Raha Wala on Jeh Johnson's Oxford Speech

Jack Goldsmith
Friday, December 7, 2012, 10:28 AM
Raha Wala of Human Rights First writes in with this comment on Jeh Johnson's Oxford Speech:
Ken and Jack are right that DoD General Counsel Jeh Johnson, in his remarks at the Oxford Union, made a serious attempt to grapple with some hard issues associated with the “endgame” of the current conflict with al Qaeda. 

Published by The Lawfare Institute
in Cooperation With

Raha Wala of Human Rights First writes in with this comment on Jeh Johnson's Oxford Speech:
Ken and Jack are right that DoD General Counsel Jeh Johnson, in his remarks at the Oxford Union, made a serious attempt to grapple with some hard issues associated with the “endgame” of the current conflict with al Qaeda.  As with the series of remarks on targeted killings delivered by Obama administration officials, we at Human Rights First applaud this latest effort to articulate the administration’s views on such an important subject. And the subject really couldn’t be more important, as General Counsel Johnson himself emphasizes: “War” must be regarded as a finite, extraordinary and unnatural state of affairs.  War permits one man – if he is a “privileged belligerent,” consistent with the laws of war — to kill another.  War violates the natural order of things, in which children bury their parents; in war parents bury their children.  In its 12th year, we must not accept the current conflict, and all that it entails, as the “new normal.”  Peace must be regarded as the norm toward which the human race continually strives. I’d venture to say that within the hundreds—perhaps thousands—of sentences that various administration officials, including the President, have uttered on the law, policy, and ethics of ongoing counterterrorism efforts, these are among the most significant. General Petraeus’ now famous words in reference to the Iraq war—“Tell me how this ends”—have come to symbolize a truism that should resonate with us all after a decade of wars that have cost the lives of thousands of American soldiers, many more civilians, and over a trillion dollars: any armed conflict should have clear objectives and an exit strategy.  Jeh Johnson’s remarks correctly emphasize that the conflict with al Qaeda and associated forces—though unconventional in many ways—is no exception. What Johnson’s remarks do not focus on are the substantial opportunity costs associated with failure to articulate a clear exit strategy to the current conflict.  As Bobby writes about in a must-read law review article, we are approaching some tectonic shifts that threaten to destabilize the entire legal architecture governing U.S. military counterterrorism operations—despite what appears to be established consensus in domestic law. Twelve years after 9/11, as we face the end of major combat operations in Afghanistan, it will become increasingly difficult to sustain the claim that the United States is in an armed conflict against groups dispersed throughout the Middle East that that have primarily local ambitions and have had little, if anything, to do with 9/11 or any other major attack against the United States. Many of these groups do and will continue to pose a serious threat, but as a matter of law, it will be challenging—to say the least—to maintain the position that the situation on the ground amounts to an armed conflict with the United States.  Current detention, trial, and targeting authorities depend at least in part on maintaining that position, and it’s hard to see how military operations premised on an unstable legal foundation lend themselves to a sustainable counterterrorism strategy in the long-term. Even if smart lawyers can work with the caveats and qualifications in Johnson’s remarks that Jack identified to extend the armed conflict forward indefinitely, it makes good policy sense to begin preparing a post-war counterterrorism strategy now. The further the administration strays from an armed conflict (and corresponding law of war-based authorities) premised on 9/11, the al Qaeda organization responsible for those attacks, and the battlefield in Afghanistan, the closer it will get to probing judicial scrutiny, domestic and global outcry, investigations from allies and UN special rapporteurs, and a costly unilateral counterterrorism mandate. By contrast, the post-war counterterrorism strategy previewed by Johnson is more stable and better suited to dealing with evolving, dispersed, and decentralized terrorist threats over the long-term.  Such a strategy is primarily focused on law enforcement and intelligence efforts—both domestic and international—and it recognizes, as Johnson does, that we cannot “capture or kill every last terrorist who claims an affiliation with al Qaeda.” Moreover, the intelligence-gathering efforts undergirding kinetic operations in Yemen, Somalia or other areas where the U.S. is unable or unwilling to have boots on the ground are more complicated and less efficacious than in countries where the U.S. has a longstanding in-country presence.  The focus will necessarily have to shift to the law enforcement, security, and intelligence services of local partners, however complex relationships with such entities may be. A pragmatic post-war counterterrorism strategy should reserve the use of military force as a last resort for truly imminent threats—where using force would be on the most solid legal and ethical footing.  A broader, less targeted lethal targeting program risks replicating the results in Yemen, where analysts report that AQAP’s membership has grown almost proportionally with the increase in drone strikes.  Johnson—though commenting generally on not necessarily specifically about Yemen—importantly emphasizes the risk of fighting “an endless, hopeless battle that only perpetuates a downward spiral of hate, recrimination, violence and fear. Johnson's remarks also highlight a critically important human rights aspect to the threat of perpetual armed conflict.  The United States is not the first country to face a struggle with non-state armed terrorist groups, and it won’t be the last.  While al Qaeda’s global reach has added new and vexing challenges, in an era of increasing globalization, transnational threats should be considered the new normal even if—as Johnson put it—armed conflict shouldn’t.  For other countries seeking to deal with such threats though, the allure of the “armed conflict” banner—with its expansive authorities to detain, prosecute, and kill in the name of national security—could be quite appealing, especially if coupled with U.S. precedent as a model. That leaves us with a simple reality: if the United States is to be a global leader on human rights, it must be able to articulate clear and coherent limits to the scope of the armed conflict with al Qaeda—and the authorities that come with it. To that end, Johnson’s remarks provide valuable insight into some of the administration’s thinking on how the armed conflict might end, and how its current scope is limited.  Jack usefully dissects important caveats and qualifications within Johnson’s remarks to suggest that in practice we’re not likely to see the conditions necessary to bring an end to the armed conflict anytime soon. Jack may or may not be right about this, but it’s important not to miss the forest for the trees.  The question is not if the armed conflict with al Qaeda is ending, but when.  The administration has a lot to do to get there, and Johnson’s remarks were a good start.  But the hard work of transitioning to a post-war counterterrorism strategy needs to begin now.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

Subscribe to Lawfare