Legal policy for a twilight war.

I. How LAWYERS FOUND THEMSELVES AT THE CENTER

OF THE POLICY DEBATE II. REFRAMING THE DEBATE: FROM "CAN" TO "SHOULD" III. A LEGAL POLICY PERSPECTIVE: SHOULD WE TREAT

THIS AS AN ARMED CONFLICT? IV. A LEGAL POLICY PERSPECTIVE: QUESTIONING

CAPTIVES

A. The Moral Question

B. Analyzing Cost Effectiveness

V. THE TRANSITION OF THE AMERICAN APPROACH

DURING 2006

After the 9/11 attack on the United States, the U.S. government adopted a different approach to defending the country against attack from the al Qaeda organization, its affiliates, and its allies. The new approach was fundamentally sound. Yet, it was developed and implemented in a flawed manner, and these problems were then greatly compounded by the way law and lawyers were used to rationalize the policy and frame the debate.

In 2006, the policy approach was greatly revised, though the character and significance of the changes are still largely unrecognized. A difficult, healthy transition is now well under way and will need to continue for some time to come. (1) As part of that transition, the U.S. government, and those who follow its work, should deeply reflect upon and reconsider the role that law and lawyers have played in framing the policy choices. I come at these issues as both a lawyer and former policymaker.

Before 9/11 our conceptual framework was mainly the framework of traditional American criminal justice. Usama Bin Ladin was indicted in the Southern District of New York. (2) Naturally, neither the Federal Bureau of Investigation (FBI) nor the U.S. Marshals service could apprehend him or his principal associates. Therefore, the U.S. government asked foreign governments to help and also secretly hired foreign friends to try to capture him, using deadly force only if necessary. There were brief exceptions to this approach in 1998, but the government had lapsed back into this default position by the middle of 1999. The story is recounted in the report of the 9/11 Commission. (3)

The 9/11 attack was at least the third major intercontinental operation that al Qaeda had carried out against the United States. (4) Al Qaeda's leaders had asserted for years that their organization and its allies were at war with the United States. (5) And after the 9/11 attack the U.S. government finally, completely agreed with them. The United States then began engaging in an armed conflict with al Qaeda, its affiliates, and its allies. That worldwide conflict continues today.

An enormous debate also began in this country and around the world about the appropriate way to conduct such a conflict. In this country, as in every other developed country, the debate has been dominated by lawyers arguing with other lawyers. Their debate is about what the law--U.S. law or international law--allows and does not allow.

I. HOW LAWYERS FOUND THEMSELVES AT THE CENTER OF THE POLICY DEBATE

The policy choices in the conduct of this armed conflict were novel. Put aside the rules governing combat operations in Afghanistan itself in 2001-2002. In other operations the administration had to set policies for lethal engagement of enemy members of al Qaeda, its affiliates, and its allies; for the transfer of captives to preferred jurisdictions; for the questioning of captives; and for their longer term detention. For many of these choices there was no established body of experience or precedents.

For the Central Intelligence Agency (CIA) and the Department of Defense (DOD) in particular, some of these activities involved developing entirely new organizational capacities that did not exist, or no longer existed, in their institutions. Any seasoned manager or student of organizations knows how challenging it can be for an organization to develop new capacities, with all the requirements to define tasks, guide implementation, build physical capacities, and recruit/train/ manage people to perform these new jobs.

Operating under broad legal parameters set shortly after the 9/11 attacks, a series of policy choices were made, especially in 2002 and 2003, about how to conduct the armed conflict. Especially in the case of the CIA, it appears from publicly available sources that, responding to some informal guidance from the White House, the Agency designed, developed, and implemented various techniques and capabilities with little substantive policy analysis or interagency consideration. (6)

Lawyers from other agencies and departments, as well as the White House, were apparently assembled to consider and approve the legality of the proposed methods as, or after, the critical policy choices were being or had already been made. The legal defense then became the public face of the policies. The debate became framed as a legal debate. Legal opinions became policy guides. Opinions to sustain the CIA program had an indirect effect on the guidelines developed for DOD activities as well, since DOD did not wish to develop positions inconsistent with those already in place.

Able bureaucratic players in the Bush administration were able to use legal opinions to provide formal policy cover for Agency operations and deal with internal dissent and unease ('the Attorney General has said it is legal'). Above all, using the legal defenses as the public face of the issue moved the terrain of debate to the President's legal powers in wartime strong ground indeed. Also interesting is that opponents of the policies found this battleground congenial too. Habits of thinking in legal terms were reinforced. Constitutional and civil liberties lawyers eagerly stepped forward, and they could do so without having to soil their hands by confronting the concrete policy necessities at hand. Thus the public debate was decisively framed--and deformed.

II. REFRAMING THE DEBATE: FROM "CAN" TO "SHOULD"

In other words, instead of asking: What can we do?, start by asking: What should we do? Just this difference, changing "can or cannot" to "should or should not" changes the framework of debate, changes the evidence and reasoning you use, and changes the role that lawyers should play in the policy process.

By "legal policy," I mean those policies for the enforcement of international, criminal, or civil law and the policies for the effective administration of justice.

Lawyers are not generally trained in legal policy. Even some of the finest lawyers cannot be considered experts in it. Confronted with a novel problem, the habit of thought developed in law school and practice is to spot the legal issue and determine an authoritative, or at least arguable, position on what the law requires. (7) It is important for lawyers, and those who use them, to know the strengths and limitations of these skills. Two examples:

First, moral reasoning. Moral reasoning, which most people think has something to do with "right and wrong," (8) is not taught in law school. The relationship of law to morality is an interesting question, wonderfully explored by thinkers as diverse as Edmond Cahn and James Q. Wilson. (9) But, for better or worse, moral reasoning is not generally taught in law school. Nor is it generally taught--by the way--in schools of public policy. "Ethics" is taught, but that is actually a different set of ideas, though the two subjects overlap. (10)

Second, policing and public order. Generally law schools do not teach about policing or how societies go about preserving public order. Of course you will find courses on criminal law and criminal procedure, but that is quite different. In fact, in our most elite universities, policing is vaguely regarded as left to vocational schools. To be even blunter, it's perceived as a blue-collar subject. There are rare exceptions. And there are rare policemen and policewomen, or court administrators or corrections officers, who can step up to engage in the wider issues of public policy that frame what they do. But I've seen firsthand--in places like Iraq and Afghanistan--just how difficult it has been for this country to find experts and help others in tackling the basic policy issues of policing and public order that are so evident in so much of the world.

So, as the U.S. government developed a new approach to combating Islamist terrorists around the world, many of the formative deliberations were defaulted to being conducted, at the subcabinet level and below, by lawyers--mainly constitutional lawyers. It was the hour of experts like John Yoo, a creative scholar, who has recently published an illustrative memoir of these experiences. (11)

And these lawyers tended to look for the legal answer. And so the problem tended to be framed less as a detailed analysis of what should be done, and more as a problem of what could be done.

And the lawyers naturally look to legal sources to find the answers. Then they construct whatever answers they can from the available legal sources and pronounce it as a legal opinion.

The worldwide conduct of armed conflict and other actions against al Qaeda, its affiliates, and its allies presents an exceptionally complex and uncertain set of rules. There are arguments over the scope and reach of international law and the meaning of the relevant international legal concepts even if they do apply. There are arguments over the boundaries between international law, military law, and ordinary domestic ("municipal" is the technical term) laws. And the arguments over these boundaries set off various theological disputes about the application and binding power of constitutional and international law, disputes that have political resonance in the United States and other countries.