Balkinization  

Wednesday, May 30, 2007

Zelikow on "Legal Policy for a Twilight War" and an Alleged New Bush "Paradigm"

Marty Lederman

As noted below, the Times today reported on a lecture last month delivered by Philip Zelikow, Executive Director of the 9/11 Commission and, until recently, a close advisor to the Secretary of State. The lecture, entitled "Legal Policy in a Twilight War," was delivered at the University of Houston Law Center on April 26th and can now be read here.

I don't have time right now to blog about the many issues raised in this important lecture, but for a couple of brief reactions:

-- At the end of the lecture, Zelikow claims that even before the Hamdan decision in June 2006, which clarified that the CIA program was unlawful, a "transition" in the U.S. approach to the war against Al Qaeda, and interrogation in particular, "was already well underway in 2005 and all the main options had been fully developed before the Supreme Court ruled." Accordingly to Zelikow, the Executive branch "has made a comprehensive adjustment in its approach to the conduct of the armed conflict and associated operations against violent Islamist extremist groups such as al Qaeda."

The "new paradigm" that Zelikow describes has at least nine specified elements. I have a feeling that this is a bit of wishful thinking -- that although the "new paradigm" Zelikow describes surely is the preferred plan of action favored by the State Department, it is not necessarily the one the President will adopt, largely because of intense opposition from the Vice President's Office.

Why do I say this? Well, for one thing, one of the elements Zelikow identifies is an alleged decision "that America does intend to close Guantanamo," at least once it decides "how to replace and improve the Guantanamo detention system." This was, to be sure, the proposal favored by Secretaries Gates and Rice. But if press reports are to be believed, the President rejected this view, on the advice of Cheney and Gonzales:
Mr. Gates’s arguments were rejected [by the President] after Attorney General Alberto R. Gonzales and some other government lawyers expressed strong objections to moving detainees to the United States, a stance that was backed by the office of Vice President Dick Cheney, administration officials said. . . . Some administration lawyers are deeply reluctant to move terrorism suspects to American soil because it could increase their constitutional and statutory rights — and invite an explosion of civil litigation. Guantánamo was chosen because it was an American military facility but not on American soil.


Also, Zelikow claims that another element of the new "paradigm" is to reserve military commission trials for the big fish directly involved in terrorist activities, against whom such trials have historically been used -- "for major war criminals and al Qaeda’s leaders, not Osama’s driver."

So much for that element of the "paradigm."

As for interrogation techniques in the alleged new paradigm, Zelikow refers to a decision "to transition such a special interrogation program so that it has different capabilities, different goals, and different methods. Guidelines for future treatment of such captives will be developed in consultation with Congress so that the Executive can sustain an important intelligence collection program for the future." He also claims that a decision has been made to put the CIA program "in a more durable legal framework" that will "reiterate[] America’s commitment against torture, but also accepts, as a minimum standard, that America will adhere to common Article III of the Geneva Conventions."

It remains to be seen whether the Administration will adhere to these aspirations. The imminence of the draft Executive Order reauthorizing CIA "enhanced" techniques that will almost certainly violate Common Article 3 is surely not an auspicious omen.

-- The principal thrust of Zelikow's lecture is that many of the decisions in this armed conflict, especially concenring interrogation methods, have been too dominated by legal determinations. In this respect, Zelikow is critical of both the Administration officials and its critics -- he strongly believes that far too much attention has been paid to questions of what is legal, and not remotely enough to questions of what is moral, and what the practical and long-term costs might be of adopting certain policies.

"[M]y argument," writes Zelikow, "is that the substitution of detailed legal formulations for detailed moral ones is a deflection of responsibility."

Surely that is correct. The fact that something is (arguably) legal does and should not come close to resolving the question of whether that course of action should be adopted. And all too often in this Administration, it has appeared as though once the lawyers developed a legal justification, it was all-systems-go, damn the consequences, with little regard for any moral calculus or a serious long-term view of the potential costs.

But it does not follow that the law is unimportant, or that critics of the Administration -- who have not been shy about relying on moral, pragmatic, diplomatic and strategic arguments, as well -- should abjure the resort to legal arguments. After all, if something is illegal -- such as the cruel treatment proscribed in Common Article 3 -- that ought to be the end of the discussion of whether to employ such a technique. The question of legality, in other words, does not, as Zelikow suggests, "obscure[] the core of the issue," any more than it displaces the "core" moral and pragmatic questions. Rather, it precedes those core questions, and might, as in this case, actually preclude the need to fight about such core issues in cases where there might be dissensus within the government.

-- Finally, some important excerpts:
These dilemmas are not new in American history. There is a long history of experience with questioning captives, both in law enforcement and in several recent American wars. I n World War II, for example, the United States had a special program for high-value captives; the British had a comparable program. The threats were very great; the fate of thousands of lives could hang in the balance in many ways and on many issues (from antisubmarine warfare to A-bomb research to campaign plans, etc.). There was much trickery and deception. But, as far as I know, neither government found it necessary to use methods analogous to those our government has more recently chosen. Some of these periods, like World War II, were hard and degrading. The moral climate was not quaint. Horrifying methods were authorized to win the war. But men like Henry Stimson or George Marshall – or Winston Churchill -- did not rely on lawyers to tell them what was right and wrong. It is difficult to imagine such men recommending analogous interrogation techniques for President Roosevelt, much less doing the clever work of developing and designing them.

Good intelligence can be gained by physically tormenting captives. Some critics argue that physical coercion is always worthless and elicits garbage. This goes too far. Various experiences have shown that these methods can have value in breaking captives, and in doing it more quickly. But the issue of how to obtain intelligence from questioning captives is a first-class intelligence collection problem. In every sense, it deserves the same professional attention that the United States devotes to its most important and powerful collection systems – like those we use for signals and imagery. . . . The Israelis and the British have considerable recent experience with all the pros and cons, much of it a process of painful trial and error. . . . It is not evident that those who developed such methods, mainly at the CIA, drew on the available evidence and applied adequate professional analysis to consider it. From the evidence available in the unclassified literature, in 2002 the CIA had little organizational capability or experience in the interrogation of hostile captives. The FBI and other law enforcement agencies had much more relevant experience. The Department of Defense had some. Everyone knows the scenario of the imminent terrorist operation that can be averted with desperately tough methods. But the ‘ticking time bomb’ scenario is mainly the invention of scriptwriters.

Intelligence is usually more of a patiently assembled mosaic, where many pieces are usually missing, and leads are pursued to find more pieces. And even broken captives can reveal much, while hiding a little. The administration cites examples of people who have been caught or operations that may have been stopped. It would be useful to have a professional, objective analysis of such successes in order to determine and illustrate the contributions of various forms of intelligence. In such an analysis, the elementary question would not be: Did you get information that proved useful? Instead it would be: Did you get information that could have been usefully gained only from these methods? --

[A] special intelligence program can actually derive its main added value from the readiness to devote a great deal of individualized time and expert attention to a high-value captive -- not from coercing him. No institution would benefit more from such an objective appraisal than the CIA itself. A reputation for relying on physical coercion can have some benefits, of course. But, over the long-run, it might be better for the institution if CIA was regarded as special for its willingness to apply patient, labor-intensive expertise, rather than a (largely false) reputation of having the opposite preference. Finally, once the gain from coercive techniques is better and more professionally understood, there is still the next step in the policy analysis, of balancing these gains against the moral stain and the political cost of relying, or appearing to rely, on physical torment.

Comments:

Interesting stuff. I'm glad you bolded the portion of Z's speech that you did -- that's the single most overlooked issue in the whole "efficacy of torture" debate, IMHO. Sure, some good info will be obtained from torture; but why assume that we wouldn't have done as well, or better, without it?

Re: Z. on the CIA program, it seems to me that he doesn't *expressly* say that the CIA program was using "physical torment," etc. He's a bit more coy than that:

My own view is that the cool, carefully considered, methodical, prolonged, and repeated subjection of captives to physical torment, and the accompanying psychological terror, is immoral.
 

Good intelligence can be gained by physically tormenting captives. Some critics argue that physical coercion is always worthless and elicits garbage. This goes too far. Various experiences have shown that these methods can have value in breaking captives, and in doing it more quickly. But the issue of how to obtain intelligence from questioning captives is a first-class intelligence collection problem. In every sense, it deserves the same professional attention that the United States devotes to its most important and powerful collection systems – like those we use for signals and imagery. . . . The Israelis and the British have considerable recent experience with all the pros and cons, much of it a process of painful trial and error. . . . It is not evident that those who developed such methods, mainly at the CIA, drew on the available evidence and applied adequate professional analysis to consider it. From the evidence available in the unclassified literature, in 2002 the CIA had little organizational capability or experience in the interrogation of hostile captives. The FBI and other law enforcement agencies had much more relevant experience. The Department of Defense had some. Everyone knows the scenario of the imminent terrorist operation that can be averted with desperately tough methods. But the ‘ticking time bomb’ scenario is mainly the invention of scriptwriters.

Intelligence is usually more of a patiently assembled mosaic, where many pieces are usually missing, and leads are pursued to find more pieces. And even broken captives can reveal much, while hiding a little. The administration cites examples of people who have been caught or operations that may have been stopped. It would be useful to have a professional, objective analysis of such successes in order to determine and illustrate the contributions of various forms of intelligence. In such an analysis, the elementary question would not be: Did you get information that proved useful? Instead it would be: Did you get information that could have been usefully gained only from these methods?


The speaker largely answered his question long before he posed it, rendering the trailing question essentially rhetorical.

I would agree we could and probably have already learned a great deal in this area from the Brits and Israelis. I imagine a great deal of this has not been declassified in the CIA manual to which the speaker refers and to which I have perviously linked. The methods being used by the CIA did not come out of thin air.

I would disagree than most actionable intelligence can be gathered through months of patient assembly. When the enemy captures a high value target, our military and al Qaeda will assume that the target is compromised and has revealed what he knew to interrogators. Both our military and al Qaeda will adjust our operations in this anticipation so the enemy exploitation of the intelligence is limited.

For example, when we captured Khalid Sheik Muhammad, the CIA was not after his confession. They wanted actionable intelligence on the identity and location of enemy cells. If the enemy found out that KSM had been captured, these cells would be moved. Thus, time was of the essence if the US was going to exploit what KSM knew to roll up large parts of the al Qaeda network, which they did.
 

In March 2007, after four years in captivity, including six months of detention at Guantanamo Bay, Khalid Sheikh Mohammed — as it was claimed by a Combatant Status Review Tribunal Hearing in Guantanamo Bay — confessed to masterminding the September 11th attacks, the Richard Reid shoe bombing attempt to blow up an airliner over the Atlantic Ocean, the Bali nightclub bombing in Indonesia, the 1993 World Trade Center bombing and various foiled attacks. - wikipedia

note the four years of interrogation Bart. he was known as a notorious liar as well and was responsible for many a wild goose chase.

oh, yeah, there are allegations we tortured his children.

Ali Khan, the father of Majid Khan, another one of the fourteen "high-value detainees", released an affidavit on Monday April 16, 2006, that reported that interrogators subjected Khalid Sheikh Mohammed's children, aged six and eight years old, to abusive interrogation.[27][28][29] Ali Khan's affidavit quoted another of his sons, Mohammed Khan:

"The Pakistani guards told my son that the boys were kept in a separate area upstairs, and were denied food and water by other guards. They were also mentally tortured by having ants or other creatures put on their legs to scare them and get them to say where their father was hiding."
- wikipedia

at least they weren't sodomized, eh Bart?
 

In March 2007, Mohammed testified before a closed-door hearing in Guantánamo Bay. According to transcripts of the hearing released by the Pentagon, he said "I was responsible for the 9/11 operation, from A to Z." The transcripts also show him confessing to: organizing the 1993 World Trade Center bombing; the Bali nightclub bombings; and Richard Reid's attempted shoe bombing. He also confessed to planning attacks on Heathrow Airport and Big Ben clock tower in London, Pearl's murder in 2002, and planned assassination attempts on Pope John Paul II, Pervez Musharraf and Bill Clinton.[30]

On March 15, 2007, BBC News reported that "Transcripts of his testimony were translated from Arabic and edited by the US defence department to remove sensitive intelligence material before release. It appeared, from a judge's question, that Khalid Sheikh Mohammed had made allegations of torture in US custody". In the Defense Department transcript, Mohammed said his statement was not made under duress but Mohammed and human rights advocates have alleged that he was tortured. CIA officials have previously told ABC News that "Mohammed lasted the longest under water boarding, two and a half minutes, before beginning to talk.".[31] Legal experts say this could taint all his statements. Forensic psychiatrist Michael Welner, M.D., an expert in false confessions, observed from the testimony transcript that his concerns about his family may have been far more influential in soliciting Mohammed’s cooperation than any earlier reported mistreatment
- wiki
 

and isn't this just priceless!

On March 19, 2007 Ahmed Omar Saeed Sheikh's lawyers cited Mohammed's confession in defense of their client.[35][36] Ahmed Omar Saeed Sheikh, also known as Sheikh Omar, was sentenced to death in a Pakistani court for the murder of Daniel Pearl. Omar's lawyers recently announced that they planned to use Mohammed's confession in an appeal. They had always acknowledged that Omar played a role in Pearl's murder, but argue that Mohammed was the actual murderer.
 

you might want to consider this Bart. pssst... it's from an expert!

Whatever the physical methods used with Mohammed, the experienced interrogators of American intelligence know that over time, building relationships and personal rapport are necessary to yield the level and sheer quantity of information that Mr. Mohammed has revealed. The benefit of torture is debated hotly, with some endorsing its use. But all high-value prisoners are needed for the quantity of their information, and such interrogations require time and rapport and negotiation. Torture changes the dynamic and creates obstacles to long-term quantity for those interrogators seeking immediate-term details.
 

and not to leave out AG Gonzalez's statements NOT under oath on March 7, 2005, roughly two years ago.

In an interview with three news agencies Monday, US Attorney General Alberto Gonzales denied renewed allegations that pursuant to an executive order issued after the September 11 attacks the CIA had flown as many as 150 terror suspects to foreign jurisdictions where they would be tortured. The New York Times published a story containing the allegations Sunday, picking up on individual reports and claims by former detainees that have been circulating for some time. Gonzales acknowledged, however, that once prisoners were turned over to countries like Egypt, Saudia Arabia, Syria, Jordan and Pakistan, whose various security services have all been cited by the State Department for abusing detainees, there was little the United States could do, although he said the US did require "additional assurances" from those countries that prisoners arriving there would not be maltreated.

The same additional assurances he provides to Congress and the country.

Gonzales must go.
 

One argument in favor of their use: time. In the early days of al Qaeda captures, it was hoped that speeding confessions would result in the development of important operational knowledge in a timely fashion.

However, ABC News was told that at least three CIA officers declined to be trained in the techniques before a cadre of 14 were selected to use them on a dozen top al Qaeda suspects in order to obtain critical information. In at least one instance, ABC News was told that the techniques led to questionable information aimed at pleasing the interrogators and that this information had a significant impact on U.S. actions in Iraq.

According to CIA sources, Ibn al Shaykh al Libbi, after two weeks of enhanced interrogation, made statements that were designed to tell the interrogators what they wanted to hear. Sources say Al Libbi had been subjected to each of the progressively harsher techniques in turn and finally broke after being water boarded and then left to stand naked in his cold cell overnight where he was doused with cold water at regular intervals.

His statements became part of the basis for the Bush administration claims that Iraq trained al Qaeda members to use biochemical weapons. Sources tell ABC that it was later established that al Libbi had no knowledge of such training or weapons and fabricated the statements because he was terrified of further harsh treatment.

"This is the problem with using the waterboard. They get so desperate that they begin telling you what they think you want to hear," one source said.
 

The CIA sources described a list of six "Enhanced Interrogation Techniques" instituted in mid-March 2002 and used, they said, on a dozen top al Qaeda targets incarcerated in isolation at secret locations on military bases in regions from Asia to Eastern Europe. According to the sources, only a handful of CIA interrogators are trained and authorized to use the techniques:

1. The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes him.

2. Attention Slap: An open-handed slap aimed at causing pain and triggering fear.

3. The Belly Slap: A hard open-handed slap to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.

4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.

5. The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.

6. Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.

According to the sources, CIA officers who subjected themselves to the water boarding technique lasted an average of 14 seconds before caving in. They said al Qaeda's toughest prisoner, Khalid Sheik Mohammed, won the admiration of interrogators when he was able to last between two and two-and-a-half minutes before begging to confess.

"The person believes they are being killed, and as such, it really amounts to a mock execution, which is illegal under international law," said John Sifton of Human Rights Watch.
 

Garth:

All in a day's work for Himmle... uh, I mean "Bart"....

Cheers,
 

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Garth said...

In March 2007, after four years in captivity, including six months of detention at Guantanamo Bay, Khalid Sheikh Mohammed...

note the four years of interrogation Bart. he was known as a notorious liar as well and was responsible for many a wild goose chase.


KSM was al Qaeda's operations officer and primary planner for nearly a decade before we caught him. I imagine, after we squeezed him for all the actionable intelligence we could get on active cells, that we questioned KSM for years as to all aspects of al Qeada and cross checked his statements with the statements given by other captures until we arrived at an approximation of the truth. That is how the game is played.

oh, yeah, there are allegations we tortured his children.

It is curious how you credit enemy propaganda as gospel truth and reject anything from your own country.

Ali Khan, the father of Majid Khan, another one of the fourteen "high-value detainees"...

As I posted before on a thread dedicated to this prisoner, Khan was captured just days after KSM and was likely a member of one of the cells which KSM gave up under coercive interrogation. Two previously convicted al Qaeda have also given testimony that Khan was a financial supplier for al Qaeda in the US.

and isn't this just priceless!

On March 19, 2007 Ahmed Omar Saeed Sheikh's lawyers cited Mohammed's confession in defense of their client.[35][36] Ahmed Omar Saeed Sheikh, also known as Sheikh Omar, was sentenced to death in a Pakistani court for the murder of Daniel Pearl. Omar's lawyers recently announced that they planned to use Mohammed's confession in an appeal. They had always acknowledged that Omar played a role in Pearl's murder, but argue that Mohammed was the actual murderer.


It is priceless if the intelligence gained from KSM partially exonerates another falsely accused of doing what KSM did. However, you have to concede that the CIA's methods work to make this argument.

Whatever the physical methods used with Mohammed, the experienced interrogators of American intelligence know that over time, building relationships and personal rapport are necessary to yield the level and sheer quantity of information that Mr. Mohammed has revealed.

This is almost certainly true.

Coercive interrogation techniques are not the end all and be all of intelligence gathering. I have been arguing for months now that we should use the entire spectrum of effective interrogation methods short of torture.

The argument is not whether we should choose between hard coercive and and soft techniques. Rather, the issue is whether we should use all of the techniques available to us or just some of them.

One argument in favor of their use: time. In the early days of al Qaeda captures, it was hoped that speeding confessions would result in the development of important operational knowledge in a timely fashion.

It was more than a hope. Tenet confirmed it, Zelikow admitted it and there are other sources which have corroborated it.

However, ABC News was told that at least three CIA officers declined to be trained in the techniques before a cadre of 14 were selected to use them on a dozen top al Qaeda suspects in order to obtain critical information.

This paragraph is a red herring which has nothing at all to do with the effectiveness of these methods.

In at least one instance, ABC News was told that the techniques led to questionable information aimed at pleasing the interrogators and that this information had a significant impact on U.S. actions in Iraq.

I doubt that prisoners gave false information in only one circumstance. I am sure they frequently gave misinformation until their stories could be cross checked against one another. This is par for the course.

As soldiers, we were trained not to give any information rather than making up stories which can be cross checked and come back to bite us. If we are treated under Geneva Convention rules, this is easy to carry off for a long period of time. However, as is usual for our enemies, we are tortured, then we are supposed to hold out as long as possible before saying anything and then give vague general statements.

According to CIA sources, Ibn al Shaykh al Libbi, after two weeks of enhanced interrogation, made statements that were designed to tell the interrogators what they wanted to hear.

al Libbi's statements are a source of dispute within the CIA. The CIA does not have anyone else or other documents to cross check al Libbi's information against. That is the key to a successful interrogation.

His statements became part of the basis for the Bush administration claims that Iraq trained al Qaeda members to use biochemical weapons..

The key word here is "part." There was other information which has not been leaked and we have confirmed that al Qaeda's base in Iraq operated a chemical weapon lab along with Arabic manuals, NBC suits and atropine nerve gas antidotes.
 

waaaa, waaaaa, waaaaa...

bootlickling sho dew suit me!

some people jus' don' haf rights!



Bart, assuming my posts are correct, would you be appalled?
 

Bart said:

There was other information which has not been leaked and we have confirmed that al Qaeda's base in Iraq operated a chemical weapon lab along with Arabic manuals, NBC suits and atropine nerve gas antidotes.

So if this information has not been leaked, why are you revealing it to us now? Is this information on a par with the IEDs that were so proof positive of Iranian involvement with the insurrection against our occupation that it was delivered in Iraq by unnamed sources without the ability to verify the data.
 

I would disagree than most actionable intelligence can be gathered through months of patient assembly. When the enemy captures a high value target, our military and al Qaeda will assume that the target is compromised and has revealed what he knew to interrogators. Both our military and al Qaeda will adjust our operations in this anticipation so the enemy exploitation of the intelligence is limited.

You watch way too many movies.

Honestly the opinion of one political hack lends nothing to the argument that torture works.
 

"Bart" DePalma loves moving the goalposts (or "reframing the issue", or "begging the question", or whatever you want to call his specious form of argumentation):

The argument is not whether we should choose between hard coercive and and soft techniques. Rather, the issue is whether we should use all of the techniques available to us or just some of them.

No, the issue is what "techniques" should be available. If we define all "techniques" as available, that would include, for instance, beating people to death, crushing their kids testicles, raping their women relatives, etc.. They are certainly "available", and I'm sure some hack "law perfesser" from Boalt would be sure to vouch for their legality, some DUI shyster from Colorado would insist from here to aeternity that they should be used if they'd "do any good", and a bunch of Republicans in the audience of a preznitdential debate would get up and applaud when the candidates would suggest not only doing that, but giving them a couple gratuitous kicks to the nuts for good measure.

I really don't know any principled limit to what should be allowed once you adopt the Shutzstaf... -- umm, sorry, maladministration -- 'philosophy' on fighting the Great War On A Noun. In fact, it wouldn't matter if there was any, because the advocates have no principles (certainly not "Bart", as evidenced by this colloquy).

As I've repeatedly said, when the question is what the law should be on torture, it should be illegal ... and with a expansive definition of torture, otherwise phrased as:

"(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

You think you need to torture, then go for it. Just be prepared to pay the price, knowing you "did a good thing".

I get the feeling that "Bart", lacking principles, would be the first to whine and bitch if he got his nuts kicked because someone thought it "worthwhile" or "expedient". But I can think of far worse crimes.

Cheers,
 

"Bart" DePalma toots the Mighty Wurlitzer:

[Garth]: His statements became part of the basis for the Bush administration claims that Iraq trained al Qaeda members to use biochemical weapons..

The key word here is "part." There was other information which has not been leaked and we have confirmed that al Qaeda's base in Iraq operated a chemical weapon lab along with Arabic manuals, NBC suits and atropine nerve gas antidotes.


A different person who also chooses the nom de plume "Bart" once said:

"The poster citing to an authority to make an argument, not the reader, has the responsibility to link to that authority if possible."

Methinks that Mr. DePalma should choose another nick so that people don't confoose him with that other guy that made a valid point once.

Cheers,
 

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Prof. Zelikow makes some great points about interrogation, but I question his conclusions about the role of law and lawyers and about why (and whether) the U.S. has had difficulty selling the world on an armed conflict paradigm for its counter-terrorism efforts.

First, he mentions that the lawyers were brought in to do post hoc justification of the administration's interrogation practices, but then he does a 180, blaming bad interrogation behavior on the results of legal analysis - an almost unintended consequence of mistakenly placing lawyers (who do "can" and "cannot") in the role of policymakers (who do "should" and "shouldn't"). The how and why of the Justice Department’s "torture memos" make quite clear that Zelikow got it right in the beginning, but then lost the thread of his own argument. The lawyers were not merely asked to give an opinion on the outer limits of interrogation legality. Instead, it all began with interrogators who were getting nervous that the techniques they were authorized to use constituted torture or lesser degrees of abuse amounting to war crimes. They did not want to risk being scapegoated, and so, the Department of Justice was called upon to provide them with legal cover.

The legal justifications for torture put forth by the "brilliant" (according to Zelikow) Justice Department lawyers such as John Yoo, are almost universally recognized by constitutional scholars as sophomoric. But criticism of the legal analysis misses the point. The official (and then secret) justifications of torture did not have to be correct. They served their purpose – to provide legal cover to interrogators who would rely on them – merely by existing. Zelikow's flawed analysis effectively, even if unintentionally, rationalizes a cover-up of war crimes.

Zelikow’s analysis of whether the "war on terror" is law enforcement or armed conflict is also flawed. First, let me make clear that unlike some law of armed conflict experts, I do not doubt that a state can be at war against a transnational, non-state sponsored armed group, e.g., that the U.S. can be at war against al Qaeda. But Zelikow's approach is conclusory.

Rather than ask whether or not the indicia of armed conflict - the facts requisite to triggering the application of the law of armed conflict - are present, he begins with a series of statements alleging the inconvenience of a criminal justice approach, but not really analyzing the pros and cons. In a similar vein, he then chides other states for declining to accept the armed conflict paradigm (without citing evidence that they have indeed done so) because they are pacifists, or because they are hard-wired to do the opposite of what the U.S. does, or because they have not suffered like we have suffered. Still no discussion of whether or not the factual criteria for armed conflict are present: who are the parties? what is their level of organization? what territory is implicated? what is the frequency and severity of attacks? And if the law of armed conflict does apply because the requisite criteria are present, then what might be the temporal and geographic limits of its application?

When Zelikow addresses how the U.S. might have contributed to the reticence of other states to accept the idea of armed conflict, he focuses on antipathy to the unilateralist approach taken by the U.S. But he makes no mention of the possibility that other states, especially ones with more recent war experience on their own soil than the U.S., may be reluctant to climb on the "war on terror" bandwagon because they have a somewhat more respectful attitude for the laws of armed conflict than that exhibited by the U.S.

There is a familiar sub-textual suggestion in Zelikow's presentation: the law is unclear, or it is quaint, or the issues are not really legal ones. Yes, there are difficult issues: when does violence become armed conflict? how, if at all, do different legal regimes such as the law of armed conflict and human rights law and domestic law apply to targeting, detention, treatment and trial in transnational situations of armed violence that do not pit state A against state B? And within the U.S., who gets to decide these things? But there are answers to these questions for those willing to give the rule of law its due. And the lawyers who know this stuff can also articulate why the rules are the way they are, what policy imperatives they serve, and what the consequences of choosing to ignore them are. Prof. Zelikow, by seeming to divorce policy from law, or by elevating policy over law, misses an important step of first determining whether true comportment with law can suggest and inform rational policy options.

His invocation of the spirits of Stimson, Marshall (George), Roosevelt and Churchill – tough guys in tough times – to denigrate law is both inaccurate and ill-advised. In the First World War soldiers hors de combat (those injured, sick or who had surrendered) were likely to be killed on the spot or badly abused in captivity. In contrast, during the Second World War they stood a much better chance of being taken captive and treated more humanely - by the Germans as well as by others. The difference between the two wars was the promulgation, after World War I, of the Third Geneva Convention on the treatment of PoWs.

In 20th and 21st century warfare, lawyers in the U.S. and in other countries have played a pivotal role even on the battlefield. They vet target selection for comportment with the principles of distinction (military objectives: OK; civilian objects: not OK) and proportionality (weighing military advantage against civilian harm). This protects their own troops from exposure to war crimes liability and promotes the overall mission by controlling damage in the battle for hearts and minds.

Zelikow warns about the danger of letting hypothetical-wielding lawyers rush in where wise policy gurus should be making the calls. But the Administration has created such a harmful mess by ignoring the advice of its career military lawyers and instead, allowing its "policy" consiglieres to trump long-standing practices and rules that faithfully implement international legal obligations in armed conflict, such as AR 190-8, the regulation that implements the procedure for distinguishing between combatants and civilians in armed conflict.

There's something suspect in the phrase I once heard from Vladimir Putin - something about establishing a dictatorship of the rule of law. But while slavish kowtowing to law may be creepy, I'd still rather take my chances with a bunch of lawyers arguing it out in daylight, than with policy mavens who don't know the law, don't understand the effect of the law, and don't appreciate the larger purposes that it serves. And just because those policy ideologues use lawyers as their secret cloak, it doesn't make law the culprit.

Call me quaint.
 

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