From 9/11 to 1/6
The War on Terror Supercharged the Far Right
Anyone hoping that this month’s 20th anniversary of the 9/11 attacks might bring some closure after two decades of war is going to be disappointed. By withdrawing U.S. troops from Afghanistan, the administration of President Joe Biden sought to create a sense that the United States’ string of exhausting and counterproductive interventions in the Middle East and South Asia was coming to an end. But the truth is more sobering. For all its commitments to end “forever wars,” the administration has given no sign that it is preparing to pivot away from the use of military force to manage perceived terrorist threats. Its ongoing counterterrorism policy review appears to be focused more on refining the bureaucratic architecture around drone strikes and other forms of what the military refers to as “direct action” than on a hard look at the costs and benefits of continuing to place military force at the center of U.S. counterterrorism policy.
Part of the reason may be that there is little meaningful pressure on the administration to revisit the scope of U.S. military action against jihadi groups around the world in what has become known as the “war on terror.” Executive branch lawyers have long read the broadly worded Authorization for Use of Military Force (AUMF) that President George W. Bush signed into law a week after the 9/11 attacks as allowing them to decide—often secretly—where and against whom the United States is fighting this war. Congress and the courts have largely acquiesced. Because military action against jihadi groups is often conducted by drones or through light-footprint operations in remote locations, it rarely attracts public attention. The exception is when something goes terribly and publicly wrong, as happened last month during a drone strike in Kabul that killed an Afghan aid worker and nine of his family members, including seven children, and when U.S. soldiers died during a 2017 operation that went wrong in Niger—a place few Americans even realized was a front in the war on terror. But even in those cases, the headlines rarely last; within days, the story usually fades away.
In his new book, Humane: How the United States Abandoned Peace and Reinvented War, the Yale Law School professor Samuel Moyn acknowledges this pattern but also sees another factor that helps explain the war on terror’s persistence. The problem, according to his provocative argument, is not the war’s brutality but its relative humanity. Moyn does not at all advocate a return to brutal methods or so-called total war, but he does suggest that in vilifying torture, reducing casualty counts, and otherwise focusing on how the United States conducts hostilities, lawyers and advocates have stunted public criticism and diverted energy from the peace movements that might otherwise bring it to an end.
Moyn’s craft, erudition, and insight make for a book that succeeds on many, but not all, levels. He does not quite make a persuasive case that humanitarian efforts were instrumental in girding domestic support for the war effort. Nor does the book fully explain what lawyers and advocates who sought to curb some of the war on terror’s ugliest features might have actually done to bring the war to an earlier end. Still, one can disagree with aspects of Humane and nevertheless appreciate the way it challenges acquiescence to the status quo. Beyond being a meditation on the meaning of war, it is a history of the tension between pacifism and humanitarianism. In a culture that has come to valorize the latter, Moyn gives the former its due and pushes readers to think about how law can aid the cause of peace. Reining in the executive branch’s unilateral war powers and requiring public deliberation over where and against whom the United States is waging war would be a good place to start.
If the book has a single protagonist, it is Leo Tolstoy, who features prominently in its lengthy exploration of nineteenth-century peace movements and whom Moyn admires both for his ferocious commitment to the pacifism and for advancing the idea that humanizing war may well entrench it.
Moyn sees precisely this dynamic at work in the war on terror, especially the years that immediately followed the 9/11 attacks. Humane’s account of this period is in many ways the emotional core of the book. There is some irony in this line of argument, in that Bush’s response to the attacks is remembered more for its brutality than for respecting humanitarian protections: the era’s totemic images remain those of shackled detainees in orange jumpsuits at the makeshift U.S. detention facility in Guantánamo Bay, Cuba, and of prisoners suffering vicious torture at the hands of U.S. service members at the Abu Ghraib prison in Iraq. Nevertheless, Moyn argues, the administration’s abuses need to be viewed alongside the reaction they provoked. Scholars, lawyers, and advocates rallied in protest. They flooded the courts with filings, took their cases to international bodies, and worked passionately to close legal loopholes to make sure such things never happened again.
The problem is not war’s brutality but its relative humanity.
In so doing, Moyn intimates, they may have missed the forest for the trees. Yes, they secured a combination of U.S. Supreme Court decisions, executive orders, and new statutes that reined in torture. But they did little or nothing to address the underlying conflicts in which the torture took place. Why didn’t the same lawyers who shook with fury in the face of custodial abuse harness the same energy to oppose the wars that created a pretext for it?
To illustrate this tendency, Moyn profiles three lawyers who played prominent roles in shaping the contours of the war on terror. One is Jack Goldsmith, a legal scholar who as head of the U.S. Justice Department’s powerful Office of Legal Counsel (OLC) in 2003–4 withdrew the infamous opinions effectively authorizing torture that had been written by his colleague John Yoo. Another is the late Michael Ratner, a longtime antiwar activist and celebrated civil liberties lawyer who in 2004 won a landmark Supreme Court case securing the right for Guantánamo detainees to challenge their detention under the federal habeas corpus statute. The last is Harold Koh, a political progressive and former Yale Law School dean who became the top lawyer at the U.S. State Department during the administration of President Barack Obama. (I worked for Koh at the time.)
Moyn perceives an element of tragedy in their work. Although he applauds Goldsmith and Ratner for their efforts on behalf of the rule of law, he strongly intimates that their energies were wrongly focused. “If there had been a chance to put limits on the war itself,” he writes, “after Goldsmith’s years in power and Ratner’s years of filing petitions, it had been missed.” He criticizes Koh yet more sharply for explaining and defending the international legal framework for Obama’s war on terror.
Moyn’s book has been justly praised for drawing attention to the perils of allowing the perception of humanity to create a comfort zone around military action. As the Pentagon’s August drone strike in Kabul illustrated, once the United States crosses the war threshold, it creates vast potential for bad judgment and mistakes with horrific consequences. In focusing on how U.S. foreign policy became so war dependent, and challenging readers not to be satisfied with merely blunting its roughest edges, the book makes an essential contribution. It stumbles, however, in its efforts to draw lessons from the personal stories of the prominent lawyers it features.
For one thing, Humane’s speculation that their work meaningfully helped shore up domestic support for the war is less than fully convincing. Although procuring rights for detainees and withdrawing problematic legal opinions almost certainly made working on the conflict more comfortable for many executive branch officials, this does not mean that the same cadre of officials (to which I belonged) could otherwise have pushed back hard enough to shorten the war’s longevity, particularly amid a maelstrom of politicized fear-mongering and the constant thrum of threat reporting.
As for the broader public, its tolerance for the war seems to owe mostly to zero-risk thinking, whipped-up Islamophobia, and the U.S. military’s pivot toward drones and light-footprint operations that minimized U.S. casualties. Yes, the U.S. government (or at least the Obama administration) said that reducing civilian casualties would help make the war more sustainable at home and abroad, but Moyn underplays the extent to which its focus was on the latter. Protecting civilians was important to maintaining host-country support for U.S. military operations in places such as Yemen, where leaders faced pressure from outraged civic leaders complaining that their communities lived under the constant whirr of drone surveillance and the fear of becoming collateral damage.
For another thing, the book offers little if any basis for its suggestion that Ratner, Goldsmith, or others of their ilk could have applied their talents more usefully during the early years of the war. Indeed, it is not entirely clear what instruments of law Moyn believes they might have deployed. The key legal fact with respect to both conflicts is that Congress authorized them in two sweeping statutes, putting both the Afghanistan and Iraq interventions on the firmest possible domestic legal footing and making them close to invulnerable to legal attack. Although it is not out of bounds to ask whether prominent lawyers could have done more to stop the war, it does not seem entirely fair to imply that the answer might be yes without offering viable suggestions for what that would have entailed.
Finally, even if one accepts Moyn’s premise that the fig leaf of humanitarian safeguards combined with the legitimizing gloss afforded by the U.S. government’s legal positions made the war more palatable to the American people, his discussion of the individual players would have benefited from greater consideration of the larger forces that were in some measure responsible for driving the outcomes he deplores. A deeper look at the realities of executive branch lawyering could, for example, have shed light on why even government lawyers skeptical of U.S. legal positions on the use of force are ill placed to be a reliable brake on the expansion of military action.
Although executive branch lawyers can and do say “no” to policymakers’ questions about whether and how the United States can use force, it is not an easy message to deliver, and it does not always stick. In many executive branch agencies, officials expect lawyers to tell them whether policy positions are “legally available” rather than whether they comport with the “best understanding” of the law—a higher standard. If a legal authority is broadly worded, such as the 2001 AUMF, or has been stretched over time, such as the UN Charter’s use of force provisions, both lawyers and policymakers tend to see room for maneuver. (This culture of flexible interpretation long predates the war on terror.) The fact that a U.S. position might buck the weight of scholarly or even global opinion is not always enough to deem it legally unavailable. Policymakers are sometimes willing to absorb the reputational hit in order to maintain operational flexibility. Because courts bend over backward to leave decisions in this area to the political branches, and Congress tends to shirk accountability and defer to the executive branch, there are few if any nonpolitical checks on this tendency.
The American people should be able to debate and shape the wars that are being fought in their name.
Even so, as the Obama administration assumed the reins of the war on terror and began to formalize its legal positions—prompted in part by the march of Guantánamo habeas litigation—its lawyers had fierce debates. Particularly at the beginning of the Obama administration, lawyers from different agencies argued about where the United States was at war, against which groups, and who could be targeted and detained. Many of these questions were never completely resolved. Senior State Department lawyers never appeared to fully accept that the United States was in a globe-spanning conflict with al Qaeda. The State Department and the Pentagon did not see eye to eye on who could be deemed a member of an organized armed group. Nor did they agree on whether the United States had the right to detain, much less target, “substantial supporters” of an enemy group. But as Brian Finucane, who served as an attorney-adviser at the State Department, and I recently wrote, the U.S. government’s legal culture tends to drive its lawyers toward approving operations and enlarging executive power. Where disagreements persist, this culture favors a form of cosmetic consensus in which ambiguous public-facing language masks interagency differences, while giving operators much of the flexibility they seek.
Of course, lawyers who disagree with this consensus can quit. But when powerful lawyers willing to buck the internal tide leave the government, the result is not necessarily less war. For example, Koh’s departure at the beginning of Obama’s second term did not stop the U.S. government from developing controversial new legal theories to justify expanding lethal operations under the 2001 AUMF to counter the Islamic State (also known as ISIS). His leaving may, however, have paved the way for the government to argue that the war on terror allowed for operations against rank-and-file members of the al Shabab terrorist group in Somalia—a significant expansion that Koh had successfully resisted during his tenure.
Humane succeeds as a bracing reminder not to grow comfortable with war as a status quo. But rather than focus on individual lawyers who had few if any effective tools to bring war to an end, it would be more productive to consider the rules and institutional habits that perpetuate imprudent war making.
As the International Crisis Group has recently argued, one important target for legal reform is the 2001 AUMF, which executive branch lawyers have treated as a deep well of authority to wage war not just against al Qaeda and its affiliates but also against so-called associated forces that have no connection to the 9/11 attacks, and even some groups (such as ISIS and its affiliates) that have broken with al Qaeda. The Biden administration should work with Congress to replace the 2001 AUMF with a new law that identifies where and with which groups the U.S. government is at war, removes the executive branch’s authority to expand the conflict without further legislative action, and requires reauthorization every two years so that the American people can debate and shape the wars that are being fought in their name.
But more is required. The War Powers Resolution that Congress enacted at the end of the Vietnam War to reinvigorate congressional checks and balances on war making has largely failed and needs a reboot. Bipartisan legislation recently introduced in the U.S. Senate would limit the president’s unilateral capacity to wage nondefensive war, cut off funds for unauthorized conflicts, and require Congress to revisit its war authorizations every two years. Most important, this legislation (which echoes several recommendations that Moyn and Goldsmith jointly made in a recent op-ed) would force greater public deliberation between the two branches about whether and where the country goes to war.
Reforming the president’s war powers promises to be a long slog and would by no means guarantee that the United States finds a greater measure of peace. Outside actors have a say, and so does the American public. Still, in a world where there are not enough safeguards to keep the United States from entering imprudent wars, such legal reforms could serve the twin goals of conflict prevention and democratic accountability. The twenty-first-century equivalents of the peace movements Moyn celebrates should throw their weight behind these efforts.