evidence that Geneva’s signatories wanted to give more protection to irregulars in civil wars than otherwise? Is it even plausible that they could have had this intent – what could possibly motivate it? Isn’t the asymmetry better explained either by saying that the Fourth Convention applies to irregulars (which you don’t want) or that the Common Article 3 protections were already understood by Geneva’s drafters to apply in international conflicts as a matter of customary law? If the latter explanation is true, though (and I must say, off the top of my head, it seems pretty plausible), then the Taliban and al Qaeda necessarily have at least the Common Article 3 protections, whether or not that Article itself technically applies to them. And if that is right, didn’t the Supreme Court get it basically right in Hamdan, whether or not it was correct on the “not of an international character” characterization of the al Qaeda conflict? Of course, it may matter for U.S. domestic law whether the protections come from the treaty itself or from customary law, but it should not matter to the United States for international purposes. So I guess I’m puzzled as to how the U.S. can maintain that the Taliban lack the protections of the Fourth Convention without acknowledging a customary law amounting to the substance of Common Article 3 for all fighters (including al Qaeda) in international conflicts.

In sum, for both sides: isn’t it plausible that Geneva’s drafters envisioned a middle ground between your claims – all fighters would get the substance of Common Article 3 protections, in international conflicts from pre-Geneva customary law and in non-international conflicts because Common Article 3 extended it to them; and fighters who complied with the requirements of Article 4 of the Third Convention would get that Convention’s additional protections?

Unprivileged Belligerents (Or Illegal Combatants)
by Ken Anderson
[Opinio Juris welcomes Professor Ken Anderson as a guest respondent. Professor Anderson teaches at American University's Washington College of Law. He also is a Research Fellow at the Hoover Institution at Stanford University. He regularly blogs at his Ken Anderson's Law of War blog]

I am in agreement with John’s characterization of the legal and historical-legal status of the category of unprivileged belligerency. I would add just a couple of points on that issue and then use it as a springboard to a slightly broader comment on what appears to be the evolution of the administration’s position on how legally to regard detainees taken in counterterrorism operations.

I confess that I was quite astonished the first time I heard challenges made following 9-11 to the very idea of the legal category of illegal combatant or unprivileged belligerent. It is so long grounded in the laws and customs of war that it was very puzzling to me how anyone could raise a question about the existence of the category, save as a purely strategic attack on holding detainees. As I read further into these arguments, I understood that in part this arose from journalists, lawyers unfamiliar with the law of war, and others who mistakenly believed that the law of war existed in total in the four Geneva Conventions, and perhaps Protocol I. So, for example, an editorial in the Economist a couple of years back announced breathlessly, if ill advisedly, that the terms “unprivileged belligerent” or “illegal combatant” were nowhere to be found in the four Geneva Conventions: well, neither are the term “war criminal” or “war crime,” but of course they have an ancient legal meaning.

The idea in particular that if one flunks the test of the Third Convention, one is thereby a civilian protected under the Fourth Convention makes no sense either historically or as a matter of legal incentives. One has a status if one flunks the test of legal combatancy under Geneva Three. A person who takes active or direct part in hostilities is not a civilian, the person is a combatant. Having flunked the test for legal combatancy under Geneva Three, article 4, the person remains a combatant – but an illegal one. The charge is sometimes made that if the person who flunks Geneva Three is not a civilian under Geneva Four, then that would mean that a person lacked a status altogether. On the contrary, the person who flunks Geneva Three has a very particular status – the status of unprivileged belligerent. It surprises me particularly that the argument would now be raised that illegal combatants are actually civilians under the Fourth Geneva Convention when, as I recall discussions among friends and acquaintances in the prosecutor’s office in the Yugoslavia Tribunal in the mid-90s, such an argument must surely be unavailing in the case of defendants in that tribunal because it would increase incentives to violate the laws of war.

The fundamental reason why these kinds of ungrounded legal arguments have gained much ground in the past couple of years is, however, not simply a lack of knowledge, as in the case of journalists or lawyers not expert in the laws of war. It stemmed from a wrong assertion by the administration that the Geneva Conventions did not apply to the war on terror. This was untenable from the beginning – to announce that the war on terror was a war, but then to announce that the laws of war did not apply. The administration was forced to backtrack – but by then the damage was essentially done, with the result that not just the Bush administration, but the US government, including its military lawyers and others in government, had essentially lost “ownership” of the laws of war. Given the opening of this error, it allowed a wide variety of parties to assert less legally grounded reinterpretations of the laws of war and have them be taken credibly. By the time the administration moved to admit it was wrong, momentum in declaring the meaning of the laws of war had moved outside any precinct of the US government.

Nonetheless, the basic assertion of unprivileged belligerency is correct, insofar as the situation is one of war. The question is not the category of unprivileged belligerency, but instead who is entitled to make such a legal determination and what it means. Again, much criticism has been leveled at the US government for stating that the president or secretary of defense could make such a determination. As a policy matter, I have always agreed that the proper way to resolve these status issues was in accordance with the quick, confined process that the US military had established in its 1990s regulations, calling for a three officer panel in cases of doubt – and at the time, I never had any impression that any human rights group or the ICRC had any doubts as to the validity of those regulations as meeting the obligations of Article 5 of the Third Geneva Convention – certainly those regulations went beyond what the British did in the First Gulf War in holding Article 5 hearings, and I am unaware of any criticism at the time of those hearings. I believe the administration was wrong as a matter of policy not to follow those regulations and instead proceed by designation. Nonetheless, as a strictly legal matter, a literal reading of Article 5 does not require a hearing by a tribunal in every case to determine status – but only in cases of doubt, and it does not, on a strict reading, require that the matter of doubt be determined by a tribunal, either. To say that the administration violated Article 5 as a legal matter was, and is, simply wrong as a matter of the legal text.

If one proceeds by the law of war route in dealing with Al Qaeda detainees, then one ought to proceed as follows: Detainees would be designated as illegal combatants by a hearing and detained; the terms of detention, including interrogation, would be governed by Common Article Three; trial for crimes committed as an unprivileged belligerent would be conducted under Common Article Three in accordance with the customary law minimum procedures found under Article 75 of Protocol I, which article has been acknowledged by the United States as customary law despite its non-acceptance (correct, in my view) of Protocol I – but which is far more minimal in its trial requirements than what the US has put in place in the form of military commissions.

Where things are moving under the Military Commissions Act is different, however, and that Act seems to reflect a general sense that the paradigm is not always war, either practically or legally. The MCA does not use the traditional definition of a combatant – one who takes active or direct part in hostilities – as its fundamental touchstone for liability. It is not especially focused upon combat as such. Rather, the MCA uses definitions of terrorism and terrorist often taken out of domestic anti-terror laws – in particular, concepts such as “material support” of terrorism, and related concepts that, while making much sense as a matter of domestic criminal law, are not grounded in the laws of war. They are getting at quite different forms of conduct that those of combatants, legal or illegal.

The reason for this, quite simply, is that we are collectively coming to understand that much of what we call counterterrorism is not and will not be war. The concepts of the laws of war – grounded in combatancy, legal or not – will not apply very effectively to activities which will often be about conspiracy, material support, financing, sheltering, and so on. At the same time, there is a wide recognition – I hope – that counterterrorism will be as ineffective as it was up until 9-11 if it flips back into the law enforcement-only mode of reactive, post-hoc enforcement. There will be parts of counterterrorism which will be real war, on real battlefields – but it will only sometimes be directed against terrorists as such, and more often, as real warfare, directed against states that harbor terrorists or states that threaten to supply them with weapons of mass destruction. There will also be parts of counterterrorism which will be about genuine law enforcement, Miranda warnings, charges filed, prosecutions in regular courts. But there will also be – and this is what we are struggling to figure out – a broad middle ground of counterterrorism activity which is neither law enforcement (we are not looking to arrest people, but to kill them), nor war (the use of violence does not rise to the legal definition of armed conflict). It includes our questions about surveillance, detention, abduction, targeted assassination, destruction of terrorist property, interrogation, and ultimate release, and many other things. We do not have a worked out body of law to govern this area, either domestically or internationally. This is, however, where some of the most important matters of counterterrorism policy in the future are likely to take place.

I started this post in quite a different place – the longstanding legal category of unprivileged belligerency. I have wound up calling for a new body of domestic counterterrorism law, to address the questions that are not well addressed by the law of war, because, as we are gradually recognizing, forcing the legal paradigm of the laws of war to cover situations that are often not really war does not finally work. The MCA in part begins to recognize this, but in a passive, unstated way – in its definitions of status such as material support, for example. The laws of war work pretty well when applied to actual war (leaving aside the monumental problem that John and Eric have both addressed, which is what happens when you decide that the laws of war are not really reciprocal, and only one side really has to follow them) but they do not work especially well when applied to counterterrorism that is not really war, but something else. It is a mistake to try and reshape the laws of war to fit that something else, and it would be a far better idea to establish something new.

Can the President Change the Laws of War?
by Julian Ku
This exchange between John Bellinger and our terrific group of guests and commenters has been so fascinating that I hesitate to intervene. But the last few posts have moved me to pose a fundamental domestic U.S. law question to John and our readers. Who has the authority to interpret or re-interpret the laws of war on behalf of the United States?

John and many of our commentators seem to have found some common ground: the existing law of war framework, especially as defined in the Four Geneva Conventions, doesn't quite fit the type of conflict that the U.S. is fighting against Al-Qaida.

Let's assume for now that this view is correct: that the Geneva Conventions don't technically apply, and that the traditional customary law of war doesn't make sense when applied to the U.S.-Al Qaida conflict. How should the U.S. government go about trying to change or adapt the customary law of war to deal with this new kind of conflict? And, as a U.S. law matter, which branch of the U.S. government should go about defining and developing this new type of law of war?

In a comment to Mike Ramsey's post below, Marty Lederman denigrates John Yoo's advice to the White House that the President should contest the application of Common Article 3 to Al-Qaida and Taliban detainees. But it doesn't seem that odd to me.

After all, what if, for some of the reasons advanced by Professors Anderson and Garraway, the President decided to take a position at odds with prevailing customary law principles because he believed this was a new type of conflict to which traditional customary law did not properly apply? Doesn't he have the domestic authority to adopt a new interpretation of customary law, at least for those matters within his constitutional authority that do not conflict with existing treaties and statutes?

And if he does not have such authority, who does within the U.S. system? Congress? The Courts? But even if those branches do have that authority, why can't the President adopt a new interpretation of customary law unless and until the other branches overrule him? Given that, as Eric Posner notes, the Executive Branch itself is deeply divided and multi-headed animal, why shouldn't that branch get to take the first cut at developing an new interpretation of customary law? And if much of international law is explained as bargaining between states over compliance, as Eric also suggests, isn't the President the best-positioned institution to administer this bargaining process?

There is another possibility, of course, which some of our readers might support. It is possible that the President is bound by customary law so strictly that he does not have the domestic legal authority to adopt any interpretation that departs from other countries' understanding of customary law. Indeed, some might even say that Congress cannot ever depart from customary law as well. But I seriously doubt this is correct as a matter of U.S. law. And I think it is fair to say that there is no academic consensus on this question, and that there is at least some jurisprudence pointing the other way.

So I would be curious if John has any views on this domestic law debate? Is the executive branch adequately equipped to develop and define a new type of law to fit a new kind of conflict? Is that how, in part, he sees his duties as State's top Legal Adviser? And if not, who or what institution in the U.S. system should play that role?

Immunities and the Development of International Law
by Eric Posner
John Bellinger’s latest post raises two interesting questions, the first about the function of immunities and the other about the role of the executive branch (specifically, the State Department) in litigation against foreign interests.

The immunities rules straightforwardly recognize that what we traditionally regard as core features of judicial competence do not extend, at least not fully, to foreigners. We don’t usually want American courts adjudicating disputes between Chinese citizens and the Chinese government, or between American citizens and the Chinese government, even when it is clear that the Chinese government has injured the citizen in question, in a manner that violates American law or international law. There are, of course, exceptions, but the immunity rules remain generous.

Well, why, anyway? The answer is usually put in terms of fear of offending foreign sovereigns, but governments offend foreign governments all the time, and a general concern about offending foreign sovereigns is too broad to explain why there are exceptions to the immunities rules. Another standard answer is that courts should avoid becoming “entangled” in foreign relations, but again courts become entangled in foreign relations, at least potentially, whenever a foreign citizen is involved in litigation, in whatever capacity, and no one thinks that courts should refrain from taking jurisdiction in all cases that involve foreigners, or that could touch on foreign interests—indeed, courts have an obligation to take jurisdiction when foreigners are plaintiffs and they have a valid claim under American law.

The answer, as it so often does in international law, lies in the notion of reciprocity. The United States sees advantages in subjecting foreign governments (officials, instrumentalities, etc.) to American law and American judicial process in many situations, but also prefers that the American government (officials, instrumentalities, etc.) be immune from foreign law and foreign judicial process in many situations. The trick has been to determine areas of overlapping interest, where reciprocal acquiescence in foreign judicial process is in the joint interest of the states in question. Commercial activity turns out to be an obvious such area: commercial norms (these days) are relatively uniform, and foreign corporations would have trouble entering contracts if they were not subject to local judicial process. But in all the areas where governments disagree as a matter of policy, the infliction of judicial process on a foreign leader because he violates domestic norms embodied in domestic law, is conceptually no different from applying economic sanctions, diplomatic pressure, and so forth, against states whose behavior we do not like—subtle and difficult tasks for which the courts, applying general domestic law, are unsuited.

An implication of this is that, to the extent that domestic litigation implicates foreign interests, courts should be highly sensitive to the expressed views of the executive branch, which can take account of—as John notes—the risk to American interests if the foreign state retaliates either in kind, by subjecting Americans to judicial process who would formerly have been immune, or along some other dimension of international cooperation. This is true, regardless of whether the FSIA or some other immunity rule applies, and even regardless of whether there is a foreign defendant. It needs to be acknowledged that this weakens the rule of law. If the executive branch has a large role in litigation that affects foreign interests, outcomes will reflect policy and political considerations to a greater extent then if it does not. But this is the price one needs to pay in order to conduct foreign relations in a sensible manner. Courts have no ability to evaluate whether taking jurisdiction over a foreign sovereign or foreign official in a given case is likely to make Americans more or less vulnerable abroad.

I should note parenthetically that the ways in which the U.S. government and foreign governments, over the years, have intervened in order to control the way that courts take jurisdiction when foreign interests are involved is a clear example of how executive action contributes to the development of international law. So I think Julian Ku’s earlier post is right on the mark. This is, of course, not to deny that if foreign states reject the U.S. executive branch’s assertions (always advanced as “interpretations”) about the proper rules governing immunities, those assertions will not in the end affect international law. This process is no less important when treaties are involved, and so the interesting question is whether over the next years—as China and Russia and other countries struggle with terrorism—foreign states will acquiesce in the current American interpretation of the Geneva Conventions, or reject it. The United States presumably is prepared for future cases where Americans who join al Qaida and other terrorist groups are subjected to Guantanamo Bay-like treatment by foreign states, and will presumably not object when those foreign states say that they are merely adopting the American interpretation of the laws of war. The laws of war will “develop,” as they should, so as to be more appropriate for types of threats and conditions not anticipated by earlier generations (as Ken Anderson notes), and at the hands of governments as well as courts, domestic bodies as well as international bodies.

For an academic argument that judicial deference to the executive branch in foreign relations litigation can be derived from the policies underlying Chevron (written with Cass Sunstein), see [email="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=901999"]here[/email]. For a critique of this argument by Derek Jinks and Neal Katyal, see here.

This is what that messed up link should be in the above post.

Judicial Review and the War on Terror
by David Sloss
[Opinio Juris welcomes Professor David Sloss as a guest respondent. Professor Sloss is an expert on foreign relations law (among other areas) and he teaches at Saint Louis University School of Law. His recent articles can be found here.]

I want to thank John Bellinger for his recent posts on this blog. He has presented a very thoughtful and articulate legal defense of the government’s policies in the war on terror. Much of his legal analysis is persuasive. Even so, I am not wholly convinced. Rather than focusing on the details of particular legal arguments, though, I’d like to approach these issues from a slightly different perspective.

One reason for skepticism about some of the government’s legal claims is that the government has consistently attempted to insulate its legal arguments from judicial review. Numerous petitioners have brought a variety of claims in U.S. courts, challenging various aspects of the government’s policies on the grounds that those policies are inconsistent with U.S. obligations under international law. The government has consistently tried to prevent the courts from adjudicating the merits of these claims, both by introducing legislation to limit the jurisdiction of federal courts (the Detainee Treatment Act and the Military Commission Act) and by raising various jurisdictional and procedural objections in concrete cases. If the government really believes in the merits of its own legal positions, why is it afraid to subject its policies to legal scrutiny in a judicial forum? Indeed, if the government wants to persuade the rest of the world that the United States is genuinely committed to complying with its international legal obligations, it should welcome the opportunity to submit its policies to judicial scrutiny.

No doubt, some readers will object that it is unrealistic to expect the government willingly to subject its policies to judicial scrutiny. In fact, though, historical materials demonstrate that there was a time when the U.S. government invited judicial scrutiny of its wartime foreign policies. In the period between 1793 and 1796, France was at war with England, Spain and other European powers. The United States adopted a declared policy of neutrality. But the United States had previously entered into treaties with France that obligated the U.S. to adopt a pro-French tilt in certain respects. During this period, numerous private claimants filed claims in U.S. courts that presented tensions between the United States’ treaty commitments to France and its legal obligations as a neutral state. The claims generally centered around the activities of French privateers who had captured British and Spanish merchant ships. In the typical case, a British or Spanish ship owner (or a consular official representing the owner’s interests) would file suit against a French privateer, seeking restitution of a captured vessel, and alleging that the privateer had infringed U.S. neutrality. In response, the French privateer would invoke the 1778 treaty between the U.S. and France as a defense.

These cases from the 1790s are similar to modern war on terror cases in one key respect – in both sets of cases, questions of private rights are intimately bound up with questions of international law and U.S. foreign policy. In the 1790s, the British and French Ambassadors filed repeated diplomatic protests with the Secretary of State related to these cases. The French complained that the U.S. was not honoring its treaty commitments. The British complained that U.S. actions contravened its declared neutrality policy and its obligations as a neutral state. Surprisingly, the executive branch responded to these diplomatic protests by telling the French and British ambassadors that these were judicial questions to be resolved by litigation in U.S. federal courts. In effect, the executive branch willingly delegated to the judicial branch the responsibility for balancing the competing demands of U.S. treaty commitments to France and U.S. neutrality policy.

It is not entirely clear why the executive branch referred foreign ambassadors to U.S. courts, but let me suggest the following explanation. I believe that the Washington Administration wanted to persuade other countries that the United States took its international legal obligations seriously. Administration officials recognized that if the executive branch tried to resolve the disputes between French privateers and British ship owners — which is basically what the French and British Ambassadors asked the government to do — the British would protest if we ruled in favor of the French, and the French would protest if we ruled in favor of the British. By referring both sides to the courts, the executive could plausibly claim that it was simply trying to ensure that the relevant law would be applied in an evenhanded manner by a neutral adjudicator. This approach was quite successful: the Washington Administration was able to persuade both sides in a heated war that the United States was committed to complying with its international legal obligations.

Obviously, the current situation differs in significant respects from the problems confronted by the Washington Administration. Even so, there is an important lesson to be learned here. If the government wants to persuade the rest of the world that the United States is committed to complying with its international legal obligations, it can promote that objective by inviting judicial scrutiny of U.S. policies in the war on terror – at least in cases where those policies are intimately bound up with issues of private rights and international law. In contrast, continued resistance to judicial oversight reinforces the suspicion that the government is not persuaded by its own legal arguments.

The President and the Interpretaion of International Law-- A Reply to Ku
by David Golove
[Opinio Juris welcomes Professor David Golove of New York University School of Law as a guest respondent. Professor Golove's teaching and scholarship is focused on the foreign relations law of the United States and on constituional law.]

In his recent post, Julian asks whether the President has domestic constitutional authority to adopt a "new" interpretation of the laws of war. Even if Congress and the Judiciary have some countervailing authority in this respect, Julian suggests that the President should, at least, get a first crack at offering his own approach.

Of course, it couldn't be more obvious that the President does have a first crack, at least as a practical matter, though he may be and indeed has been overruled by both Congress and the Judiciary from time to time (frequently in recent years). The President's duty faithfully to execute the laws presumably gives him substantial authority, at least in the first instance, to adopt new good faith interpretations of customary international law. As Commander-in-Chief, he interprets the laws of war and makes those interpretations binding on U.S. military personnel by, inter alia, issuing military manuals. I can't imagine why Julian thinks that this question is up for grabs.

Probably, though, Julian is contemplating a case where the President is actually violating the existing laws of war, offering not a good faith "interpretation" but a new (and presumably, from the President's perspective, preferable) rule altogether. So, the real question is whether the President has domestic constitutional authority to violate existing customary international law. But Julian is actually not putting the question quite so broadly. Rather, he asks more narrowly whether the President can violate the laws of war in an effort to change the content of the law, which, of course, is an accepted method for changing customary international law. It seems that Julian thinks that the President should have this power. Julian may also believe that the judiciary ought to be bound by the President's legislative choices and even, perhaps, that Congress ought to be as well (since the laws of war govern "the conduct of campaigns" in John Yoo's expansive sense).

Of course, as anyone who has looked at the 18th and 19th century history on this point will easily recognize, Julian is wise to avoid making the broader claim that the President has constitutional authority simply to violate customary international law for any reason at all. That view would be radically out of step with original understandings and with constitutional developments over most of U.S. history. For those who think original understandings and/or historical practice are to be given great weight, this stubborn fact seems to present a large obstacle to embracing such a view.

Julian's narrower claim, however, is more complicated. As an initial matter, it is worth noting that in recent years the President has not generally acted in a way designed to change "customary international law." The process of customary international law formation, at a minimum, requires some degree of transparency and public justification. The Bush Administration has often preferred to act on the basis of secret legal memoranda and to offer persistent denials and obfuscation about the conduct in which it is engaging and which, if we take Julian seriously, the President is seeking to legitimize from a legal point of view. If the Administration is unwilling to acknowledge its behavior and justify its actions publicly and forthrightly, then the President is not genuinely seeking to change the law. He is just flouting it.

But returning to Julian's main claim, it would seem that the most plausible basis for his view which he doesn't really seek to justify only to suggest builds from the substantial role that the President actually and inevitably plays in the development of customary international law principles. If the President may play such a role when existing law is uncertain or legitimately contested, why shouldn't he have authority simply to violate the laws of war altogether, at least if he is seeking to establish a new rule in its place?

The reason, I believe, is that this argument, instead of seeking to make a virtue out of a vice, seeks to make a bigger vice out of a smaller one. One of the most problematic aspects of the international legal system is the "democracy deficit" it creates by enhancing the law-making role played by executive officers. This feature of international relations is at the core of many critiques of international law, used as a ground for opposing, for example, expansive conceptions of the treaty power and the permissibility of international delegations. Although the problem is indeed pervasive, it is also, I believe, to a some extent inevitable. That is hardly a reason, however, to push executive power to its logical limit. Rather, doing the opposite makes far more sense. We ought to try to find ways to limit the damage to democratic values that this anomaly produces. Placing the power to violate the law in order to change it in the hands of the executive will further reduce transparency, democratic deliberation, and accountability on issues of great public importance. If the President believes that we need a new paradigm for the laws of war suited to the circumstances of international terrorism, he can bring forward a proposal to Congress, which in turn will deliberate upon it against the backdrop of a wider public debate. Why isn't that a superior approach from a democratic point of view? Indeed, from every point of view?