War without end? Legal wrangling without end.

• Author: Rabkin, Jeremy
• Position: Response to article by Jack Goldsmith in this issue, p. 11 - Symposium: Presidential Power and Foreign Affairs

Abstract

It is optimistic to argue, as Jack Goldsmith does, that debates in the Bush era generated a broad consensus on national security law in later years. Rather, partisan critics denounced a Republican administration .for violating the law, then acquiesced to similar practices when implemented under its Democratic successors. But politics won't disappear from national security law, because citizens demand security as well as law. Political leaders will only embrace fixed rules when they accommodate exceptions. We will continue to have debates over the exceptions. Even the original expounders of modern natural law expected this result.

CONTENTS I. QUESTIONABLE CONSENSUS II INTERNATIONAL LAW OFTEN LIVES BY EXCEPTIONS III. POLITICAL CRIMES AND THE GRADATIONS OF IMMUNITY IV. COMPETING PHILOSOPHIC PERSPECTIVES V. CONCLUSION Jack Goldsmith's book, Power and Constraint, (1) is a genuine contribution to the history of our time. It offers a wealth of detail, reflecting energetic and fair-minded inquiry. I believe its underlying interpretation of events, however, is somewhat optimistic.

In Goldsmith's account, the debates of the Bush years achieved reform of some policies. For other polices, such debates established a more firmly grounded consensus, ultimately embraced by the Obama Administration. In Goldsmith's view, this shows that we have a system that will restrain impulsive presidential action. I accept every detail of Goldsmith's account, but I remain skeptical of his "relatively sanguine" conclusion. (2)

I don't say this as someone determined to counter the positions advanced by Professor Goldsmith. A few years ago, Goldsmith published (with Darryl Levinson) Law for States, in the Harvard Law Review, (3) expressing general skepticism about such law, noting parallel difficulties in international law and American constitutional law. I think the skeptical Goldsmith of that article offers a better perspective on recent disputes about national security law than the optimistic account on offer in Power and Constraint.

1. QUESTIONABLE CONSENSUS

   As Goldsmith tells the story in his book, we had fierce debates about Guantanamo detention policies, about trial by military commissions, and about coercive interrogation practices in President George W. Bush's first term. Reforms were introduced into detention policy and into military trial procedures; a blanket ban was imposed on "torture." The most sensible or consensual compromises of the Bush era prevailed after they were "vetted, altered and blessed--with restrictions and accountability strings attached--by other branches of the U.S. government." (4) In short, the system worked.

   I see the larger pattern differently. I am struck not by continuity but contrast. Partisan critics of the Bush Administration wielded legalist critiques when it was helpful in discrediting Bush policies. They then forgot their scruples when the White House was occupied by a president who was more to their liking (at least in general). That left the Obama Administration free to disregard legal constraints on the executive and to disregard even the policy compromises supposedly settled by the previous debates.

   Start with the issue of detention. The Obama Administration came to office promising to close the detention facilities at Guantanamo. It is true (as Goldsmith records) that congressional opposition forced the new administration to abandon plans to move Guantanamo detainees to U.S. prisons and arrange for civilian trials of detainees in the United States. (5) But the Obama Administration was not willing to develop a new policy to determine when newly captured terror suspects could be brought to Guantanamo. Perhaps it was unwilling to offend the political constituency that still expected Obama to close down Guantanamo and so did not want to be seen expanding rather than diminishing the number of detainees there. It did not embrace Goldsmith's confident conclusion that Guantanamo--now that "torture" had been outlawed and some form of habeas jurisdiction extended there--had been "vetted" and "blessed" as a suitable place to bring suspects for long-term detention and continuing interrogation.

   Instead, the Obama Administration stepped up drone strikes on terrorist suspects, as if killing terrorists were always preferable to capturing, detaining, and interrogating them. (6) One might think targeted killings would have raised troubling legal questions. Nonetheless, the Obama Administration has received far less criticism for drone strikes than the Bush Administration did for its detention and interrogation practices.

   The Obama Administration received so little criticism that it was emboldened to extend the reach of its drone campaign to seemingly peripheral targets. The most notable of these was Anwar al-Awlaki, a Muslim imam, accused of providing "motivational" videos inspiring viewers to engage in terrorism. (7) Al-Awlaki was, in fact, a U.S. citizen, educated at American universities, (8) He was alleged to have encouraged potential recruits to participate in terrorist operations, but his own direct role in terrorist operations remained sketchy (at least in public accounts). (9) One might say his videos were clerical malpractice, but they probably would not be regarded as criminal offenses in the United States. Capital punishment seems a rather extreme penalty in the circumstances.

   The Obama Administration assured critics that it would not undertake targeted killings except after careful review, a review conducted entirely within the executive branch, in secret, without participation by the intended target, without any opportunity for administrative appeal, let alone appeal to the ordinary courts. (10) One might think this "procedure" would raise more concerns than anything attempted at Guantanamo. In fact, it provoked very little public debate.

   Meanwhile, President Obama repeatedly hailed the killing of Osama bin Laden as "justice" (11)--entirely divorcing justice from any form of due process. There was remarkably little public debate about whether the Navy Seals who carried out the raid on bin Laden's hiding place in Pakistan had the option of capturing rather than killing him. There was little public inquiry even regarding the instructions they had actually received from the Obama White House. Concern about international law, which happens to prohibit the denial of quarter to an enemy willing to surrender, (12) almost vanished from public debate.

   It might be that public feeling against the perpetrators of the 9/11 attacks was still too heated for anyone to bother about international law in that situation. But consider a different contrast, that between the recourse to active war measures under Bush and then under Obama.

   The Bush Administration received intense criticism, at least in some quarters, for launching the invasion of Iraq in 2003 without a formal authorization from the UN Security Council. (13) The criticism grew more intense when, months after the invasion, investigators still could not discover WMDs in Iraq. That seemed to undermine the main argument which the Bush Administration had advanced for the war--that Iraq had failed to dismantle its weapons programs (or failed to satisfy international inspectors that it had done so).

   President Obama launched air strikes against Libya in the spring of 2011. (14) He promised that U.S. intervention was only directed at protecting civilians in Benghazi and would be over in days. (15) The intervention went on for more than half a year, as its aim shifted from protecting civilians to ensuring the success of rebel forces seeking the overthrow of Libyan President Muammar Qaddafi. (16) The Obama

   Administration might thus have been criticized for misleading the public and still more for using misleading claims to conceal its larger strategic agenda. But there was little fuss when earlier White House claims about military intervention were invalidated by subsequent events in the Obama era.

   The contrast is all the more striking because President Bush did at least seek and receive formal authorization from Congress to undertake military intervention in Iraq. (17) President Obama insisted he did not need such authorization and thus did not seek it and did not receive it. (18) He was not much criticized, however, for abusing presidential war powers.

   And so with the aftermath in each country. President Bush was subject to intense, ongoing criticism for allowing Iraq to fall into chaotic violence after the toppling of Saddam. Some critics even protested the supposed inadequacies of the Iraqi tribunal that tried Saddam and sentenced him to death. (19) Obama received very little criticism for allowing Libya to fall into violent chaos or allowing the Libyan dictator, Muammar Qaddafi, to be killed in the field by opposition guerrillas with considerably less due process than Saddam received.

   Americans heard very little about the chaos and violence in Libya following the fall of Qaddafi, until the U.S. ambassador and other Americans were slaughtered by a well-planned terrorist raid against the U.S. consulate in Benghazi on September 11, 2012. (20) The administration spent weeks misrepresenting the facts of what happened, which did eventually (as truth seeped out) provoke much criticism. (21) President Obama responded by insisting that those responsible for the attack would be "brought to justice." (22) Almost no one asked about how this would be done. Such legalistic inquiries were out of fashion in the Obama era.

   I believe the point could be extended through a number of other contrasts but these examples are sufficient to establish the point. And that point is broader than a protest against partisan hypocrisy. The relevant point here is that standards for the conduct of security policy, particularly outside the United States, are not easily contained by legal standards. That does not mean that law has no place in debates about foreign or...