Note:

These remarks were delivered at the conference on “Rethinking the Laws of Armed Conflict in an  Age of Terrorism,” which was co-sponsored by Hudson Institute and the Jerusalem Center for Public Affairs , and which took place on 9-10 December.  These remarks were delivered on December 10. The conference paper upon which these are based is being prepared for publication.  The Hudson  website carries audio and video from the conference , which featured contributions from a range of distinguished participants from the fields of law, political science, philosophy, and public policy.

Good morning, and thank you for your kind introduction.

The new mode of counter-terrorist war into which we plunged with the attacks of September 11, 2001, presented problems for legal frameworks developed around a paradigm of conflict in which the “normal” situation was a clash between regular nation-state armies somewhere else.  We now face a challenging “new normal” of transnational conflict – a war in which the arena of combat is disturbingly not separate from, and indeed was largely coextensive and integrated with, civil society, and in which traditional distinctions between “civilian” and “military” make little sense.

One of the most jarring and worrisome aspects of this “new normal” is the possibility that this war will never clearly end. To be sure, it was hardly unusual in past wars for participants to have no idea, at the outset, how long any particular conflict would last.  That every war would have an end, however, was traditionally unquestioned.  This new paradigm of conflict seems to undercut that assumption: it is distinctly possible that we’ll end up in something akin to a permanent state of affairs.  It might constitute, in other words, a “new normal” not merely by virtue of having replaced state-on-state warfare as the predominant type of conflict, but also by emerging as the new ground state of the international security environment.

The issue of detainees illustrates the problem.  Traditionally, the need to keep prisoners disappeared when a truce was agreed, or their government surrendered, because all elements of the opposing armed forces were expected to cease operations.  The problem with jihadist terrorist prisoners, however, is that – as Benjamin Wittes has written – such detainees are dangerous “not merely as an arm of a particular military force but in [their] individual capacity  as well.”  Their dangerousness would not necessarily disappear even if Usama bin Laden surrendered; they might need to be imprisoned, in other words, effectively forever – even if hostilities had ceased.  To release them, in fact, might be to restart the war.

The Bush Administration’s pure war paradigm was not, perhaps, as untenable in this new context as the law enforcement paradigm against which it was self-consciously a reaction, but both traditional modes of conceiving modern counter-terrorism seem inadequate for a democracy’s permanent state of war against such enemies.

Perhaps in recognition of this, we seem to be moving gradually into a new domestic paradigm, in which – with remarkably few exceptions – the Bush “war paradigm” innovations are being quietly ratified and adopted by the current administration, albeit sometimes in modified form.

As it turns out, Guantanamo is not going to be closed anytime soon, some prisoners will still be tried by military commissions, and some others may still end up being detained indefinitely as enemy combatants.  We’re actually stepping up targeted killings against al Qaeda leaders overseas, and CIA renditions continue.  Obama Administration officials say they want Congress to renew legislative authorities for electronic surveillance, and Attorney General Eric Holder has invoked the “state secrets” privilege to dismiss lawsuits both over warrantless electronic surveillance and over alleged torture of detainees.  As for Holder’s much-vaunted announcement that he’s reopening previously-dismissed cases of potential CIA torture, moreover, this apparently only applies to operatives who exceeded Bush-era legal guidance for things such as “waterboarding.”  Agents who waterboarded by the book, as it were, apparently face no liability.

Despite what Ben Wittes rightly identified yesterday as a series of confused love/hate reactions to all this on both the political left and the right, I think that we may perhaps be seeing U.S. law slowly settling into a new and much more bipartisan sort of “normal” quite different from how things had been in the more innocent years before September 11, 2001.

In the courts, the Bush Administration won support for some of the most basic tenets of its war paradigm.  It has now officially been agreed by the Supreme Court, for instance, that we are indeed at war with al Qaeda and its affiliates, and that such terrorists can be detained until this war had concluded – whenever that happens to be.  Intriguingly, moreover, where the Court bucked the Bush Administration over detainees, it did so in ways that merely adapted the framework of the war paradigm to the conditions of a potentially permanent struggle against terrorism.  Let me unpack this a bit.

In a possibly never-ending struggle against a ghostly and potentially ubiquitous nonstate terrorist enemy devoted to mass casualty attacks and eager to acquire weapons of mass destruction, it is our challenge to devise ways of meeting the threat that are sustainable – forever if need be – in a democracy under the rule of law.  I think Benjamin Wittes is quite right about that.  In our “new normal,” it isn’t enough simply to allow the President to do whatever he wants for a brief time.  The war paradigm was an understandable response to the horrifying exigencies of the 9/11 moment, but it must give some ground if we wish to live indefinitely in the “new normal.”  This is perhaps less a doctrinal legal than a policy, political, and prudential judgment – but I find it compelling.

Intentionally or otherwise, such modification is what the Supreme Court seems to have been undertaking in its detainee cases.  Putting aside the merits or demerits of the specific legal reasoning the Supreme Court employed in reaching these conclusions, from a policy perspective, the Court’s decisions have a logic rooted in the peculiar nature of our “new normal” of counter-terrorist conflict – specifically, its factual ambiguity, non-territoriality, and potential permanence.

This is not a conflict in which the typical prisoner is caught wearing an enemy uniform and carrying a weapon.  The factual basis for determinations of combatant status is now often much more ambiguous.  This greater uncertainty – coupled with the potential permanence of “hostilities” in the wars of the “new normal” – means that it is not only that there is a greater chance of an Executive Branch mistake or abuse in combatant determinations, but that the consequences are especially grave.  As we have seen, an enemy combatant may perhaps never be released.

This factor of the ambiguity, contestedness, and potential permanence of combatant status seems to have featured in the Supreme Court’s reasoning.  In Rasul , for instance, one of the reasons the majority found the old Eisentrager case not to apply was that unlike in that litigation, the prisoners in Rasul claimed not to be combatants at all, and yet faced “potentially indefinite detention.”  For a detention process that might well continue in operation “forever,” and whose prisoners might not ever be freed, unfettered Executive Branch discretion seems less tenable an answer than it did in past wars.

Even while affirming the President’s power to detain enemy combatants, therefore, the Court felt it important to impose a review mechanism in order to help ensure that persons subject to such de facto “disappearance” were in fact enemy fighters.  As Amichai Cohen pointed out yesterday, this amounts in some ways not to a confining of Executive war powers but a conferral of additional legitimacy upon them. Without actually changing the underlying substantive rights of detainees, imposing such due process checks serves the long-term sustainability of the detainee system.

As Ben has aptly observed, moreover, the Court has mostly – and here Boumediene is an exception that I think postdates his book, though again only in order to help ensure that the Executive Branch really is exerting its war powers against enemies – decided these cases on statutory grounds, which the President and Congress could, between them, later amend and adjust if circumstances required.  As the examples of the 2005-06 detainee legislation demonstrates, as long as the Court’s post-9/11 jurisprudence remains principally statutory, there remains scope for an ongoing iterated game relationship between the judiciary and the political branches.

Several years before 9/11, I offered an approach to analyzing the Congressional-Executive relationship in war powers matters “as it is lived over time ‘in the shadow,’ so to speak” of a looming constitutional impasse which neither political branch wishes and which the judiciary is ill-equipped to adjudicate.*  One might interpret the Supreme Court’s cases today, in fact, as being well designed to catalyze exactly such a process.

One way to view the Supreme Court’s jurisprudence to date is to see it as establishing a powerful incentive structure for constructive Congressional-Executive “bargaining in the shadow” of such a dangerous “judicial power model” of court supremacy.  As long as the Court largely refrains from addressing post-9/11 challenges with the blunt tool of constitutional precedent but retains the theoretical option of doing so , the political branches have reasons to work together to develop sustainable approaches to the “new normal.”

In its holdings – affirming the basic parameters of the war paradigm but modifying its details in light of the ambiguities and likely permanence of our current counter-terrorist war – the Court has arguably signaled the kind of solutions by which the Bush Administration’s initial approaches might be made sustainable.  It has, however, left room for an ongoing process of “bargaining in the shadow of the constitution.”

As for international law, it has become almost a cliché to note that the Geneva-based traditional framework of the law of war is notoriously “thin” when it comes to dealing with irregular, nonstate combatants who do not give a fig for the law themselves.  State-on-state struggles were the “normal” situation for which the law was designed, with irregulars – to the extent that they were contemplated at all – relegated to the conceptual periphery of the system.  The former periphery of the system is now its center of gravity: this is our “new normal.”

Nevertheless, however, the law’s thinness here does not make modern counter-terrorist warfare entirely lawless. Rather, what is striking at least about the behavior of developed liberal democratic polities in modern counter-terrorist conflicts is the degree to which they do attempt to minimize civilian casualties and to follow traditional rules even at sometimes considerable military cost.

All in all, the community of professional international lawyers seems befuddled by the circumstances confronting states in the wars of the “new normal.”  Some even quite reputable jurists have become confused by trying to shoehorn modern counter-terrorism into conceptual legal boxes derived from regular state-on-state conflict.  My conference paper will address the Goldstone Report in this regard, but since so many participants have talked about it already here, I’ll spare that dead horse another set of blows right now.

So where is the law going?  One of the hallmarks of conflict in the “new normal” is the collapse of the Geneva ideal of reciprocity.  Far from there being “common ground” in the protection of civilians as Ken noted that some have suggested we might seek, it is often actually a war aim of the irregular combatants to cause as much civilian suffering as possible.  The law of war in this “new normal” emerges as a wholly one-sided phenomenon: it is expected to shape the behavior only of the state party to the conflict.

A further change is what I think of as the increasing interiorization of the law of armed conflict.  Modern counter-terrorist wars present extreme challenges to developed democracies’ systems for providing operational legal advice to commanders, forcing a radical decentralization of law-related decisions.  The lack of a “front line” and regular enemy forces, the routine co-location of regular military units with members of the civilian population, and that population’s interpenetration with irregular enemy combatants all drive “operational law” down to the very lowest levels of interaction between regular forces and the surrounding society, well below the point where specific professional legal advice can actually be had.   In a sense, every regular combatant must be his own legal advisor for countless day-to-day decisions of interaction with civilians and enemy combatants alike.  To some extent, the most important legal dynamics, as they are lived in practice, are thus driven inward : into the development and maintenance of what is in effect the operational moral code of individual combatants.

This suggests another lesson, for when the dynamics of legal constraint become so decentralized and interiorized, it can be devilishly hard for anyone on the “outside” to judge their operation in any meaningful way.  Ken Anderson yesterday pointed out some deep theoretical problems with the notion of proportionality in modern war, but the problem is not just theoretical but practical.  The challenge of functional opacity is particularly acute in an environment in which operational decisions involve time-urgent judgment calls, made on the basis of immediate and evolving tactical circumstances and often fragmentary intelligence information, and where there exists no clear analytical boundary between “civilian” and “military” realms in any event.  Many, and perhaps even most , decisions in modern counter-terrorist war are thus likely to be highly resistant to after-the-fact analysis and second-guessing, particularly when undertaken by outsiders.

We should expect other wars of the “new normal” to be similarly resistant to exterior analysis.  As an example, consider comments recently made by one U.N. official that U.S. drone aircraft strikes may violate international law.  If the United States wished to reassure others that it was really attacking enemy combatants rather than simply conducting “arbitrary extrajudicial executions,” he indicated, it would have to open up all these operational decisions to outside scrutiny.  This, one suspects, is rather unlikely to happen.  Such exterior opacity is likely to be a hallmark of conflict in the “new normal.”

Because these dynamics of interiorization and opacity are coupled with the collapse of the reciprocity ideal in modern counter-terrorist conflict, it may be that the law of war is evolving into a form of virtue ethics.  The law may be becoming, in effect, a one-sided code of conduct having more to do with the moral identity of those who observe it – that is, what “kind” of people they, are or country they represent – than with any specific notions of “legality” at all.  Law, if you will, is perhaps no less compelling than before, but it’s starting to look markedly less “legal.”  In such a de-legalization , rrestraint in war may be becoming principally a question of the identity politics of civilized nations: it is about who you are , not what your adversary does, or necessarily even about what actually happens.

Conceivably, such a virtue-ethical vision of law could offer a way for international law to handle some of the challenges of the “new normal,” insofar as it is a conception that is intrinsically non -rigid.  Virtue ethics as an approach to law is one capable of bending under stresses that might shatter a rigid commandment system, for it is a system less of rules than of standards.

Traditional thinkers may find this worrisome, insofar as such virtue-ethics faces difficulties of objective accountability to outsiders.  The principal dynamics of such a system are internal , and its ethics are less consequentialist than they are about intentionality – concerned, as it were, with where one’s heart lies in taking action.  Some may feel this gives up too much vis-à-vis traditional notions, particularly in how to “enforce” the law.  Enforcement is a notorious problem of international law anyway , however, so perhaps this is not a crippling objection.  And we could perhaps benefit from the moral and contextual richness of acknowledging that questions of right conduct are not always ones usefully answerable by a binary judgment dichotomy between “legal” and “illegal.”

Yet the law of armed conflict may indeed be evolving in ways ever more incompatible with traditional conceptions.  It is not merely that the law will have to come to grips with conflicts lacking territorial boundaries, clear distinctions between “civilian” and “military,” and a reasonable likelihood of never actually concluding.  It is also that the law in this new environment is becoming increasingly non -reciprocal, interiorized, and resistant to external assessment and accountability. The international community’s struggle with the perplexities of law in the “new normal” is just beginning.

-- Christopher Ford

*     Christopher A. Ford, “War Powers as We Live Them: Congressional-Executive Bargaining Under the Shadow of the War Powers Resolution,” Journal of Law and Politics , vol.xi, no.4 (Fall 1995), at 609.