Must It Always Be Wartime?

Societies often go to great lengths to separate war from peace. Wars are declared, sometimes with elaborate ritual. Soldiers wear uniforms and are part of specialized hierarchical organizations. Battlefields are often delineated. Maintaining this distinction is important because what is permissible in wartime is often prohibited in peacetime. Preventing the rules of war from infecting views of moral conduct in times of peace is essential for preserving civilization.

Yet particularly since September 11, 2001, the line between war and peace has blurred. The “war” on terrorism that President George W. Bush chose to declare was very different from, say, the confrontations between large national forces of World War II or even traditional counterinsurgency battles on a nation’s own territory. Al-Qaeda is a shadowy organization, many of its offshoots and successors even more so. The global and decentralized threat posed by the self-declared Islamic State presents a further complication.

The decision to treat the September 11 attack as an act of war rather than a horrible crime was a policy choice (one opposed in these pages by Philip Wilcox, a former American diplomat^*). We could easily imagine a President Al Gore making a different choice. But once made, the decision to pursue “war” against al-Qaeda and its associated forces had major implications.

In war, opposing combatants can be targeted and killed by virtue of their status as combatants, without regard to their conduct at that moment. Captured combatants in wars between countries can be detained without charge or trial until the end of the armed conflict. In peacetime, by contrast, law enforcement rules allow the use of lethal force only as a last resort to stop an imminent lethal threat, and detentions generally can be sustained only after charges have been filed and a trial has taken place.

In view of the stakes, the debate about the proper way to characterize efforts to counter terrorism has understandably been intense. The stakes are only higher under President Donald J. Trump, given his apparent willingness to push the limits of legality in fighting terrorism. But as is often the case when alternative conceptions compete for recognition, resolving this debate has been difficult.

Rosa Brooks suggests, in her lively, informed, and insightful new book, that we consider a different approach. Brooks is a Georgetown law professor and former human rights investigator brought up by “left-wing antiwar activists.” But she also served as counselor to Michèle Flournoy, for two years the US undersecretary of defense for policy under Obama. From that position, Brooks had an insider’s perspective on many of the most difficult policy issues facing the Pentagon. She also ended up meeting her husband, an Army Special Forces officer with experience in Afghanistan and Iraq, who she says helped her understand how the issues she was dealing with played out in reality.

Brooks discusses the implications of today’s increasingly blurred line between war and peace and concludes that we may need to transcend these old distinctions. After the atrocities of World War II, governments of leading nations drafted the series of treaties that are the basis of international human rights law, the detailed rules limiting what governments can do to people. In time of war, these rules are supplemented by international humanitarian law (also known as the laws of war or the laws of armed conflict), much of which is contained in the 1949 Geneva Conventions and their Protocols.

Each set of laws is quite detailed, with the Geneva Conventions alone amounting to several hundred pages. Yet the law distinguishing peace from war—determining when humanitarian law’s more permissive rules for killing and detention kick in—is surprisingly sparse, leaving much room for dispute, especially when one of the ostensible parties to a conflict is a non-state armed group or a terrorist organization.

“War” occurs when a sufficient level of hostilities takes place between sufficiently organized military forces. Among the factors considered in the various protocols, commentaries, and tribunal decisions that address the issue are the number, duration, and intensity of particular confrontations; the use of military weapons; the number of participants in the fighting; and the resulting casualties and displacement of civilians.

A confrontation between two national armies is easy to classify as war. Sporadic acts of violence by criminal syndicates or even drug cartels are widely agreed not to be war. But how does one classify the periodic attacks by such groups as al-Qaeda or ISIS beyond their territorial bases, combined with the occasional violent response by Western military forces? That the United States deploys military forces is not enough, by itself, to qualify the result as an armed conflict. If that were sufficient, then a government could justify the summary killing of “combatants” simply by using its armed forces. Yet a state can enter into “war” with a non-state armed group on grounds of the magnitude and sustained nature of its military deployment.

If the fight against terrorist groups is hard enough to classify, consider new and emerging security threats—such as cyberattacks on critical infrastructure or the use of bioengineered viruses—that do not involve the kinetic or explosive weapons of traditional war. Does it make sense to speak of “combatants” when the attacker is not an armed soldier but a hacker at a computer terminal or a scientist in a biology laboratory? And even if they are combatants, is it a proper response to such attacks to authorize shooting or bombing them from afar, as is permitted in a traditional armed conflict?

International humanitarian law is clearly in need of elaboration in order to address these newer forms of conflict, but it should at least provide the starting point. For example, biological warfare unleashing deadly pathogens or cyber warfare shutting down electrical facilities are disturbing in large part because they could inflict widespread indiscriminate and disproportionate civilian casualties—concepts that are central to humanitarian law.

Similarly, a firmer grounding in international human rights and humanitarian law would have helped to avoid the kinds of perversions of that law that were orchestrated by the Bush administration, whose attorney general, Alberto Gonzales, dismissed the Geneva Conventions as “quaint” and “obsolete” and whose Justice Department cited a “new kind of war” to authorize “enhanced interrogation techniques” such as waterboarding, a form of torture. In fact, despite Trump’s musings about reviving it, international law prohibits torture—indeed, makes it a crime—in times of both peace and war.

Greater attention to human rights principles might also have led Trump to temper his executive order temporarily banning visitors to the United States from seven mainly Muslim countries. Ostensibly designed to fight terrorism, it made no effort to limit its scope to people who posed any identifiable threat, at enormous personal cost, if upheld by the courts, to the 60,000 people whose visas were suddenly not recognized.

Complicating matters further is the expanding role of the US military. Today, counterinsurgency strategy is broadly understood to involve far more than fighting an opposing military. It also has come to mean protecting the civilian population and building government institutions that serve rather than prey upon people, including a legal system that protects rights. Trump is now questioning the utility of such “nation-building,” but in the meantime it has led the Pentagon to sponsor a variety of programs that have little to do with confronting enemy troops.

As Brooks describes it, US soldiers now undertake public health programs, agricultural reform efforts, small business development projects, and training in the rule of law. This expanding mandate, as Brooks shows, has enabled the Pentagon to dramatically increase its budget—few in Congress deny requests for more spending on national defense—even as austerity eviscerates the budgets of the agencies that traditionally carry out these tasks, such as the State Department and USAID.

The radically different budgets of the Pentagon and its civilian counterparts only reinforce the tendency to look to the military to address nonmilitary problems—to treat it as a “Super Walmart” ready to respond to the nation’s every foreign policy need. “It’s a vicious circle,” Brooks explains, “as civilian capacity has declined, the military has stepped into the breach.”

Yet there is a cost to a self-reinforcing cycle of militarizing US foreign policy. Pursuing economic development, undertaking agrarian reform, expanding the rule of law—these are tasks requiring considerable expertise, including linguistic skills and cultural sensitivity not usually associated with the average military recruit, still chosen foremost for strength and agility even in a world in which traditional military tasks diminish in importance.

Moreover, humanitarian and development workers have typically enjoyed a degree of protection in the field because of their neutrality—their dedication to offering services on the basis of need rather than political preference. The militarization of these efforts has contributed to the “shrinking of humanitarian space” in which aid workers give assistance; they are increasingly endangered because they are perceived as military assets. The US may not be well served by Congress’s reflexive preference for military solutions to civilian problems.

Brooks discusses these emerging legal and practical problems with the clarity of an outsider given a seat at the insider’s table. But her book focuses on a more current problem: America’s use of aerial drones to kill terrorist suspects. In places where the United States is obviously at war, such as the fight against the Taliban in Afghanistan or ISIS in Syria and Iraq, the use of drones is relatively uncontroversial. Indeed, because of their exceptional accuracy, their small blast radius, and their ability to linger over an area to verify targets and choose a moment to attack when the fewest civilians are nearby, drones can help avoid civilian casualties—a central requirement of international humanitarian law.

But problems arise when drones are used in places where the US has not claimed to be at war, such as Yemen or Somalia. If law-enforcement standards are applied in such places, US security officials would still be permitted to use lethal force, but only in exceptional circumstances—when it is the only feasible way to avoid an imminent threat to life. In a 2013 speech at the National Defense University, President Obama accepted these law-enforcement standards for such situations, stating that the United States would use lethal force only against “terrorists who pose a continuing and imminent threat to the American people,” and even then, only if capture is not possible and there is “near-certainty that no civilians will be killed or injured.”

In fact, as far as can be determined given the secrecy shrouding US drone attacks, Obama’s speech seems to have made little difference in the way attacks are actually carried out, and Trump in any event, in one of his first executive orders, has called for a reexamination of these rules. Part of the problem seems to stem from the US government’s elastic definition of a continuing “imminent” threat; its definition allows such a threat to be established regardless of how soon an alleged planned attack might take place. This sleight of hand seems to leave the United States operating more under war rules, in which a person’s status as an enemy combatant provides sufficient grounds to attack—was distinguished from the doctrine that the person must pose an imminent threat. It is as if the law-enforcement rules articulated by Obama have reverted back to war rules.

To make matters worse, even though it is unclear how the US government even makes such determinations, it sometimes seems to treat mere association with a suspect as evidence of membership in a terrorist group. That expands the range of targetable people still further—possibly beyond the definition of an enemy combatant even if war rules applied.

This matters not only for the victims of unlawful US counterterrorism efforts but also for many others. America’s monopoly on weaponized drones is already breaking down. Other governments are developing or purchasing this technology as well. Even ISIS reportedly has attacked with simple drones.

Moreover, if targeted killing is permitted under an expansive rationale for the “war against terrorism,” there may be no need for drones at all. Assassinations, poisoning, car bombs, “accidents”—there are plenty of ways to kill an “enemy combatant” once that characterization is accepted. And in an increasingly mobile world, even the most isolated governments will have opportunities to detain US citizens if broad, war-based standards for detention without charge gain wide acceptance. As Brooks notes, when the US government embraces controversial legal theories, it prepares “the way for other states to behave in similar ways.” She adds: “Let’s not kid ourselves: the legal arguments that the United States is now making will come back and bite us in the future.”

Unintended civilian casualties are not the issue. Regardless of the rules applied, the US government has a strong incentive to avoid such casualties, not only for humanitarian reasons but also because of the huge propaganda advantages they provide to terrorists. Rather, the central issue is who can be deliberately targeted. Who is the intended victim, and on what grounds?

A similar problem arises with respect to detention. In an ordinary armed conflict between countries, as noted, the laws of war permit detaining an enemy combatant until the end of the conflict. The rationale is not punitive—criminal prosecution rarely occurs and is not needed—but to prevent the combatant from returning to the battlefield and again taking up arms against the detaining power. But in traditional armed conflicts, the uniformed combatants, the battlefield, and the end of the conflict are all relatively easy to determine. As a result, there has been little requirement for judicial oversight, because most of the central facts justifying detention are obvious.

This is not so in the fight against terrorism, in which members of terrorist groups try to hide, their organizations operate under the radar, and there is no one with whom to sign an armistice even if one were desired. It is with these uncertainties in mind that the US Supreme Court granted Guantánamo detainees at least the nominal right to judicial oversight of the lawfulness of their detention. In fact, however, the federal judges involved have been extraordinarily deferential to the US military’s assessments of whether an individual is a member of an “enemy” group even when evidence is scant.

For much of the past fifteen years, the US officials favoring expansive powers to fight terrorism have been at loggerheads with human rights organizations that have been trying to limit those powers. In Brooks’s view, this debate is going nowhere because it is so difficult to demonstrate conclusively whether standards for war or for law enforcement should apply. As with the famous drawing, reproduced by Wittgenstein, that can be a rabbit or a duck depending on how you look at it, Brooks fears there is no right answer to this debate—or at least no answer that will convince someone already wedded to the opposing point of view. “Many U.S. counterterrorism practices simply defy straightforward legal categorization,” she concludes. The issue, she says, is not one of “lawbreaking, but of law’s brokenness.”

As Brooks notes, “there’s nothing natural or inevitable about any of our familiar categories or distinctions.” They reflect the concepts of a particular era. Rather than continue the effort to divide the world into two categories, she suggests “recognizing that war and peace are not binary opposites, but lie along a continuum.” The task then, she concludes, is to ask not what the law requires, since the law’s answer depends on the difficult-to-resolve dispute over the definition of war or peace. What matters instead is what is right, based on our values. Lawyers may feel less at home with this debate, she observes, but many others will feel that they can contribute to solutions.

For example, why not require some degree of judicial review before a suspect is put on the “kill list” for a drone attack? The traditional answer is that you can’t possibly have judges second-guessing split-second, life-and-death judgments on the battlefield. But that argument tends to assume that scenes of conflict resemble the Normandy invasion or even an urban battlefield where prior judicial review would indeed be impractical.

By contrast, most drone attacks today occur only after lengthy surveillance and extensive discussion among various elements of the executive branch. Rather than the anonymity of the traditional battlefield, today’s targets are often known in intimate detail. In such cases, there is plenty of time for an independent officer such as a judge to assess whether standards for using lethal force have been met. “The logic underlying the law of armed conflict’s permissive rules on status-based killing doesn’t apply here,” Brooks observes. Some judgments may still be made at the last second—such as determining when the target is most isolated in order to avoid unintended civilian casualties—but placing a target on a kill list is compatible with greater scrutiny, including judicial oversight, even if the standards of war are accepted. As Brooks points out, such a policy would help us “develop better mechanisms to prevent arbitrariness, mistake, and abuse in targeted killings.”

Similarly, even if judicial review is typically impractical and unnecessary for decisions about detention in the midst of an ordinary armed conflict, why should it not be extended to detainees like those in Guantánamo? Many of them find themselves accused of terrorist associations on flimsy grounds (using “intelligence” provided by dubious informants or even following torture), and their lengthy detention in the “forever war” against terrorism provides plenty of opportunity and need for an independent assessment.

In my view, Brooks has made a fresh and useful argument, but she carries it too far. I would not give up on the basic distinction between war and law enforcement, because to a very significant extent, at least under Obama, that argument was won in favor of the requirements of law enforcement, which are more protective of rights. Obama abandoned Bush’s “global war on terrorism” rhetoric. In his speech at the National Defense University, Obama endorsed the application of law-enforcement standards to drone attacks that do not take place in obvious war zones, even if his requirement of “imminence” was stretched beyond common understanding and the evidence used to select a target is often weak. As a practical matter, Obama also rejected the standards of war for detaining new terrorist suspects. During his eight years in office, all such suspects were brought into the criminal justice system for prosecution; no one new was sent to Guantánamo and its limitless detention, even if Obama continued to rely on war standards to deal with the Bush detainees at Guantánamo. This is important ground won that I would not cede, especially as we enter the uncertainties of the Trump administration.

Indeed, in the current political environment in which populist politicians are ascendant and centrist leaders often seem to have lost their voice, I would be reluctant to embark on any new attempt to set global standards on something as sensitive as counterterrorism policy. The opponents of stronger limits on governmental powers to kill or detain are now likely to come from both the White House and the Kremlin. Even Theresa May, the new British prime minister, vowed at the most recent Conservative Party conference “never again” to “let those activist, left-wing human rights lawyers harangue and harass the bravest of the brave—the men and women of [Britain’s] armed forces.” In such circumstances, it is unlikely that new standards would be more protective than the current ones.

But it may still be worth using Brooks’s argument to secure whatever additional safeguards we can from those who would continue to rely on war standards to counter terrorism. I would rephrase her argument not as a substitute for the “category problem” she identifies of distinguishing between war and peace but as a supplement to it. For example, one might argue: even if you think US drone attacks in Yemen should be governed by war rules, and granted the difficulty of judicial oversight in the midst of classic combat, surely we should accept some judicial oversight for the more deliberative actions taking place on the “battlefield.”

Or even if you think counterterrorism detentions should be governed by war rules, with very limited judicial scrutiny, surely we should accept more oversight before detention in a “conflict” in which it is difficult to say who the combatants are, or where the “war” takes place, and when it ends. Indeed, we should strongly prefer criminal prosecution to mere detention. These arguments should not be understood to substitute for rules of law enforcement, but to improve upon an unfettered application of war standards for those who still refuse to accept any law-enforcement approach to addressing terrorism.

As Brooks shows us, the battle of competing standards may well have left insufficient protection of the fundamental rights not to be killed or summarily detained. But the nuanced set of questions she poses should be used as much as possible to supplement existing standards, not to abandon them. Otherwise, we risk undermining the important if imperfect protections we already have. And with countries as diverse as Russia, Turkey, Iran, Israel, Saudi Arabia, and the United Arab Emirates today all involved in active efforts against armed or terrorist groups outside their territories, any weakening of the rules would give those countries greater latitude too—a frightening thought.