Executive Power

Gabor Rona’s Response to My Post on Johnson v. Koh, with a Note on Ideological Opposition to Working with Congress

By Jack Goldsmith
Sunday, September 18, 2011, 5:22 PM

Below Gabor Rona has a sharp response to my earlier post on Charlie Savage’s story on the latest round of Johnson v. Koh.  I think his response significantly mischaracterizes both what I said and the proper state of the law, but Lawfare readers should examine it carefully to decide for themselves.  I do want to clarify one statement I made that Gabor and others have objected to, namely, that “the Obama team for ideological reasons is resisting going to Congress to get more authority to respond to threatening groups.”

Here is what I meant.  I think of an ideological view as one so deeply committed to a certain principle that one adheres to it in deciding how to act even when considerations of prudence overwhelmingly suggest another course of action.  The Obama administration has long resisted congressional efforts to give it up-to-date authorizations for military force, even when the proposed authorizations dovetailed with the arguments the administration was making in court.  It resisted these efforts even though some of its officials in public utterances acknowledged (a) that the administration was disinclined in counterterrorism efforts to rely on Article II as opposed to the AUMF, (b) that there was a growing gap between the groups the AUMF authorized force against and the groups that posed threats to the United States, and (c) that the administration does not have a well-worked out policy for what to do with high-value terrorists captured outside of Afghanistan.  And at least some of impetus for resisting congressional efforts despite these factors was (i) a concern, grounded in a vision of the proper scope of presidential authority, that Congress might bestow too much authority on the president, and (ii) a desire not to anger human rights groups that do not want to extend the conflict conceptually, geographically, or temporally.

To the extent that these characterizations are correct, then I do think it is proper to describe the Obama administration’s resistance to congressional assistance as ideological.  But here is a more charitable characterization.  First, despite the considerations above, and despite scattered suggestions to the contrary, the administration’s considered view is that a new congressional authorization is not necessary to meet any present threat.  Second, the administration thinks it cannot get any new authorities without accepting grants of authority that are so broad that, even if not exercised, they would cause diplomatic problems that would, on balance, harm the overall counterterrorism effort (by drying up cooperation, and the like).  Third, the administration believes that the new authorities might be used by future administrations in ways that would cause more harm than good.  It is hard to know to what degree these propositions are true (the third seems particularly speculative), but they are pragmatic rather than ideological reasons for not working with Congress, and they are more or less the views articulated by John Brennan in his speech on Friday.

So what is driving the opposition to working with Congress on renewed authorizations, the ideological cluster of motivations or the pragmatic ones?  A combination of both, probably.  But whatever the motivations, I would still add these points.  Here as elsewhere (think Libya) the administration seems more concerned with securing the assent of aspects of the international community than with working with Congress and dealing with Congress’s concerns.  That is not, I think, a wise course, for many of the same reasons that it was not wise for the early Bush administration to avoid Congress.  I also do not believe that the fear of not getting exactly what it wants from Congress is a good reason for the White House not to work with Congress.  That too sounds like the early Bush philosophy, though obviously in a quite different context.  Legislation is not a game of perfect, and refusing to play ball tends to lead Congress to act more aggressively over time, which is what has happened.

And now for Gabor’s response:

Jack’s apparent assertion that if a group falls under the AUMF then its “members” (whatever that means) can all be killed regardless of what they are or are not doing is anathema to the most fundamental principle of the international law of armed conflict. The principle of distinction prohibits killing, except of combatants or civilians who are directly participating in hostilities or who perform a continuous combat function. It is not hyperbole to suggest that Jack's argument is an invitation to indiscriminate killing. Yes, Jack does give lip service to the principle of distinction, but by the time he mentions it, he has eviscerated it.

And Jack is also wrong about what Jeh Johnson is reported to have said. Far from what Jack attributes to him, above, Johnson is reported only to claim that the United States can target "combatants" of any group that has "aligned itself with al Qaeda against Americans." This is also wrong, since the U.S. is not at war against all such groups. If their members are not participating in armed conflict against the U.S., there is no law of war justification for killing them. And absent armed conflict, if their members are not committing hostile acts against the U.S., there is no “self-defense” justification for killing them. But this is a far cry from Jack’s apparent assertion that any member of a group identified by Congress as subject to the use of military force is fair game.

Jack way overstates the scope of the AUMF. There is nothing in it to suggest that Congress meant to override the principle of distinction. Jack effectively disappears international law by assuming that if Congress authorizes the military to use force against a group, it necessarily makes that force not only subject to, but also legitimate under, the laws of war – as to any “member” of that group.

Jack makes two rather basic mistakes in comparing Koh vs. Kaddafi to Koh vs. terrorists. First, he compares apples to oranges by alleging that  Koh's position on a matter of jus in bello (the law of the right to use force in international relations, e.g., in Libya, where force was sanctioned by the Security Council) is inconsistent with his position on a matter of jus ad bellum (the law that prohibits targeting of all but legitimate military objectives in armed conflict). Second, he fails to distinguish targeting rules in international armed conflict (like U.S. vs. Libya, where any member of the enemy state’s armed forces may be targeted) and targeting rules of non-international armed conflict (like U.S. vs. al Qaeda, where “direct participation in hostilities” is the key to targetability). Whether you agree or disagree with either or both of Koh’s assertions, they are not incompatible.

Jack’s accusation that Koh is clothing policy arguments in the fabric of law is wrong. Koh is doing nothing more than applying long-established principles of IHL that are reflected in well-established rules of IHL. These rules are contained in international treaties to which the U.S. is a party, and are understood by treaty bodies, UN organs, international human rights mechanisms, international and domestic courts, and most nations as part of treaty and customary international law. If Johnson’s position on targetability is an outlier here (and it is) then Jack’s is beyond the horizon. The fact that this debate is even taking place is an indication, though, of how isolated the U.S. has become on matters of international humanitarian and human rights law since 9/11.

Jack dismisses as “ideological” the Obama administration’s opposition to an expanded AUMF that would effectively declare war everywhere, all the time and forever against God knows who. He argues that the administration's opposition to a more expanded AUMF will bite it in the backside when a group not subject to the narrower AUMF attacks us. That’s nonsense. It presumes a Congress that would balk at then approving military measures. And even if by then Congress is dominated by the Pacifist Party, I have no doubt that Jack will be on the front lines asserting the president’s inherent power to order military force.

Finally, Jack claims that Koh’s position that we can only attack individuals, not groups, is a product of advances in technology – as if before predator drones, it was ok for Lieutenant Calley to massacre an entire Vietnamese village because there may have been some VC among them. But even where technology does provide improved capabilities to implement the principle of distinction, that does not change the principle or the rule. To argue that we should be allowed to kill as indiscriminately using precision targeting technology as we could without it is, in fact, nothing less than another ill-conceived assault on basic rules of international law that protect us all.