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ARTICLE Folk International Law: 9/11 Lawyering and the Transformation of the Law of Armed Conflict to Human Rights Policy and Human Rights Law to War Governance

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ARTICLE Folk International Law: 9/11 Lawyering and the Transformation of the Law of Armed Conflict to Human Rights Policy and Human Rights Law to War Governance 2014 / Folk International Law 225 ARTICLE Folk International Law: 9/11 Lawyering and the Transformation of the Law of Armed Conflict to Human Rights Policy and Human Rights Law to War Governance __________________________ Naz K. Modirzadeh* Abstract This Article argues that the positions many U.S.-based lawyers in the disciplines of international humanitarian law and human rights law took in 2013 on issues of lethal force and framing of armed conflict vis-à-vis the Obama Administration would have been surprising and disappointing to those same professionals back in 2002 when they began their battle against the Bush Administration’s formulations of the “Global War on Terror.” In doing so, the Article demonstrates how, by 2013, many U.S.-based humanitarian and human rights lawyers—in the face of a perceived existential threat to their relevance from the Bush Administration’s general rejection of international law as a binding constraint in the “Global War on Terror”—had traded in strict fealty to international law for potential influence on executive decision-making. These lawyers and advocates would help to shape the Obama Administration’s articulation of its legal basis for the use of force against al Qaeda and others by making use of “folk international law,” a law-like discourse that relies on a confusing and soft admixture of IHL, jus ad bellum, and IHRL to frame operations that do not, * Senior Fellow, Harvard Law School-Brookings Project on Law and Security. B.A., University of California at Berkeley, 1999; J.D., Harvard Law School, 2002. The author would like to thank Dustin Lewis, Gabriella Blum, Marko Milanovic, William Alford, Jonathan Horowitz, Andrew March, Michael Schmitt, Janet Halley, the Harvard Law School International Law Workshop, 2011, The Columbia Law School Human Rights Institute Counterterrorism & Human Rights Project, and the Editors of the Harvard National Security Journal. In particular, the author would like to thank Jessica Burniske and Anand Sudhakar for outstanding research assistance. All views and errors are solely those of the author. Copyright © 2014 by the Presidents and Fellows of Harvard College and Naz K. Modirzadeh. 226 Harvard National Security Journal / Vol. 5 ultimately, seem bound by international law—at least not by any conception of international law recognizable to international lawyers, especially those outside of the U.S. In chronicling the collapse of multiple legal disciplines and fields of application into the “Law of 9/11,” the Article illustrates how that result came about not simply through manipulation by a government seeking to protect national security or justify its actions but also through a particular approach to legal argumentation as mapped through various tactical moves during the course of the legal battle over the war on terror. “We’re in a new kind of war, and we’ve made very clear that it is important that this new kind of war be fought on different battlefields.” – Condoleezza Rice, November 20021 “The United States agrees that it must conform its actions to all applicable law. As I have explained, as a matter of international law, the United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defense under international law.” – Harold Hongju Koh, March 20102 Introduction On March 25, 2010, State Department Legal Adviser Harold Koh, a prominent and well-respected international lawyer, human rights scholar, and former Dean of the Yale Law School, gave an address at the American Society of International Law Annual Meeting, laying out, for the first time, the Obama Administration’s perspective on the legality of the so-called 1 Condoleezza Rice on Fox News Sunday, FOX NEWS (Nov. 11, 2002), http:// www.foxnews.com/story/0,2933,69783,00.html, [http://perma.law.harvard.edu/ 04pjFndWstN]. 2 Harold Koh, Legal Advisor to the U.S. Dep’t of State, Speech at the American Society of International Law: The Obama Administration and International Law (Mar. 25, 2010), available at http://www.state.gov/s/l/releases/remarks/139119.htm, [http:// perma.law.harvard.edu/0WFyysLMMno] [hereinafter ASIL Speech]. 2014 / Folk International Law 227 “war on terror.” It was a heavy moment. By that time, news had come out that President Obama and his team had approved a massive increase in the use of CIA-led weaponized unmanned aerial vehicles (drones) outside the conflict in Afghanistan,3 with numerous strikes in Pakistan and elsewhere. Many in the fields of international humanitarian law (“IHL”) and international human rights law (“IHRL”) had high expectations for both the Obama Administration and Harold Koh. Indeed, many hoped that Dean Koh would restate the commitment of the U.S. to international law, distance the Obama Administration from these secretive attacks, and mark the firm and final end to the Bush-era “global war on terrorism.” That did not happen. Instead, Koh articulated the “Law of 9/11,”4 largely reiterated the previous Administration’s understanding of an ongoing armed conflict between the United States and al Qaeda and justified the use of lethal force across multiple “battlefields” spanning the globe. Many in IHL and IHRL, by that point, had struggled for years with the U.S. government against the claim that international law was “quaint,” with the Bush Administration seeming to reject the idea that international law—as law—had any place in this new war. International law certainly played a role in Koh’s speech that March day, but in ways that those who had long awaited that moment could not have expected. It was, for many, a depressing day in what had been a depressing decade. Three years later, as the end of the Obama Administration’s first term neared, the executive’s publicly asserted legal basis for key facets of the prosecution of the “war on terrorism”—not least, the targeted killing of Americans and foreigners “associated” with al Qaeda anywhere at any time—remained strikingly opaque and strikingly innovative in comparison to well-established international humanitarian law, jus ad bellum, and international human rights law. But that is the end of the story. This Article starts with the beginning. 3 Jane Mayer, The Predator War, NEW YORKER (Oct. 26, 2009), http:// www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer, [http:// perma.law.harvard.edu/0eeTWj8iRtY]. 4 Koh appears to have coined this term, referring to “what I call the Law of 9/11: detentions, use of force, and prosecution.” ASIL Speech, supra note 2. 228 Harvard National Security Journal / Vol. 5 This Article seeks to track the debates within the two disciplines central to the international legal regulation of the U.S. use of force that led to this moment. Debates within and across the fields of IHL and IHRL, and the disintegration of the boundaries between these two fields of law, seemed to have played, if unwittingly, into arguments that Koh made that day and that the Obama Administration continues to promote as of this writing. The arc of this story demonstrates a real-world convergence between international human rights law, as interpreted and applied largely through U.S. constitutional law, and international humanitarian law. This convergence conflates and confounds long-standing principles and rules of both branches of public international law.5 Convergence of IHL and IHRL is often presented as a victory for humanitarianism—a move towards a single body of international law that protects individuals in all circumstances, in all places, in an almost borderless conception of the world. In a previous article,6 I raised a number of criticisms of the extraterritorial application of human rights law in armed conflict, and I questioned the theoretical and practical grounds for full extraterritorial application of human rights on top of and within IHL. One of the main doctrinal and operational criticisms of convergence is that it dilutes the clarity of the law of armed conflict. A far less common critique is that it also dilutes the clarity and moral resonance of human rights law and human rights advocacy by introducing IHL’s often brutal balance between military necessity and humanity into situations that would otherwise be governed by more restrictive approaches, especially regarding the right not to be arbitrarily deprived of life. This Article develops that criticism by pointing to a practical cost of convergence: the dilution and weakening of international law-based arguments against the U.S. government’s legal construction of the “war on terror.” The thickly legal construction of the Obama Administration’s global war on al Qaeda, the Taliban, and associated forces was enabled in part by U.S.-based human rights and IHL lawyers who, over the past decade and in the face of a perceived existential threat to their relevance, traded in certain 5 The period following 9/11 led to an unprecedented overlap between the domains of constitutional lawyers, on the one hand, and of human rights lawyers and advocates, on the other. 6 Naz K. Modirzadeh, The Dark Sides of Convergence: A Pro-Civilian Critique of the Extraterritorial Application of Human Rights Law in Armed Conflict, 86 INT’L L. STUD. SER. U.S. NAVAL WAR COL. 349 (2010). 2014 / Folk International Law 229 principles for (potential) influence on executive decision-making. These lawyers and advocates helped to fuel the Obama Administration’s articulation of its legal basis for the use of force against al Qaeda and others by making use of “folk international law,” a law-like discourse that relies on a confusing and soft admixture of IHL, jus ad bellum, and IHRL to frame operations that do not, ultimately, seem to be bound by international law— or at least by any conception of international law recognizable to international lawyers, especially non-Americans.
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