Consider the Duck-Rabbit

How this Wittgenstein sketch explains the Somalia SEAL raid.

Consider the duck-rabbit.

As art, it ain't much. But as a metaphor for the legal conundrums created by the war on terror, it's pretty good.

The humble duck-rabbit has an impressive pedigree: In the 1930s, the philosopher Ludwig Wittgenstein sketched it for his Cambridge University students to illustrate his theory of language games. "I shall call the following figure ... the duck-rabbit," he declared. "It can be seen as a rabbit's head, or as a duck's." So -- naturally -- when I read reports on the recent U.S. "snatch and grab" operations in Libya and Somalia, I immediately thought of the duck-rabbit.

Yes, readers, this is what happens to those of us who leave government service and go into academia: One minute, we're in the White House Situation Room making vital, real-world policy decisions; the next, we're yammering on about long-dead European philosophers and drawing pictures of duck-rabbits. But bear with me.

The snatch-and-grab operations (one successful, one aborted prior to the capture of the target) triggered a renewed bout of blogospheric commentary on the legal status of the global war on terror (or GWOT, or the "armed conflict against al Qaeda and its associates," or the "global struggle against violent extremism," or whatever we're calling it these days). You know: Were these law enforcement operations, military operations, or something else? Were the targets (Abu Anas al-Libi and Abdikadir Mohamed Abdikadir, alias Ikrima) wanted criminals or enemy combatants? And so on.

Legal experts have debated the very same questions for well over a decade now, starting way back when the Bush administration first began to send detainees to Guantanamo and then-Attorney General Alberto Gonzales quaintly pronounced the Geneva Conventions "quaint." Were the 9/11 attacks crime, or war? Is the legal framework applicable to combating terrorism a matter of international criminal law and human rights law, or the law of armed conflict?

I think it's time to face up to an uncomfortable truth: These questions have no answers. They sound like they should have answers, but they don't, they won't, and they can't. In fact, they're the functional equivalent of arguing about whether the duck-rabbit is a rabbit or a duck.

The search for legal certainty

This hasn't stopped legal commentators from insisting that there's a manifestly right and a manifestly wrong way to understand the 9/11 attacks and subsequent U.S. counterterror efforts.

Immediately after 9/11, many legal experts took the view that since the 9/11 attacks were carried out by non-state actors using nothing that resembled traditional weapons, they were best understood as crimes (albeit crimes of a frightening magnitude and complexity) and were therefore appropriately addressed through an ordinary law enforcement paradigm.

French law professor Alain Pellet labeled the claim that the United States was at war with al Qaeda "legally false," and Amnesty International argued that under international law, "It is not possible to have an international armed conflict between a state on the one hand and a non-state actor on the other." James Cole (who was later appointed to a senior Justice Department position by President Obama) similarly insisted in a 2002 article that "for all the rhetoric about war, the Sept. 11 attacks were criminal acts."

More than a decade later, variants of this view continue to have strong adherents. As a recent European Council on Foreign Relations report by Anthony Dworkin notes, most European legal scholars and courts  reject "the notion of a de-territorialised global armed conflict between the US and al-Qaeda" and believe that "the threat of terrorism should be confronted within a law enforcement framework."

But if some commentators viewed law enforcement as the "obviously" correct legal paradigm for addressing 9/11 and subsequent terrorist threats, many others insisted with equal certainty on the correctness of the opposite proposition. "There is little disagreement ... that if the September 11 attacks had been launched by another nation, an armed conflict under international law would exist," argued Justice Department lawyers John Yoo and James Ho in 2001. This "should qualify the attacks as an act of war."

The Obama administration's legal analysis is similar. As former White House counterterrorism advisor (and current CIA director) John Brennan put it in 2011, "[W]e are at war with al Qaeda. In an indisputable act of aggression, al Qaeda attacked our nation and killed nearly 3,000 innocent people." President Obama has repeated the same sentiment, leaving little room for doubt: "Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces."

Back to the duck-rabbit

Return to the duck-rabbit, which achieved scholarly immortality through its inclusion in the posthumous publication of Wittgenstein's Philosophical Investigations. It is a mistake, Wittgenstein argued, to imagine that words are straightforward representations of some fixed external reality; rather, language itself is inseparable from context. Thus, as Wittgenstein put it, "The picture [of the duck-rabbit] might have been shewn me, and I never have seen anything but a rabbit in it.... [But imagine now] I see two pictures, with the duck-rabbit surrounded by rabbits in one, by ducks in the other."

When the duck-rabbit is surrounded by other images that appear to "clearly" and unambiguously represent rabbits, engaged in typically rabbit-like activities, one would never think to see the duck-rabbit as anything but a quickly sketched rabbit. But when the duck-rabbit is surrounded by images that are "clearly" of ducks, engaged in duck-like activities, one would be equally unlikely to perceive the duck-rabbit as anything other than a duck.

Looking back and forth between a picture in which the duck-rabbit is surrounded by rabbits and a picture in which it is surrounded by ducks, wrote Wittgenstein, one would "not notice that [the original duck-rabbit image is] the same" in each. But "[d]oes it follow from this that I see something different in the two cases?"    

Like Wittgenstein's duck-rabbit, the 9/11 attacks can be seen as crime or as war -- and, as with Wittgenstein's duck-rabbit, it would be a mistake to insist that one vision is somehow "truer" than another, and equally mistaken to insist that there is a "right" and "wrong" legal paradigm by which to make sense of the 9/11 attacks.

Why it matters

Of course, saying that there is neither a "right" nor "wrong" way to understand terrorism doesn't mean that the choice of paradigms is inconsequential. After all, the choice of "duck" versus "rabbit" is hardly inconsequential, if one is a hunter -- or, for that matter, if one is a rabbit, or a duck. (If it's duck-hunting season but not rabbit-hunting season, ducks are fair game but rabbits are immune from violence; if it's rabbit-hunting season but not duck-hunting season, the opposite is true. The lawfulness of the hunter's shot depends on whether we view the duck-rabbit as duck or as rabbit. For the duck-rabbit, survival itself is at stake.)

So it is with U.S. counterterror activities. "The speaking of language is part of an activity, or a form of life," noted Wittgenstein. If the events of 9/11 constituted an "armed attack" and U.S. efforts to combat terrorism constitute "a war," then the international law of armed conflict applies; if 9/11 was a crime (albeit a horrific crime), then ordinary criminal law applies. And a great deal hinges on which legal framework we choose, for war rules are extremely permissive when it comes to the use of lethal force and other forms of state coercion, while the law enforcement framework is far less permissive.

In a war, the United States can lawfully kill enemy combatants with no judicial process whatsoever, and it can lawfully capture them and detain them indefinitely without trial. But if there's no war, suspects must be treated as innocent until proven guilty. They can't be killed just because officials believe they might commit further crimes in the future, and if they're apprehended, they need to be provided with lawyers and brought promptly before a duly established court.

The war/not-war distinction matters. If we can't figure out whether or not there's a war -- or where the war is located, or who's a combatant in that war and who's a civilian -- we have no way of deciding which rules to apply. But if we can't figure out what rules apply, we lose any principled basis for making the most vital decisions a democracy can make.

When can lethal force be used inside the borders of a foreign country? Which communications and activities can be monitored, and which should be free of government eavesdropping? What matters can the courts decide, and what matters should be beyond the scope of judicial review? When can a government have "secret laws," and when must government decisions and their basis be submitted to public scrutiny? Who can be imprisoned, for how long, and with what degree, if any, of due process? Who is a duck, and who is a rabbit?

Ultimately: Who lives, and who dies?

Forget about law -- and forget about lawyers

We can ask whether "snatch and grab" operations or drone strikes are "legal" until we're blue in the face, but in a world full of duck-rabbits, we won't learn anything interesting or useful.

Instead, we should focus on some very different questions: Do we prefer a world in which there are few constraints on the state's use of lethal force, which creates one set of dangers -- or do we want a world in which the state is more constrained, which creates a different set of dangers? How can we manage the dangers that accompany either vision? Or, if this is a false choice, what kind of world do we want to live in -- and how can we get there?

These are questions about morality, policy, and competing visions of the good, and I don't know how we will ultimately decide to answer them. But I do know one thing: Today, as in 2001, those who look to the law -- or to lawyers -- for guidance will look in vain.


National Security

The Failure of Impasse

From Vietnam to Syria, the appalling history of U.S. efforts to end wars by creating stalemate.

The last six weeks have left me convinced that the United States' Syria policy -- if "policy" is not too generous a term -- could hardly get any worse.

Apparently, I was wrong, at least if the Washington Post is to be believed. The Post reported on Oct. 3 that, while the CIA is "expanding a clandestine effort to train opposition fighters in Syria," the goal of the program, "defined by the White House's desire to seek a political settlement," is to provide just "enough support to help ensure that politically moderate, U.S.-supported militias don't lose but not enough for them to win." (My emphasis.)

If this is true, it's beyond appalling.

According to the Post, the White House's notion is that such willful half-measures will eventually help further a negotiated end to the conflict. After more than two years of military stalemate, Bashar al-Assad's murderous government forces appear to have gained the upper hand, while al Qaeda-linked factions within the rebel movement are displacing the more secular opposition groups. This, of course, is bad: From a U.S. perspective, pretty much the only thing worse than the military triumph of Assad's Iranian-supported regime would be the military triumph of extremist, Islamist rebels tied to al Qaeda. What to do?

Enter, presumably, some self-styled geniuses of realpolitik in the White House, suggesting an approach stunning in its cynicism: Let's tip the balance ever so slightly back towards the moderate rebels, in hopes of fostering a renewed "stalemate among the warring factions."

Henry Kissinger would have been proud. But as a strategy for an administration ostensibly committed to human rights and atrocity prevention, this approach is both foolhardy and morally bankrupt. As General Martin Dempsey, chairman of the Joint Chiefs of Staff, recently observed, the Syrian conflict could take "a decade" to play out. Meanwhile, the direct costs of a prolonged military stalemate will be borne not by the United States, but by the Syrian people.

The U.S. pursuit of "stalemate" in other people's conflicts has a long and shameful history. To note just a couple of highlights, there was Kissinger's misplaced conviction, in the early 1970s, that military stalemate would be just what was needed to bring about peace between Arabs and Israelis. "[A] prolonged stalemate," Kissinger believed, "would move the Arabs toward moderation."

That worked well.

Then there was the Iran-Iraq War. Even as the Untied States provided covert support to Iraq's Saddam Hussein -- and the CIA turned a blind eye while Saddam used chemical weapons against Iranian troops -- the general policy of the Reagan administration was, as former Army War College professor and CIA analyst Stephen Pelletiere put it, that there "should be no victor" in the conflict. The United States disliked both the Shiite Islamic revolutionary regime in Iran and Hussein's Sunni-dominated Arab Socialist Ba'ath Party, and preferred that the war have "no winner in the sense of one side decisively defeating the other."

The predictable outcome of this approach was sustained regional instability, catastrophic losses, and still-festering resentment on both sides. As many as one million people were killed during the eight-year Iran-Iraq war, and in a very real sense, the conflict has never ended. Today in Syria, Iranian-backed Hezbollah forces are fighting with rebels belonging to al Qaeda's Islamic State of Iraq and the Levant.

What goes around comes around.

The White House's apparent support for an extended military stalemate in Syria may have been inspired in part by an Aug. 24 New York Times op-ed by Edward Luttwak. "A victory by either side would be equally undesirable for the United States," Luttwak argued. Thus, "[m]aintaining a stalemate should be America's objective. And the only possible method for achieving this is to arm the rebels when it seems that Mr. Assad's forces are ascendant and to stop supplying the rebels if they actually seem to be winning."

It's true that prolonged stalemates can sometimes push opposing sides toward a negotiated settlement. But this can happen only when all parties are rational actors -- and when external factors weighing against compromise don't trump incentives for meaningful negotiation. For stalemate to produce compromise, the costs of the former must also be borne by those with the power to end the conflict, rather than mainly by those who are its victims.

In Syria, none of these conditions exists. As a report by the International Crisis Group (ICG) concluded earlier this summer, the notion that "military pressure would force the [Assad] regime to alter its calculus so that it would ... negotiate its demise" rests on false assumptions. It ignores "the apparent determination of Iran, Hizbollah and Russia to do what it takes to keep the regime afloat and bring the armed opposition to its knees [and] the fecklessness of an opposition in exile fighting for a share of power it has yet to achieve. And it assume[s] that the Assad regime has a ‘calculus' susceptible to be changed, not merely a fighting mode designed to last."

Against this backdrop, the ICG concludes that the "stalemate" approach, "in which [external] allies give both sides enough to survive but not prevail," is no kind of solution at all: Rather than bringing about a negotiated settlement, such an approach would only "perpetuate a proxy war with Syrians as primary victims."

Luttwak's Aug. 24 op-ed argued that "the only possible alternative" to fostering stalemate in Syria is "a full-scale American invasion to defeat both Mr. Assad and the extremists fighting against his regime."

That's wrong. While there are no "good" options in Syria, the United States doesn't have to choose between full-scale military intervention -- followed, Luttwak suggests, by a long-term U.S. occupation -- and a policy of arming moderate Syrian rebels at a level that prevents them from either losing or winning. There are at least two other options.

The first option, of course, is to stay out the Syrian conflict altogether. This offers no guarantee of a good outcome, either from the perspective of U.S. regional interests or from the perspective of the Syrian people, but it would at least ensure that the United States doesn't actively prolong the conflict at the expense of ordinary Syrians.

To be sure, such a "clean hands" approach is unsatisfying. But in the just war tradition, as in medical ethics, the guiding principle of action is primum non nocere: "First, do no harm." And refraining from military intervention -- including indirect intervention, in the form of arming and training Syrian rebels -- doesn't require the United States to abandon non-military efforts to end the conflict. The United States could accelerate efforts to work both with Russia and Iran, the Assad regime's primary backers, to find a way to bring the Syrian conflict to an end.

Granted, this approach faces long odds of success. If staying out of the conflict seems unacceptable, there's another option that lies in between doing nothing and massive military intervention: The United States should commit itself to helping Syria's moderate rebels win.

This need not involve Iraq War-style "shock and awe" airstrikes, an extensive ground invasion, and a multi-year U.S. occupation, an approach that Luttwak and others are right to suspect would probably also do far more harm than good -- and that is unlikely to garner much popular support at home. An alternate military approach might involve having U.S. Special Forces provide weapons and on-the-ground training to the Free Syrian Army -- with a view not to creating a military stalemate, but to giving them genuine combat overmatch against both Assad's forces and al Qaeda-linked rebels.

In his enthusiasm for drone strikes and high-profile raids involving Navy SEALs, President Obama seems to have largely overlooked the potential value of Army Special Forces, whose primary mission has always been unconventional warfare. Special Forces soldiers are trained to build the capacity of indigenous fighters while staying in the background themselves, letting local actors retain ownership of their own battles.

While no panacea, making more extensive use of Army Special Forces in Syria might offer the United States its best hope of decisively tipping the military balance in favor of moderate factions without embroiling itself in a full-scale war and occupation. Such an approach carries it own risks, of course -- but if we truly care about the outcome of the Syrian conflict, we need to consider it more seriously.

I remain painfully torn between a belief that the United States should sit this one out entirely and a conviction that we should intervene decisively to try to end the conflict. But I do know one thing for sure: The military "stalemate" that existed for most of the last two years has already killed an estimated 110,000 Syrians.

If the United States pursues a policy premised on the belief that renewed stalemate is preferable to having "a clear victor," how many more Syrians are going to die?