We’ve talked a lot on this blog about what legal regime should prevail against remaining terrorist threats if and when the armed conflict with the Taliban and/or al Qaeda ends. Commander Michael Adams, the Deputy Legal Counsel to the Chairman of the Joint Chiefs (and a former student), has an excellent article addressing this issue in Harvard Law’s National Security Journal. The article describes President Obama’s aim to get the United States off of a perpetual wartime footing, and the policies the administration has implemented to move the country in that direction. It then discusses a legal archetype – which Mike calls jus extra bellum -- for national security activities conducted outside of armed conflict that Mike thinks will govern the continuing reality of significant, persistent threats. From the introduction:
This Article explains the international legal basis for national security activities outside of armed conflict through a legal architecture that I refer to as “jus extra bellum”—“the state’s right outside of war.” Jus extra bellum does not imagine that the end of war results in an entirely peaceful, safe planet. It does not feign ignorance of threats to national security nor erase states’ obligations to protect their citizens. It recognizes that a peaceful world is one in which states continue to conduct national security activities outside of armed conflict. Jus extra bellum accepts that such activities occur within a generally permissive international legal regime and are shaped by domestic legal authorities and obligations. It presents a legal archetype that would permit, for example: diplomacy; intelligence collection and sharing; influence operations that do not intrude on sovereignty, territory, or political independence as a matter of law, but inform and shape the perspectives of foreign populations; cyber defense and other cyber activities not rising to the level of a use of force; criminal law enforcement action undertaken with the consent and/or assistance of the government of the state in which the activities occur; security assistance and related activities to improve partner security capacity; advice and assistance against other states’ internal security challenges; economic measures like sanctions and seizures of assets; counter-proliferation efforts targeting weapons of mass destruction and improvised explosive devices; protection of natural resources; pandemic disease prevention and response; freedom of navigation and overflight assertions; peacekeeping operations; other national security actions undertaken pursuant to a UN Security Council resolution or other international legal authorization (e.g., counter-piracy operations); and certain discrete capture or lethal operations when required as a matter of national self-defense. For the purposes of this Article, the concept of jus extra bellum also provides an analytical framework for addressing hard questions about how the United States and its international partners will seek refuge from war while addressing the significant national security threats that persist in the future.
UPDATE: Here is a podcast interview Ben did with Commander Adams on this article a few weeks ago after Adams presented the paper at the MILOPS conference in Manila.