Federalist Society Panel on National Security and International Law

Last Friday, I was pleased to take part in a panel at the Federalist Society convention on national security and international law, and whether they are in conflict (or at least serious tension).  It featured an excellent lineup with many different viewpoints: Sarah Cleveland and Rosa Brooks (law professors who had served during the Obama 1 administration in senior posts in the State Department and Defense Department, respectively), Julian Ku (most recently, co-author with John Yoo on the very interesting book Taming Globalization), Gregory McNeal (Pepperdine Law professor who knows, I believe, more than any person who has not served in government in the last couple of years about the decision-making process of targeting in targeted killing; his article on Afghanistan targeting is essential reading on actual US practices), and me.  John McGinnis (Northwestern, author of this particularly interesting article on democracy and human rights with VC’s very own Ilya Somin) served as moderator.

The panel had possibly fewer fireworks and disagreements that might have been anticipated, given the range of views on the panel, but that was largely on account of the framing of the question.  When it comes to national security, at least as armed conflict, international law is enabling for the United States, and indeed serves as the core framework structuring how the US does it.  It does it according to a long, long, long tradition of the customary and treaty law of war, as the US has understood, interpreted, and practiced it.  The fundamental law of targeting, for example – target combatants, don’t target noncombatants – is not just an imposed rule on military practice, it is military practice.  So although there are areas of international law which raise serious questions about democratic sovereignty and  such in relation to national security concerns, international law in the form of the fundamental laws of war is baked into the American government’s DNA.  So any debates have to be much more nuanced than yes or  no.

As a consequence, much of the argument came down to how capacious international law is in accepting varying interpretations and state practices on crucial areas of national security.  Many of the areas of currently sharp debate – over targeted killing programs, for example, or striking across sovereign borders – are actually surface arguments over very deep differences in what one takes as possible ways to interpret international law, in some strictly formalist but frankly not very realistic sense, or something that takes politics, diplomacy, real world concerns into account in how law is interpreted and evolves.  If you see it in the way the US government traditionally has in these areas – as capable of responding to security threats and new security threats in an evolving, pragmatic, and flexible way – then you think international law is not especially a threat to US national security, at least as regards the conduct of war.  To the extent one sees international law as an activity whose authority and legitimate interpretation is vested in international bodies and officials, such as special rapporteurs, or professors and academics, then one is going to see much more tension.  As John Bolton noted several years ago (article is not online), much of the tension over international law is less what it is than who decides – it purports to shift the decision-maker away from democratic processes to something or someone else.

Rosa Brooks, a Georgetown law professor and former Defense Department official who now has a particularly interesting blog at Foreign Policy, posed a particularly interesting, broad challenge: if international law is traditionally the friend of “weak” states (which is how the US historically saw it in its early days), then the US should have a growing interest in international law as a shared enterprise because (face it) the US is growing weaker.  It will be a multipolar world, and in that world, the United States will not have the influence or power it had.  In that case, international law is our friend, a way of leveraging our declining influence.

That somewhat mischievously sweeping claim got some attention from the audience – and from me.  As it happens, my book on US-UN relations, Living with the UN: American Responsibilities and International Order, has as one of its main themes the way in which a loose and undemanding US hegemony provides a parallel system to the system of formal international law and organizations, in security but also other matters.  One of the book’s main points is that decline of the United States as a hegemon, were it to occur, would promote much greater insecurity in the world; a multipolar world, as David Rieff pointed out years ago, is more competitive, not more cooperative.  Moreover, the book also concludes, those who see the formal system of international law and organizations as the locus of universal values such as human rights might consider that, in fact, much of that universalism exists under the sheltering sky of American hegemony.  If that hegemony fades, a lot of the universal values and the ability to realize them disappears, too.

(I was also delighted to see several fellow Conspirators at the convention, Orin and – first time meeting, amazingly! – David Bernstein.  Let me also belatedly welcome our new Conspirators, Eugene and Nick.  I am slowly reentering the blogging world, and I have missed being here at VC.)

Comments are closed.