All the Pentagon's Lawyers

One man's targeted strike is another man's state-sanctioned murder.

In 1999, Qiao Liang and Wang Xiangsui, both colonels in China's People's Liberation Army, published a slender book called Unrestricted Warfare. The two officers predicted that technological innovations and globalization would change warfare almost beyond recognition. In a world of cyberattacks, asymmetric warfare, and transnational terrorism, they wrote, "the three indispensable 'hardware' elements of any war … soldiers, weapons and a battlefield … have changed so that it is impossible to get a firm grip on them.… [I]s the war god's face still distinct?"

Qiao and Wang published Unrestricted Warfare two years before the 9/11 attacks, and their description of likely changes in warfare was strikingly prescient. In previous columns, I've described some ways these changes challenge our most basic ideas of what a military is, does, and should do, and suggested that failing to fully confront those changes and challenges is a surefire way to end up with a national security strategy that's both incoherent and inefficient.

It's also a surefire way to damage the rule of law.

A lot of ink has been spilled defining the rule of law (some of it by me), but at root it's pretty simple. The rule of law requires that governments follow transparent, universally applicable, and clearly defined laws and procedures. The goal is to prevent the arbitrary exercise of power. When you've got the rule of law, the government can't fine you, lock you up, or kill you on a whim -- it can only do that in accordance with pre-established rules that reflect basic notions of humanity and fairness.

When you don't have the rule of law, life can get unpleasant. Qiao and Wang, for instance, come from a country where the rule of law is only partially realized, and arbitrary detention and executions without due process remain common. Or consider the grievances enumerated in the American Declaration of Independence: Britain's King George III, the colonists complained, deprived them of "the benefits of Trial by Jury," refused "his Assent to Laws for establishing Judiciary powers," transported prisoners "beyond Seas to be tried for pretended offences," and "affected to render the Military independent of and superior to the Civil power."

Bad stuff! Americans fought a long and bloody war over it.

Today, however, the very same changes that challenge our long-held assumptions about the military also challenge the rule of law America once fought so hard to establish both domestically and globally. (The United States was instrumental in the creation of the United Nations and the various international human rights treaties and institutions.) For when the idea of "war" loses definition -- when the war god's face grows indistinct -- we lose any principled basis for deciding when the law of war applies, and when it doesn't.

That sounds like a tedious, technical issue -- the kind of thing usually discussed in long, tedious legal articles -- but it's no mere technicality. The law of war permits a wide range of state-sanctioned behaviors that are considered illegal (and immoral) when the law of war doesn't apply.

Start with the obvious: In war, the willful killing of human beings is permitted, whether the means of killing is a gun, a bomb, or a long-distance drone strike. But just try going out onto Main Street and bashing a random passer-by over the head with a brick until he's dead: When the laws of war don't apply, we call that murder.

The same goes for a wide range of other behaviors. In war, it's OK for a lawful combatant to knowingly inflict injury and death on others (as long as they're enemy combatants or otherwise participating in hostilities, or, if they're ordinary civilians, as long as your actions were consistent with the principles of proportionality and distinction). Ditto destruction of property, and ditto various restrictions on individual liberties. In war, enemy combatants can be detained (with little or no due process) for the duration of the conflict -- not because they have committed crimes, but to keep them from returning to the battlefield. Civilians can also be detained if they pose specific threats.

This is a radical oversimplification of a very complex body of law. But as with the rule of law, the basic idea is pretty simple. When there's no war -- when ordinary, peacetime law applies -- agents of the state aren't supposed to lock you up, take your stuff, or kill you, unless they've jumped through a whole lot of legal hoops first. You're protected both by domestic law and (in theory) by international human rights law.

When there's a war, though, everything changes. It's not quite a free-for-all -- torture, rape, and killing that is willful, wanton, and "not justified by military necessity" remain crimes under the law of war -- but there are far fewer constraints on state behavior.

This seems reasonable enough, and it's not inherently inconsistent with the rule of law. As long, that is, as war is the exception, not the norm, and as long as we can all agree on what constitutes a war, and as long we can tell when the war begins and ends, and as long as we all know how to tell the difference between a combatant and a civilian and between places where there's war and places where there's no war.…

You see the problem. When concepts such as "war" get blurry, the law gets blurry. When it gets blurry enough, you lose the predictability and transparency so vital to any idea of the rule of law.

And this is where we are right now. The U.S. government hasn't offered clear, full, and consistent answers to any of the key rule-of-law questions related to the ongoing war against al Qaeda and its "associates." Is there a future point at which the war will end and detainees will be released? Based on what criteria might someone be considered a combatant or directly participating in hostilities? Is serving as Osama bin Laden's chef enough? How about the little old Somali lady in Detroit who gives money to an Islamic charity that serves as a front for a terrorist organization? Can she be targeted? What constitutes hostilities, and what does it mean to participate in them? And just where is the war? Does the war (and thus the law of war) somehow "travel" with combatants -- if a suspected al Qaeda operative goes to Pakistan, Yemen, or Somalia, do the laws of war apply to U.S. actions in those countries?

These questions matter.

Take drone strikes. Say -- hypothetically! -- that the CIA uses an unmanned aerial vehicle to kill a U.S. citizen who it suspects is a member of Mali's Ansar Dine, a creepy militant Islamist group said to be allied with al Qaeda.

If being a suspected member of Ansar Dine makes someone a combatant in a war on al Qaeda and the laws of war apply with regard to combatants regardless of the sovereign state within which they operate, then the hypothetical drone strike is perfectly lawful, U.S. citizenship notwithstanding. There's a war; the laws of war apply; enemy combatants can be targeted and killed; and everything is peachy.

But if there's no war -- or if the suspected Ansar Dine member is neither a combatant nor a civilian engaged in hostilities, or if there is a war, somewhere, but not in Mali -- then the hypothetical drone strike would be state-sanctioned murder (of a U.S. citizen, no less).

The problem is that we have no principled basis for deciding how to categorize such targeted killings. Barack Obama's administration -- much like George W. Bush's administration before it -- has argued that these are fact-based, individualized determinations. But the information on which the determinations are made is classified. Outside a small circle of U.S. executive branch officials, no one knows what evidence was relied on, and no one knows precisely how the United States defines "combatant." What's more, the administration takes the view that no court has jurisdiction to review these determinations and that selected members Congress need only be informed in a general way.

I can't find it in me to condemn the decisions made by my former colleagues in the Obama administration or those who preceded them in the Bush administration. The law of war was developed in a different era, with a different set of realities in mind. The world has changed, and today we're still stuck trying to make legal arguments based on once-clear categories that no longer have much value. (To paraphrase the immortal Donald Rumsfeld, Bush and Obama went to war with the law they had, not the law we might have wished they had). The result, though, is that neither law nor political institutions now offer any limiting principles on state use of coercion and force.

Back in 1999, Qiao and Wang called it exactly right. Globalization, technological change, and the rise of transnational terrorism would, they warned, lead to "the destruction of rules … [and] the domains delineated by visible or invisible boundaries which are acknowledged by the international community lose effectiveness." In this new era, "all means will be in readiness … and the battlefield will be everywhere … [and] all the boundaries lying between the two worlds of war and non-war, of military and non-military, will be totally destroyed."

Every individual detained, targeted, and killed by the U.S. government may well deserve his fate. But when a government claims for itself the unreviewable power to kill anyone, anywhere on Earth, at any time, based on secret criteria and secret information discussed in a secret process by largely unnamed individuals, it has blown a gaping hole in the rule of law.

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National Security

Highway Robbery

Why do Mitt Romney and Barack Obama want to hand over so much of your money to men with guns?

In August 2003, some colleagues and I were held up by armed bandits on the highway in Fallujah, Iraq. (Don't ask why I was dumb enough to be wandering around Fallujah.) My bandit -- there were quite a few of them, but I like to think of the guy who stuck a gun in my face as my bandit -- was straight out of central casting, complete with a red kerchief around his mouth and nose to disguise his facial features.

I doubt he knew much English, but he knew enough to say the magic words. "Money, money, money!" he demanded with a guttural, heavy accent, waggling his gun unnervingly around my head.

I handed him my wallet. He took out the cash and handed the empty wallet back to me.

"Shukrun," I said, using my sole word of Arabic. "Thank you."

"You are welcome," he said, and sprinted off to wherever bandits go when they're not robbing people. (This was in the good old days of 2003, when gunmen in Fallujah just robbed you.)

In some ways, this story is a reasonable metaphor for the current debate about the defense budget. Men with weapons intone, "Money, money, money"; we hand it over and say "thank you," even though much of the time we don't really know who they are or what they plan to do with our money.

At least, that's how it can look from the outside. The presidential candidates seem to be competing over who is more dedicated to ensuring a steady supply of funds to the Pentagon. And we're not talking about chump change: the United States spends more on defense than any other nation. In fact, it accounts for 41 percent of global defense spending: annually, we spend almost five times more on defense than China with its 1.3 billion people, and nine times more than Russia. We spend more on defense each year than the next 15 biggest spenders combined.

Obviously, some of this money goes to important programs -- salaries for soldiers, equipment, training -- but the Pentagon, with its vast budget and complex accounting system, is also an infamous money pit. Every couple of years, the inspector general or the Government Accountability Office discovers that large sums of DOD money have been spent on mysterious, never-accounted-for purposes.

I wrote last week about DOD's difficulty tracking humanitarian assistance projects, but the problem isn't unique to such efforts. DOD's a big place, and stuff gets lost: money, programs, people, organizations, the occasional small war. I spent far too much time, during my stint at the Pentagon, telling irritable twenty-somethings on the Hill that the Pentagon was Very Sorry for certain apparent budget discrepancies. Mistakes have been made.

Even many easily understood costs seem to be spiraling out of control: health care already accounts for nearly 10 percent of the defense budget, and DOD spending on health care has grown twice as fast as health care spending in the civilian sector. In a goofy-but-illuminating exercise, an analyst at the Center for Strategic and Budgetary Assessments concluded that if the defense budget increases only in line with inflation each year while health care costs continue to increase at their current rate, virtually the entire defense budget would go to health care costs by 2039. To say that the defense budget could use a long, hard look would be the understatement of the decade.

Notwithstanding that backdrop, Team Obama and Team Romney are eager to assure us that they'll give the Pentagon plenty of money. How much money? Obama: A lot. Romney: A lot, plus even more. "Supporting our troops" always plays well with voters, and the current threat of budget sequestration offers extra opportunities for campaign trail posturing.

"Mitt will begin by reversing Obama-era defense cuts," Romney's campaign website assures potential voters. President Obama, complains Romney, has "repeatedly sought to slash funds for our fighting men and women." (He ignores the fact that the few "cuts" so far have involved reductions to the budget for Overseas Contingency Operations, reflecting the end of the Iraq War, rather than from cuts to the base defense budget.) Right now, the DOD base budget accounts for about 3.6 percent of GDP. Romney promises that he'll set the base defense budget at a floor of 4 percent of GDP.

How much money is that? Larry Korb of the Center for American Progress Action Fund estimates that the Romney proposal would "result in $2.3 trillion in added spending over the next decade compared to the plan presented to Congress by the Obama administration." Boiled down, the Romney defense budget plan is simple: Give the guys with guns money money money.

As a strategy for dealing with Iraqi bandits, this approach makes sense. As a strategy for dealing with the Pentagon, it does not. For one thing, as noted above, "hand over the money" isn't a helpful approach to tough issues such as waste, fraud, or runaway health care costs. Romney promises to address such problems with "proper management," which is surely unobjectionable. But his pledge to get rid of "byzantine rules" and "wasteful practices" is remarkably short on detail.

It's also not clear that Pentagon leaders want all the money the Romney campaign and its Republican congressional allies are so eager to throw at them. Unlike Iraqi bandits (and more than a few Beltway Bandits), Pentagon leaders keep trying to turn down some of the money dangled in front of them. For every hour senior Pentagon officials spend apologizing to Congress for waste and inefficiency, they often spend another hour trying to fend off congressionally mandated waste and inefficiency.

When I was a newly minted Pentagon employee, one of the things that astounded me most was how hard it was to get Congress to stop funding stupid stuff. This should not have surprised me, since funding stupid stuff is one of Congress' constitutional functions, but it surprised me nonetheless. I recall, for instance, former Defense Secretary Robert Gates' so-called "heartburn letters" to congressional appropriators. Most of his complaints related not to proposed funding cuts, but to Congress' insistence on giving DOD money for programs the military did not want or need, such as extra VH-71 helicopters or C-17 Globemaster IIIs.

How about President Obama's defense budget proposals? Obama rightly points out that sequestration -- which he says would "endanger" the military -- was not his idea. At the moment, both Republicans and Democrats are contentedly blaming each other for the sequestration threat, but both parties know that draconian defense cuts can -- and almost certainly will -- be avoided in a last-minute compromise.

President Obama, who has presided over several years of continued growth in the DOD base budget, is now proposing to shave about 1 percent from the base defense budget in fiscal year 2013. Adjusting for inflation, the Obama defense budget proposal would more or less maintain current levels of military spending over the next decade.

Back in March, senior military leaders testified that this miniscule future trimming of the defense base budget was an appropriate way to increase efficiency while protecting core needs. Republican congressman Paul Ryan -- now Romney's vice-presidential running mate -- responded sulkily, saying that he didn't "think the generals are giving us their true advice." (General Martin Dempsey, chairman of the Joint Chiefs of Staff, responded more politely than might have been expected: " I think there's a difference between...having someone say they don't believe what you say versus ... calling us a collective of liars.")

Unlike Romney's arbitrary floor of 4 percent of GDP, Obama's budget proposal has the virtue of sanity. With the U.S. defense budget still larger, in real terms, than it has been at any point since World War II, the burden should be on those who want to increase DOD's budget to explain why more is so urgently necessary, particularly at a time when the economy is so weak and the federal deficit so high. Romney offers no explanation, just the kind of sententious posturing that generally substitutes for strategy: "The cost of preparedness may sometimes be high, but the cost of unpreparedness is almost always higher." (Preparedness for what, exactly?)

President Obama's proposed defense budget is less irresponsible than Mitt Romney's, but his approach to defense spending, which essentially hews to the status quo, is also unsatisfying.

With the election just months away, neither party is inclined to take on the hard questions: how should we understand the emerging security landscape? What are the real threats we face, and what are the opportunities? What does U.S. security mean, in a globalized and interconnected world? What kinds of risks are unavoidable, and what kind of trade-offs are inevitable? Is the military, as currently constituted, the right institution to respond to the most plausible threats and seize emerging opportunities? How might the military need to change for it to do what we'll need it to do? And then, finally: does our budget reflect our strategy, or drive our strategy?

If we don't start having a more serious discussion of those questions, we risk having a military with more and more money, but less and less ability to use it well.

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