Kenneth Anderson on Baumann v. Wittes

By Benjamin Wittes
Wednesday, December 1, 2010, 5:09 PM

Over at Mother Jones, Nick Baumann offers a thoughtful response to my post yesterday, which in turn responded to his earlier post on Al Aulaqi. I don't mean to respond further, since I think the exchange as it is nicely illuminates the points of dispute between us. But I did want to share the following thoughts sent my way by the estimable Kenneth Anderson in response to the dialogue. As you will see, Ken takes--and thinks the government takes--a rather looser view of imminence than I describe in the exchange:

I think you are giving away more than you need or intend regarding imminence. In the heated arguments over self-defense, two claims are often made: One claim is that self-defense can never be anticipatory, on the grounds of the U.N. Charter requiring an armed attack or the assent of the Security Council or something similar, and it is not in my opinion serious in light of actual state practice and opinio juris.  Others will disagree as scholars, to be sure, but the more fundamental point is that the State Department would likely not disagree, given its "considered view" as to the meaning of self-defense.

This is important, in part, because the nature of public law has so fragmented on these kinds of questions, in my view, that it is more proper to speak of it as seen by a particular kind of actor, rather than declaring the law as such. What I suggest here is best understood as, first, my sense of how the U.S. government has seen these matters as law over the long run of time; and moreover a plausible interpretation of the law.  

The second claim is that anticipatory self-defense requires some standard of imminence that means something close to troops massing on the border or something similarly dire and specific and immediate. The U.S. has never held to this view either.

At least since 1980 (as articulated by the State Department in those years in relation to Libya and elsewhere) and likely before that, the U.S. has taken the position that imminence can be shown by a pattern of activity and threat that show the intentions of actors. This can satisfy imminence whether or not those intentions are about to acted upon. Even events taking place in the past can suffice if the risk is severe enough, and those events can include meeting, planning, and plotting.  It is not necessarily or only about a threatened specific event, but about a group or a threat in some broader way. This is sometimes called “active self defense.” The Caroline doctrine is often cited as contrary precedent—requiring a threat that is overwhelming, instant, and the like. But, in fact, the U.S., in its statements and practice, has never adhered to that doctrine at least as interpreted that narrowly, and neither have other states that have faced serious and real security threats.

You are correct that with respect to those with whom we are in an armed conflict, the the imminence requirement has no application with respect to any particular person taking part in hostilities; the conflict is long since underway. Participants can be targeted at will.  Applying the idea of active defense to naked self defense outside of armed conflict, and it means that the standard for anticipatory action can be met on the basis of articulating a pattern of behavior, in which the behavior at this very moment or a single threatened event at this very moment is not the controlling factor. The reasons why that is so should be obvious. The use of force has to be planned in a way governed by prudence and practical considerations; as Walzer said in a related context, it is not for the lawyers or moralists or Bishops to say when the “last resort” has been reached, it is a matter of moon and tides and politics and all that, not some metaphysical condition.

In other words, a pattern of behavior in the case of terrorists reaching over years and years, in which the terrorists have planned, conspired and perhaps acted in other places in a strategic pattern, not merely an immediate or tactical one. It is a point not well understood in the academy, in my view, which is mesmerized by the Caroline language to the exclusion of what the US has actually done and said over the years.  It is quite true that how one draws the line between permissible anticipatory self defense and prohibited aggression will be subject to argument; it always will be, and there will also always be disputed good faith alternatives.

Finally, the ACLU and CCR’s use of the language of “last resort” is inapplicable here. It is a phrase common in just war ethics, but it is not the language of international law. The use of force is never truly the last resort, as one could always try another diplomatic note, another request to the Security Council, or another request to the government of Yemen. Last resort is a not a controlling legal concept, and even as a criterion in just war theory, it is a political judgment as to when the point that justifies action is reached, not some physical or even moral condition. It is practicality and prudence as much as anything, and it reaches to the strategic nature of the threat posed, not merely its tactical expression at any given moment.