‘Rhetoric and Reality,’ and our understanding of the rule of law

Last month, Marc Lynch published a report for the Center for a New American Security, Rhetoric and Reality: Countering Terrorism in the Age of Obama. The report is a worthy contribution to public discussion of the Obama administration’s counterterrorism policies, outlining the early contours of the administration’s strategy and tracing its continuity with the Bush administration’s second term more comprehensively than previous efforts have done. There is also an aspect of the report with which I have some intellectual problems: its discussion of the rule of law and international law, which constitutes a significant component of Lynch’s analysis.

Continuity with Bush’s second term

I’ll begin with the very real contributions the report makes. Lynch writes that when it comes to the Obama administration’s counterterrorism policy, “it is still easier to say what it is not rather than what it is. President Obama has not yet articulated an effective strategy to the American public.” A lack of articulation, though, does not mean there is a lack of some kind of strategy. Lynch identifies four pillars to the administration’s approach: global Muslim engagement (outreach to Muslim communities based on “mutual interests and mutual respect”), countering violent extremism (blunting and undermining extremist narratives, including the claim that the US is at war with Islam), kinetic counterterrorism (enhancing efforts by the military, intelligence, and law enforcement to capture, kill, and disrupt terrorists and their networks), and the commitment to carry out these efforts within the rule of law. Outlining these early discernible pillars of the administration’s strategy is an important contribution.

Another valuable aspect of Lynch’s study is that it demonstrates the continuity between the counterterrorism policies of Bush’s second term (specifically, 2007-2008) and those adopted at the start of the Obama administration. Others, such as Eli Lake, have written about this before, but Lynch’s comprehensive treatment of the subject adds considerable value. Page 13 of his report features a “continuity and change” chart detailing such issues as the phraseology “global war on terror,” what the enemy is called, the Guantanamo detention facility, the use of military commissions and “black sites,” and habeas corpus rights. It demonstrates that there has been a shift in counterterrorism policies within the past five years — but that the bulk of this shift came around 2006-2007, as opposed to when Obama took office. For those who follow public debates over counterterrorism policy, Lynch’s observations point to the current highly politicized climate in which these policies function, and they indirectly expose some of the hypocrisy in the way these issues are debated on both the left and the right.

The rule of law, and international law

As I mentioned earlier, I had some intellectual problems with the report’s discussions of the rule of law and international law. The problems I outline here are by no means unique to Lynch, but feed into broader problems with the way legal issues are discussed and debated. But that does not absolve Lynch of blame for making what I regard as some intellectual errors (or serious shortcuts) on these issues.

In particular, when the Obama administration’s adherence to the rule of law in general — and international law more specifically — is discussed, the report comes close to conflating controversy with lawlessness. For example, page 8: “If restoring stricter adherence to the rule of law is as central to waging an effective struggle against extremist networks as the administration has claimed, then what have been the costs of embracing many principles of the Bush administration’s ‘Global War on Terror’ (such as controversial sections of the Patriot Act)?” Page 24: “The dramatic escalation of drone strikes against alleged leaders in Afghanistan, Pakistan, Yemen and elsewhere has been seen as a serious potential gap in the administration’s commitment to the rule of law. The administration has strongly defended the legality of these drone strikes, but the legal foundations as to how drone strikes are carried out remain hotly contested.” Page 24: “The revelation that Anwar al-Awlaki, an American citizen residing in Yemen, has been added to the ‘hit list’ raised even more legal concerns.”

In these cases, the fact that controversy exists is used as a means of arguing that the Obama administration is not complying with the rule of law, or that the administration has failed in its commitment to international law (i.e., “controversial sections”; “hotly contested” “raised … concerns“). But that of course is not the case: simply because somebody claims a policy violates the rule of law does not make it so. International law has been particularly abused in this manner, with a significant number of commentators claiming that virtually every policy they oppose is in violation of international law. One thing that is needed in these discussions, and that this report does not provide, is more careful discussion of why policies are, or are not, legally problematic. In the case of international law, there are three primary sources of authority: treaties, customary international law, and “general principles common to the major legal systems of the world.”

Precision is an important aspect of any legal claim. In the one area where the report does attempt legal precision, its factual premises are a bit off: “Drone strikes against sovereign territory [i.e. Pakistan], rather than battlefield zones such as Iraq and Afghanistan, can only draw legal legitimacy either from a bilateral agreement with the host state or from a doctrine such as the Bush administration’s — which essentially declares the entire world a potential combat theater in a ‘Global War on Terror.'” While both the US and Pakistan are quiet about this, such bilateral agreements are in fact in place. I reported this last year. One can argue that the U.S. and Pakistan should not play a game wherein they are quiet about the authorizations due to the controversy they are thought to unleash in Pakistan, but the idea that the strikes are illegal is extremely difficult to sustain given Lynch’s argument.

Incidentally, virtually every commentator, including Lynch, believes that Obama has shifted from the Bush administration’s policies by escalating drone strikes. But this too is a continuation of Bush’s policies: as this chart demonstrates, the spike in drone strikes began in 2008, under the Bush administration. And the 35 strikes that year really represent about half a year’s work.

In a polite e-mail exchange, Lynch wrote to me about the rule of law/international law issue: “I think that this is a major problem with [the Obama administration’s] approach and a series of time bombs which will explode down the road if not addressed.” But I think Lynch’s statement actually counsels for greater precision in the way we discuss rule-of-law issues. On the one hand, there is a danger to legitimizing a view that suggests that controversy and illegality are one and the same. Doing so can empower those who wish to argue that virtually all American counterterrorism policies are lawless. But on the other hand, a lack of precision in the way we discuss legal issues — removing these discussions from actual sources of legal authority — can make policymakers who are skeptical of general discussions of international law suspect that there is no validity to these claims.

There may be a saving grace to Lynch’s argument on this point, in that he points to a contradiction between the Obama administration’s rhetoric and its actual practices. “If the administration believes its original arguments about the importance of the rule of law for creating a durable and legitimate strategy,” Lynch writes, “then it needs to act accordingly.” My sense is that there may indeed be a contradiction between Obama’s rhetoric — especially his statements on the campaign trail — and the way he has understood the rule of law as president. But if so, that remains unproven within the report: the only thing the report establishes is that Obama articulated a concern for conducting counterterrorism policies within the rule of law, and that some people still find these policies controversial.

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