Thursday, March 8, 2012

Accountability, Mischaracterization, and American Use of Force

It’s been a busy week for international law—particularly the international law of armed conflict and, more particularly, the interaction of that body of law with municipal U.S. law. Both the Attorney General’s speech at Northwestern University Law School and Secretary of Defense Leon Panetta’s remarks before the Senate Armed Services Committee have sparked a bit of outrage, as well as a fair measure of hyperbole and mischaracterization.

Interestingly enough, the visceral reaction to Holder’s speech has come from the left—both Professor Jonathan Turley and GlennGreenwald piled on—while the negative reaction to Panetta’s remarks has come from the right—unsurprising given they emerged from a contentious exchange withSenator Jeff Sessions. And, while the AG’s speech was a defense of the Obama administration’s rather robust approach to national security—in particular, the claimed authority to lethally target individuals, including U.S. citizens, who are either imminent threats or civilians directly participating in hostilities against the United States—Sessions’ assault sounded in themes of the Obama administration prostrating itself before international institution and that horror of horrors: international law.

Two things other than temporal proximity unite the left and the right in these two episodes: gross mischaracterizations and an underlying concern over accountability.

Take Glenn Greenwald’s article on Salon following Holder’s speech. While Holder articulated two fairly uncontroversial—and, by the way, correct—frameworks for justifying use of force (self-defense and the existence of an armed conflict), Greenwald ignored these and located his criticism in the legal frame of law enforcement. Greenwald used terms like accuser, judge, jury, and executioner and, critically, implied that the drone strike targeting Anwar al-Aulaqi in September 2011 was an extrajudicial execution. What’s more, whereas Holder properly discussed due process, Greenwald honed in on judicial process.

Similarly, Senator Sessions attempted to characterize the Obama administration’s inaction in Syria as evidence that the Obama administration believes international law trump U.S. law. Sessions wielded the intervention in Libya as evidence thereof: the Congress didn’t authorize that intervention but the UN Security Council did therefore Obama believes in government via the UN. Enter black helicopters.

Looking past these mischaracterizations, it is clear that both Greenwald and Sessions—and many others—are really concerned with accountability. At bottom, I believe what animates Greenwald’s arguing past the AG is not a fear that the Executive claims an untrammeled authority to use force against U.S. citizens—indeed, the President does not and could not claim such authority—but instead a fear that technology and circumstance have conspired to vest the President with the ability to use precise amounts of force abroad without political or institutional accountability.

In the same vein, I believe Senator Sessions tips his hand with his umbrage not of supposed preeminence of international law but when he highlights the War Powers Resolution. What goads Sessions is that the Obama administration avoided the War Powers Resolution—an act that every President, regardless of party, has regarded as unconstitutional—by: (1) withdrawing the majority of U.S. combat air assets within the reporting window; and (2) from that point on, relying on drones for combat operations which, because they do not place servicemen and women in harm’s way, avoid the WPR trigger of “hostilities” embraced by 30 years of Presidents.

It is, I believe, the Presidency’s apparent lack of accountability when making use of force decisions that bothers two men as diverse as Greenwald and Sessions, and unites this week’s criticism from both the left and right. Accountability in the resort to force is integral to ensure the use of force is lawful, to protect the citizenry, and to ensure that force used in our name is reasonable and warranted. This is a worthy discussion to have. We would be better off if both Sessions and Greenwald stated it plainly.

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