International Law: LOAC

France: At “War” With Radical Islam: A Brief Response to Jack Goldsmith

By Bryan Cunningham
Sunday, January 11, 2015, 9:47 AM

If someone had predicted a day that I would be agreeing with France’s socialist party Prime Minister more than with Jack Goldsmith, I would have told them I was more likely to be attacked by a crazed guinea pig (two of which we adopted for Christmas so maybe not all that unlikely).  But that day appears to be today.  Jack argues that the “tired” distinction between war and law enforcement I drew in my prior posting is “useless.”  Apparently it isn’t to the French people and it shouldn’t be to Americans either.  Prime Minister Valls' declaration Saturday that France is “at war” with radical Islam reminds us of several fundamental truths: first, that being “at war” is at least as much a political decision as it is a legal one. But it is hardly unimportant or useless. It is important to how a nation’s people view a threat to their security.  It is important to how our enemies view our resolve and seriousness in fighting them.

It is important to whether we prioritize a whack-a-mole approach of criminally prosecuting individuals after terrorist attacks or we aim to prevent the attacks as our primary objective---through intelligence gathering (which includes not lawyering up or preemptively killing every enemy terrorist we identify), through non-criminal detention to keep enemies from returning to the battlefield, and related measures---or we prioritize criminal prosecutions and declaring “victory” and removing our military and intelligence assets from foreign battlefields, leaving them clear for the likes of ISIS.  And, yes, it is important legally. The second thing we seem to constantly need to be reminded of is that a “war” doesn’t end just because a politician says it does.  If our enemies are still at war, so are we.

I suspect Jack and I will find we disagree less about the substantive legal aspects of combatting terrorism than this current semantic dustup suggests. For now, though, I did want to clarify something in my prior post. I was not at all suggesting that dedicated, serious lawyers, in and out of government, certainly including Jack, my former boss John Bellinger, and others, had not devoted significant intellectual capital and time (often pro bono) to these important issues, only that we had collectively failed to come up with stable, long-term, internationally (or even domestically) agreed solutions, too often retreating to our separate ideological corners, including the particularly flawed corner holding that because some terrorists have been convicted in criminal courts in the United States after attacks, everything is working fine and we don’t need alternatives. Here is one of many examples of our collective professional failure to lay the groundwork for ongoing and future armed conflict that appears, tragically, more likely to escalate by the day.  If Jack’s real point is that we still have much substantive work to do but that he doesn’t like the labels “war” vs. “law enforcement,” fair enough but, in the absence of a better shorthand as to the two approaches which, to be sure, are often blended, it seems to me still a good way to frame the poles of the debate, understanding that no solution will ever be 100 percent one or the other. If, though, his point is that there’s no need anymore to debate the merits, failures, and implications, of the two approaches, then I strongly disagree.

I suppose it is possible that we will not need the kind of new domestic and international legal regimes I’m suggesting we get bus(ier) on creating, and that, as Jack suggests, “groping towards a middle way” will be good enough. But I’d rather have new, agreed legal solutions and not need them than need them and not have them. We saw, after September 11, 2001, what happens when we try to make new law and policy on the fly after a catastrophic attack. Though the prevention of future attacks for the ensuing decade was a miraculous achievement, some of the initial policy and legal choices, made in the heat of the moment and under constant and significant threat were, in some ways that Jack himself later had to reverse, not pretty.