Five years ago today, in remarks at the London School of Economics, I provided a comprehensive public statement of the U.S. Government’s views of the international legal framework applicable to the U.S. conflict with al Qaida, informed in part by two years of extensive discussions with U.S. allies. My thinking has evolved on a number of these issues, but I thought it might still be useful to reprint these remarks now, in light of the detailed addresses given by Harold Koh, John Brennan, and Jeh Johnson on the same issues over the last eighteen months.
Readers may draw their own conclusions, but I might highlight several comments I made at the time:
First, contrary to some European impressions at the time, I stressed that the U.S. did not believe that military force and the laws of war were the only legal or appropriate approach to fighting al Qaida. Relevant to the debate now taking place in Congress over exclusive military prosecutions of terror suspects, I said that:
“law enforcement approaches to counterterrorism should [not] be pushed aside because they are inconvenient to implement. We recognize that other countries, like the UK, Germany, and Spain, may be able to continue 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 we find inside our own territory.”
Second, I made clear that the U.S. Government considered itself to be in an armed conflict with al Qaida (not with all terrorists everywhere), and that the phrase “Global War on Terror” was merely rhetorical. Although some have argued that this limitation was first adopted by the Obama Administration, this was also the publicly stated position of the Bush Administration.
Third, like John Brennan, I explained that the U.S. Government did not consider the conflict with al Qaida to be limited to the hot battlefield of Afghanistan:
“There is no principle of international law that limits a state’s ability to act in self-defense to a single territory, when the threat comes from areas outside that territory as well..”
But I emphasized that there were significant international legal restraints on the U.S. right to use force in other countries:
“I am not suggesting that, because we remain in a state of armed conflict with al Qaida, the United States is free to 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 be responsible for preventing terrorists from using its territory as a base for launching attacks. And, 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…If we determine the location from which Bin Laden has been planning attacks against the United States, and the state in which he is operating is unable or unwilling to act against him, what would you have the United States do?”
“A state acting in self-defense must comply with the UN Charter and fundamental principles of the laws of war. And whether a state legitimately may use force 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.”
Finally, I stressed the importance of further public discussion of the legal issues:
“let me reiterate that we are strongly committed to engaging in continued dialogue with our European partners about these issues, just as we have had robust debates at home. These are not issues with easy answers — the questions are hard and the stakes are high.”
Five years after my remarks, the U.S. Government continues to assert a virtually identical international legal position with respect to the U.S. conflict with al Qaida. Many other countries (and human rights groups) continue to disagree with the U.S. legal position that the U.S. is in an armed conflict with al Qaida, although they have been considerably less critical of the Obama Administration. I agree with John Brennan that “The more our views and our allies’ views on these questions converge, without constraining our flexibility, the safer we will be as a country.” The fact that our views have continued to diverge, rather than converge, makes the need for continued dialogue all the more important.