My Lloyd Cutler Rule of Law Lecture: "Law and the Use of Force: Challenges for the Next President"

Last night, I gave the Sixth Annual Lloyd Cutler Lecture on Rule of Law at the Supreme Court, in which I spoke about the domestic and international law applicable to the use of military force by the next President. The text is here and excerpts are below:

It will be critical for President Trump, Vice President Pence, and their senior advisers to learn and follow domestic and international law governing the use of force.

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Many previous Presidents, even those with government experience as state governors such as Presidents Reagan, Clinton, and George W Bush, were initially unfamiliar with these rules that limit their actions as Commander-in-Chief and head of state. They had to be schooled by their advisers and to learn the applicable law.

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During Mr. Trump’s Presidential campaign, I and many others were extremely troubled by his statements advocating counterterrorism policies that would violate domestic and international law. Such statements may have appealed to some voters during a campaign, but they must be strongly repudiated by a President of the United States.

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With respect to international law rules governing the use of force, the President and his White House advisers should resist any temptation to ignore them as “politically correct” or Lilliputian infringements on US sovereignty. If the United States violates or skirts international law regarding use of force, it encourages other countries -- like Russia or China -- to do the same and makes it difficult for the United States to criticize them when they do so. If the United States ignores international law, it also makes our friends and allies who respect international law -- such as the UK, Canada, Australia, and the EU countries -- less likely to work with us. Unlike Russia and China, the United States has many friends and allies who share our values, including respect for the rule of law. But we lose our friends when we do not act consistent with law and our shared values.

More generally, President Trump should recognize that when he speaks as President, he speaks to multiple audiences. He must be cautious not to advocate policies that will provide cover for unlawful actions by other governments. Moreover, statements that are popular with some in the United States may be highly unpopular and stir up anti-American sentiments abroad. When I made this argument in the Bush Administration, some of my colleagues responded by saying “It doesn’t matter what other countries think; they don’t vote for us.” But other countries DO “vote for us” by deciding whether to cooperate with us on intelligence, law enforcement, diplomatic, and military matters. During the Bush Administration, many European governments became reluctant to share intelligence information with us because they believed our intelligence agencies might use the information to commit violations of law.

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The Trump Administration must also recognize that foreign leaders face their own domestic political pressures and must respond to the views of their own populations.

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President Trump will find that he will be most effective in his international actions if he works with our allies rather than alienating them. The Bush Administration learned this lesson from its actions in its first term, including the Iraq war and some of its counterterrorism policies. In its second term, the Bush Administration found that it could be more successful through multilateral diplomacy. The United States achieves more, not less, through international cooperation.

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With respect to the conflicts with Al Qaida and with ISIS, President Trump should push hard Congress to enact a new AUMF early in 2017. Rather than go through the exercise twice, he should ask Congress to pass a comprehensive new authorization against terrorist groups that revises and updates the 2001 AUMF and also authorizes the use of force against ISIS.

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More generally, President Trump should ask Congress in 2017 to revise and update the War Powers Resolution, which has increasingly been ignored by recent Presidents.

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To the extent that international law rules regarding use of force are outdated -- and they are -- the Trump Administration should work with other countries to update them, rather than condemn or ignore them.

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Because they are likely not familiar with the domestic and international law rules that govern the use of military force and the conduct of military operations, President-elect Trump and Vice President-elect Pence should take time during the transition to be briefed on these rules and to understand why they are important.