Volume 5

Issue 1

National Security and Double Government
by Michael J. Glennon

National security policy in the United States has remained largely constant from the Bush Administration to the Obama Administration. This continuity can be explained by the “double government” theory of 19th-century scholar of the English Constitution Walter Bagehot. As applied to the United States, Bagehot’s theory suggests that U.S. national security policy is defined by the network of executive officials who manage the departments and agencies responsible for protecting U.S. national security and who, responding to structural incentives embedded in the U.S. political system, operate largely removed from public view and from constitutional constraints. The public believes that the constitutionally-established institutions control national security policy, but that view is mistaken. Judicial review is negligible; congressional oversight is dysfunctional; and presidential control is nominal. Absent a more informed and engaged electorate, little possibility exists for restoring accountability in the formulation and execution of national security policy.

 

After the AUMF
by Jennifer Daskal and Stephen I. Vladeck

Over a dozen years later, the AUMF—which has never been amended—remains the principal source of the U.S. government’s domestic legal authority to use military force against al Qaeda and its associates, both on the battlefields of Afghanistan and far beyond. But even as the statutory framework has remained unchanged, the facts on the ground have evolved dramatically, leading some to call for a new AUMF. In short, calls for a new framework statute to replace the AUMF are unnecessary, provocative, and counterproductive; they perpetuate war at a time when we should be seeking to end it. Congress certainly may choose, as it did in the AUMF, to authorize the use of military force against specific, organized groups so as to address an established and sustained threat that existing authorities are inadequate to quell. But until and unless the political branches publicly identify a group that poses such a threat, the many other counterterrorism tools at the government’s disposal provide a much more strategically sound (and legally justifiable) means of addressing the terrorist threat. This Article offers an alternative vision for the future of U.S. counterterrorism policy, one in which use-of-force authorizations are a last, rather than first, resort.

 

Policing Terrorists in the Community
by Sahar F. Aziz

While community policing in counterterrorism appears facially sound, this Article proffers that this endeavor is fraught with peril, both for collective civil liberties and the interests of local police in preserving relationships of trust. Accordingly, this Article examines how community policing exacerbates, rather than resolves, the underlying post-9/11 subordination of Muslims arising from preventive counterterrorism policies, notwithstanding the increase of homegrown terrorism threats from non-Muslim groups. Unless systemic reforms are made to federal preventive counterterrorism strategies, community policing is likely to aggravate existing civil liberties violations and impair otherwise good relations between Muslim communities and local police. Thus, a serious rethinking of proposals to implement community policing in counterterrorism is warranted.

 

Folk International Law: 9/11 Lawyering and the Transformation of the Law of Armed Conflict to Human Rights Policy and Human Rights Law to War Governance
by Naz K. Modirzadeh

This Article argues that the positions many U.S.-based lawyers in the disciplines of international humanitarian law and human rights law took in 2013 on issues of lethal force and framing of armed conflict vis-à-vis the Obama Administration would have been surprising and disappointing to those same professionals back in 2002 when they began their battle against the Bush Administration’s formulations of the “Global War on Terror.” By 2013, many U.S.-based humanitarian and human rights lawyers had traded in strict fealty to international law for potential influence on executive decision-making. These lawyers and advocates would help to shape the Obama Administration’s articulation of its legal basis for the use of force against al Qaeda and others by making use of “folk international law,” a law-like discourse that relies on a confusing and soft admixture of IHL, jus ad bellum, and IHRL to frame operations that do not, ultimately, seem bound by international law. In chronicling the collapse of multiple legal disciplines and fields of application into the “Law of 9/11,” the Article illustrates how that result came about not simply through manipulation by a government seeking to protect national security or justify its actions but also through a particular approach to legal argumentation as mapped through various tactical moves during the course of the legal battle over the war on terror.

 

Postwar
by Robert M. Chesney

Does it really matter, from a legal perspective, whether the U.S. government continues to maintain that it is in an armed conflict with al Qaeda? Critics of the status quo regarding the use of lethal force and military detention tend to assume that it matters a great deal and that shifting to a postwar framework will result in significant practical change. Supporters of the status quo tend to share that assumption and oppose abandoning the armed-conflict model for that reason. This Essay argues that both camps are mistaken about this common premise. For better or worse, shifting from the armed-conflict model to a postwar framework would have far less of a practical impact than both assume.

Issue 2

Foreword
by Harvey Rishikof

Prussian strategist Carl von Clausewitz once wrote that the first duty of the general and the statesman is to understand the nature of the war upon which they are embarking. And it was with that in mind that the American Bar Association Standing Committee on Law and National Security and the Harvard National Security Journal held a workshop at Drexel University’s facilities in Washington, D.C. in December 2013. The papers that make up this issue were presented at that workshop. The discussion focused on the United States’ response to terrorism and the way it has tethered new technologies to blended legal powers to create unprecedented lethality around the world. Complicating the task has been the conflation of ends, means, ways, technology, and the evolution of international and domestic legal doctrines—the pace of which has been semi-glacial when compared to the rapidly changing battlefield.

The International Law of Unconventional Statecraft
by Michael N. Schmitt and Andru E. Wall

This Article examines the international law issues raised by “unconventional statecraft,” a term the Article adopts, as explained infra, in lieu of “unconventional warfare.” It questions whether, and if so when, foreign support to insurgents runs afoul of international legal norms designed to safeguard the sovereign prerogatives of other states. In this regard, it must be cautioned that the article assesses unconventional statecraft solely from the perspective of international law. Other normative restrictions on unconventional statecraft reside in the domestic legal regime, but are not addressed. It must also be cautioned that the authors recognize that because international law norms are usually backward-looking in the sense of responding to past events, there may be circumstances in which the law proves ill-suited in the face of contemporary threats. In such cases, national decision-makers may be compelled to authorize covert support to rebel forces because doing so is in the national or international interest and therefore legitimate, albeit unlawful. Of course, decisions to venture beyond the limits of international law described in this Article should be extremely rare.

Jus Extra Bellum: Reconstructing the Ordinary, Realistic Conditions of Peace
by Michael Jefferson Adams

This Article explains the international legal basis for national security activities outside of armed conflict through a legal architecture that the author refers to as “jus extra bellum”—“the state’s right outside of war.” Jus extra bellum does not imagine that the end of war results in an entirely peaceful, safe planet. It does not feign ignorance of threats to national security nor erase states’ obligations to protect their citizens. It recognizes that a peaceful world is one in which states continue to conduct national security activities outside of armed conflict. Jus extra bellum accepts that such activities occur within a generally permissive international legal regime and are shaped by domestic legal authorities and obligations. The concept of jus extra bellum also provides an analytical framework for addressing hard questions about how the United States and its international partners will seek refuge from war while addressing the significant national security threats that persist in the future. This Article explains the dilemma faced by the U.S. government as it seeks to reconcile obligations to provide security against the desire to transition to an era without war. It provides an overview of global threats, reviews the historic and legal foundations of statecraft affecting national security, and addresses the legal bases for U.S. operations in Afghanistan and in the broader transnational armed conflict. Finally, the Article introduces emerging U.S. government policies and offers a future perspective on national security activities conducted pursuant to jus extra bellum. It explains why jus extra bellum will be critical to combatting terrorism and containing other global threats as the world works towards reconstructing “the ordinary, realistic conditions of peace.”

Controlling the Use of Power in the Shadows: Challenges in the Application of Jus in Bello to Clandestine and Unconventional Warfare Activities
by Todd C. Huntley and Andrew D. Levitz

This Article sheds some light on only a small fraction of the use of power in the shadows, that being the application of jus in bello to a state’s use of surrogates to conduct clandestine and unconventional warcraft activities. It examines the status of surrogates under the law of armed conflict, including an analysis of whether surrogates are combatants entitled to the combatant’s privilege or if, and under what circumstances, they lose that protection. This Article also examines when surrogates who are members of an organized armed group could be targeted with armed force. Lastly, the Article looks at the jus in bello principle that presents the greatest challenges of application to clandestine and UW activities: distinction.

Special Operations Forces and Responsibility for Surrogates’ War Crimes
by Gregory Raymond Bart

This Article considers this specific issue: whether SOF teams have duties under the law of war—as interpreted by war crimes jurisprudence—to investigate and to attempt to prevent war crimes by surrogate forces. It does not address duties imposed by domestic statutes or regulations. Also, given the breadth of this topic, the Article focuses on the duties of SOF teams in the field—their tactical actions—and not those of higher, strategic, or policy-level decisionmakers. For example, consider the following scenario that might arise during an Unconventional Warfare mission. A SOF team deploys into a foreign country in either a permissive or non-permissive environment with the mission to accomplish U.S. military objectives through, with, or by surrogates—to train, equip, advise and assist, and even lead, in varying degrees, surrogate forces in combat. Before deploying, the team knows of general rumors that some of the surrogate groups may have committed acts that would constitute serious violations of the law of war. While deployed and providing military assistance, the team hears specific rumors that the surrogates with whom they are working might be committing war crimes. No SOF members directly participate in any war crimes. Within the context of law of war jurisprudence, what are SOF’s responsibilities with respect to suspected or confirmed war crimes being committed by surrogate forces?

The Presidential Intervention Principle: The Domestic Use of the Military and the Power of the Several States
by Michael Bahar

There is no more irregular use of force than the use of force domestically. There are rare times, however, when the Commander-in-Chief can, and must, order federal troops to respond to internal crises—whether catastrophic natural disasters, devastating nuclear accidents, or terrorist attacks. At times, the President may even have to direct federal forces to ensure the equitable enforcement of federal law, including civil rights laws, against armed opposition. It is therefore critical to understand presidential emergency and war powers relative to the powers wielded by those who could most readily enhance or undermine these presidential efforts: the power of the state governors. This Article looks at this greatly under-analyzed aspect of national security federalism and derives a guiding constitutional, statutory, and historical principle. The presidential intervention principle holds that the President can and sometimes must intervene when state and ordinary judicial proceedings cannot or will not maintain order, public safety, or the equitable enforcement of the law against armed opposition. The President may also intervene when federal personnel or facilities are in grave danger. Short of—and at times even during—these emergency situations, however, states and their governors provide a critical and often underappreciated structural check on presidential power. Finally, while irregular warfare discussions tend to focus on the Title 10/Title 50 debate, the domestic use of force implicates those titles plus Titles 18, 32, and a host of constitutional and statutory thickets, as well as opportunities, best thought of before the crisis hits.