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Mary Dudziak’s Bizarre Oped

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Friday, March 22, 2013 at 8:42 AM

Mary Dudziak has a truly bizarre oped in the New York Times today taking on the Obama administration’s drone wars on, let’s just say, a new basis: that President Nixon once secretly bombed Cambodia.

I’m not exaggerating. Here’s how it opens:

ON March 17, 1969, President Richard M. Nixon began a secret bombing campaign in Cambodia, sending B-52 bombers over the border from South Vietnam. This episode, largely buried in history, resurfaced recently in an unexpected place: the Obama administration’s“white paper” justifying targeted killings of Americans suspected of involvement in terrorism.

President Obama is reportedly considering moving control of the drone program from the Central Intelligence Agency to the Defense Department, as questions about the program’s legality continue to be asked. But this shift would do nothing to confer legitimacy to the drone strikes. The legitimacy problem comes from the secrecy itself — not which entity secretly does the killing. Secrecy has been used to hide presidential overreach — as the Cambodia example shows.

On Page 4 of the unclassified 16-page “white paper,” Justice Department lawyers tried to refute the argument that international law does not support extending armed conflict outside a battlefield. They cited as historical authority a speech given May 28, 1970, by John R. Stevenson, then the top lawyer for the State Department, following the United States’ invasion of Cambodia.

Since 1965, “the territory of Cambodia has been used by North Vietnam as a base of military operations,” he told the New York City Bar Association. “It long ago reached a level that would have justified us in taking appropriate measures of self-defense on the territory of Cambodia. However, except for scattered instances of returning fire across the border, we refrained until April from taking such action in Cambodia.”

In fact, Nixon had begun his secret bombing of Cambodia more than a year earlier. (It is not clear whether Mr. Stevenson knew this.) So the Obama administration’s lawyers have cited a statement that was patently false.

I’ve read this oped several times, and I’m honestly not sure I understand what Dudziak is arguing, but whatever she means to be saying, there are a few big problems with her piece. Most importantly, the quotation she uses from Stevenson’s speech does not appear in the White Paper at all. So when she says that the Obama administration lawyers have “cited a statement that was patently false,” that’s note quite true. What she really means is that the Obama administration lawyers have cited a speech that contains a statement that wasn’t true. Unfortunately for Dudziak, the falseness of the quotation has no bearing on the White Paper’s legal analysis.

Yet without the quotation, Dudziak’s oped kind of falls apart. Her whole point, after all, is that the Nixon-era precedent is based on a lie, and therefore illegitimate as a source of authority for modern-day military action. But the White Paper isn’t, in fact, citing the Stevenson speech for anything that remotely depends on Nixon’s deceit. Here’s the context in which the Stevenson speech actually appears—rather in passing—in the document:

Claiming that for purposes of international law, an armed conflict generally exists only when there is “protracted armed violence between governmental authorities and organized armed groups,” . . .  some commenters have suggested that the conflict between the United States and al-Qa’ida cannot lawfully extend to nationals outside Afghanistan in which the level of hostilities is less intense or prolonged than in Afghanistan itself. . . . There is little judicial or other authoritative precedent that speaks directly to the question of the geographic scope of a non-international armed conflict in which one of the parties in a transnational non-state actor and where the principal theater of operations in not within the territory of the nation that is party to the conflict. Thus, in considering this potential issue, the Department looks to principles and statements from analogous contexts.

The Department has not found any authority for the proposition that when one of the parties to an armed conflict plans and executes operations from a base in a new nation, an operation to engage the enemy in that location cannot be part of the original armed conflict, and thus subject to the laws of war governing that conflict, unless the hostilities become sufficiently intense and protracted in the new location. That does not appear to be the rule of the historical practice, for instance, even in a traditional international conflict. See John R. Stevenson, Legal Adviser, Department of States, United States Military Action in Cambodia: Questions of International Law, Address before the Hammarskjold Forum of the Association of the Bar of the City of New York (May 28, 1970), in 3 The Vietnam War and International Law: The Widening Context 23, 28-30 (Richard A. Falk, ed. 1972) (arguing that in an international armed conflict, if a neutral state has been unable for any reason to prevent violations of its neutrality by the troops of one belligerent using its territory as a base of operations, the other belligerent has historically been justified in attacking those enemy forces in that state).

In other words, the only role the Stevenson speech plays in the White Paper is to support the notion that an existing armed conflict can spill over borders into new states when those states become bases of operations by belligerents to the armed conflict. To the extent it relies on any particular statement in the Stevenson speech—and it does not quote any—it relies on his comments about historical practice, not his statements about Cambodia specifically. And it in no way hinges on what Stevenson said about the date on which U.S. military action in Cambodia began.

Moreover, even if the White Paper had depended in some way on the specific quotation Dudziak cites, I’m not sure I understand what the problem would be. The legal principle Stevenson articulates is either right or it’s not (I think it’s right). If it’s right, why should the fact that Nixon lied about the bombing of Cambodia effect our understanding of the lawfulness of the Obama administration’s views of its current authorities? Dudziak’s answer seem to lie in the fact that secrecy surrounds the drone program, just as it once surrounded the bombing of Cambodia:

The Cambodia bombing, far from providing a valuable precedent for today’s counterterrorism campaign, illustrates the trouble with secrecy: It doesn’t work. If Nixon had gone to Congress or announced the plan publicly, the historian Jeffrey P. Kimball has written, “there would have been an uproar.” But disclosure was ultimately forced upon him when he decided to send ground troops into Cambodia. A new wave of giant antiwar protests erupted, and Nixon’s ability to take further aggressive action became infeasible.

Barack Obama is, of course, no Richard Nixon—we expect better of him. And we deserve the transparency he promised us, not a new version of secret warfare.

But again, Dudziak is making the Stevenson quotation do far more heavy lifting than the White Paper is, in fact, asking it to do. The Obama administration does not cite it as “a valuable precedent for today’s counterterrorism campaign.” It cites it for the proposition that military action on the territory of neutral states can be lawful when that state has been unable to prevent its territory from being used as a base of operations by a belligerent party. That point has nothing whatsoever to do with secrecy.

And the administration has, by the way, publicly acknowledged conducting drone strikes against Al Qaeda leaders anyway.