"Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser," by Michael P. Scharf and Paul R. Williams

Published by Cambridge University Press (2010)

Reviewed by Jennifer C. Daskal

This edited volume is devoted to some of the most momentous international law issues faced by successive State Department Legal Advisers dating back to the 1970s. Created in 1931, the post of Legal Adviser to the Department of State brings in-house the provision of legal advice to the Secretary of State that since the 19^th century had been provided by lawyers in the Department of Justice. The Legal Adviser functions as general counsel to the State Department, and provides advice on issues ranging from domestic law matters such as diplomatic real estate in the United States to international law matters of grave political importance.

The book primarily consists of first-person, oral histories of ten different Legal Advisers spanning the presidencies of Jimmy Carter to George W. Bush (as well as an introduction from Barack Obama’s current Legal Adviser, Harold Koh). More broadly, the book aims to explain the nature and role of international law through the lens of the State Department and its lawyers during times of crisis. These are moments when one might naturally think that the law simply steps aside and lets politics – including “policy by other means” – take over. This book stands as a refutation of that view.

The point of the book is to defend the value (and in some sense, the independent existence) of international law. It begins with a discussion of the Eric Posner-Jack Goldsmith thesis that international law is nothing more than “politics” and suggests that a rebuttal is needed based on the experience of State Department Legal Advisers. It ends with a discussion of the many ways in which government lawyers and policymakers use and are influenced by international law, ultimately concluding: “International law matters.”

The point is well-taken, but the thematic agenda makes the editorial comments (particularly the final two chapters) feel forced at times. The editors selectively emphasize examples in which international law constrained choices available to U.S. policy makers (i.e., the obligation to turn over the PLO terrorists who hijacked the Italian Cruise Liner Achille Lauro to Italy in 1985). They downplay other instances in which international law appears to have been molded to support pre-ordained policy choices (i.e., a Legal Adviser’s discussion of his role in developing arguments “in support of” the already-planned 1983 Grenada military action or the acknowledged 180-degree reversal in the interpretation of the Anti-Ballistic Missile Treaty between the Carter and Reagan administrations). They do acknowledge, however, that international legal rules “are often quite vague,” thereby providing space to develop interpretations “most consonant” with a stated policy goal.

The penultimate chapter addresses post-9/11 detainee abuse, which the editors attribute largely to the George W. Bush administration’s rejection of long-standing international law constraints. The chapter recounts opposition by career military lawyers concerned about the reciprocity costs of failing to comply with international law, key Supreme Court decisions restoring habeas to Guantanamo Bay detainees, and Congress’s overwhelming support for the McCain amendment, which prohibited the use of cruel, inhuman, or degrading interrogation techniques. It is well told. But in the interest of their overarching narrative, the editors overstate the subsequent course-correction, describing what they call the “active engagement of the Legislative branch in establishing legal regimes, in part based on international law” and broadly praising the Obama administration for, among other things, the decision to close Guantanamo Bay. This narrative ignores the fact that the same Congress that passed the McCain amendment also prohibited litigants from invoking the Geneva Conventions in civil proceedings against the United States and the courts from relying on international law in their interpretation of the War Crimes Act. And, of course, Guantanamo Bay remains open and the subject of intense political debate.

The enduring value of the book remains with its first-person oral histories, recalling some of the most vital legal disputes, international crises, and negotiated settlements over the past 40-plus years of American international law, diplomacy, and politics. Albeit self-selected and at times cursory, the narratives offer fascinating discussions of key peace treaty negotiations, the U.S.’s role in the development of ground-breaking international institutions, inter-agency battles for power and access, and foreign policy shifts and preferences over time. The accounts are edited for a lay-audience, replete with a useful glossary at the end. The book should have considerable pedagogical interest.

The discussions of the appropriate use of force, the role of international institutions, and the relationship between internal politics and effective lawyering are, in my opinion, the most compelling aspects of the narratives.

Use of Force

The narratives include a rich back and forth about the appropriate use of force, highlighted by the recurring debate about the U.S. government’s response to the 1988 terrorist attack on Pan Am Flight 103 over Lockerbie, Scotland, which killed all 270 aboard. Abe Sofaer (Legal Adviser to Reagan and George H.W. Bush) bemoans the George H.W. Bush administration’s decision to make the FBI and Justice Department, rather than the military, the lead agencies in responding to the attack. In Sofaer’s view, George H.W. Bush’s policy (continued by President Clinton) of “pursuing terrorists as criminals” and using force only “sporadically and symbolically in response to terrorist attacks,” led Osama bin Laden to deem “the United States as weak and unwilling to make sacrifices for its own defense.” Sofaer’s critique is joined by Davis R. Robinson, Reagan’s first Legal Adviser, who describes the criminal indictments of the perpetrators of the Pan Am attack as an empty gesture that only served to frustrate the families of the victims.

Others disagree. Both Michael J. Matheson (George H.W. Bush’s Acting Legal Adviser) and David R. Andrews (Clinton’s Legal Adviser) portray the indictments as providing a useful tool for obtaining international cooperation in responding to the attacks. Matheson notes that the indictments were helpful in obtaining Security Council-imposed sanctions on Libya. Andrews offers a captivating account of the lead-up to Scotland’s ultimately successful trial of one of the perpetrators and the creation of a settlement fund that resulted in Libya paying each family approximately $10 million. Moreover, as Sofaer himself acknowledges an immediate military response to the Pan Am attacks would have targeted the wrong countries, as it was initially assumed that Iran and Syria were the culprits, and it was determined that Libya was responsible only after a year-long investigation.

Other former Legal Advisers similarly challenge the view that force is the preferable response to a threat posed by terrorism. While Sofaer criticizes the failure to initially respond with force to the 1979 Iranian hostage crisis, Roberts B. Owen (Carter’s Legal Adviser) explains that the Carter administration worried at the time that such a reaction would result in the captors killing or otherwise harming the hostages. John B. Bellinger III (George W. Bush’s second Legal Adviser) describes his efforts to explain to key allies that the “‘Global War on Terror’ was not a legal term of art, and that in many instances, law enforcement can be the appropriate legal paradigm for addressing terrorist threats.”

Notably, even Sofaer’s own narrative suggests a more nuanced – or perhaps politicized – view of the appropriate use of the role of force than his proclamation that “not using force is a bigger problem today than using force” would suggest. Sofaer thus defends the Reagan administration’s decision to accede to a demand made by Palestinian terrorists who hijacked TWA Flight 847. He further explains the administration’s decision not to shoot down a flight carrying the terrorists who hijacked the Italian cruise liner Achille Lauro out of deference to a pre-arranged deal between Egypt and the terrorist-perpetrators.

Despite the book’s theme that international law matters, strikingly much of the discussion turns on policy, rather than strictly legal arguments as to the appropriate use of force. In fact, one of the Legal Advisers explicitly acknowledges this, with Matheson describing use of force cases as “rather unusual situations where typically Presidents make decisions on the basis of what they consider to be overwhelming national security needs.” The policies cross-cut party lines, with the George H.W. Bush and Clinton administrations grouped together as promoting a law enforcement response to terrorist attacks, and even the George W. Bush administration suggesting in its second term that law enforcement may be preferred to a military response in certain circumstances. These are debates that have obvious resonance today.

Interactions with International Institutions

The Legal Advisers offer a window into the role that international institutions play in both constraining and promoting U.S. actions. At several points in the book, various Legal Advisers take aim at the International Court of Justice’s (ICJ) for its decision that the U.S. intervention in Nicaragua in the 1980s violated international law. Outrage over this decision ultimately led to the Reagan administration’s withdrawal from the court’s compulsory jurisdiction. Some twenty years later, the United States again responded to an unfavorable ICJ opinion by withdrawing from the court’s compulsory jurisdiction. In this instance, the George W. Bush administration withdrew from the Optional Protocol to the Vienna Convention on Consular Affairs in response to the ICJ ruling that the United States was obligated to review and reconsider the death sentences of 51 Mexican nationals who had not been advised of their consular rights.

But despite concern about international institutions delving into – and criticizing – U.S. activities, the Legal Advisers also describe multiple instances in which international institutions have played a valuable role in promoting American interests. Owen describes the way in which the United States employed the ICJ to obtain an emergency order condemning Iran’s role in the 1979 U.S. Embassy hostage-taking. Owen credits this ruling with helping to quickly mobilize world opinion against Iran. Conrad K. Harper (Clinton’s Legal Adviser) explains how the Yugoslav War Crimes Court – which the United States took the lead in creating – ultimately served United States foreign policy goals by keeping indicted Bosnian Serb leader Rodovan Karadzic at bay during the Dayton Accords negotiations.

Moreover, Edwin D. Williamson (George H.W. Bush’s second Legal Adviser) describes ways in which a series of United Nations Security Council resolutions on Iraq, crafted by the United States, paved the way for the strong international support for the 1991 Gulf War and laid the groundwork for the subsequent 2003 invasion of Iraq. As Williamson explains:

I would also argue that Resolution 678 [relating to the Iraqi invasion of Kuwait] was a political resolution. At the time it was passed, we did not need any authorization to use force, because we had ample authority under the collective right of self-defense to do what we did. I thought that the self-defense argument, even a preemptive self-defense argument, was much harder to make in fall 2002 and spring 2003. However, there was no need to make that argument because to find an authorization to use force in 2003 it was enough to show that Resolution 687 had been flagrantly violated . . .

In other words, effective and creative use of international institutions promotes U.S. policy goals. Thus, there is a need to respect both international law and its associated institutions so as to ensure their potency in the future. The George W. Bush administration recognized this when it fought to persuade Texas to comply with the ICJ by reconsidering the death penalty imposed on Jose Ernesto Medellin, even as it took actions to withdraw from the court’s compulsory jurisdiction going forward.

Politics and the Law

As a former government lawyer, I was particularly struck by the repeated discussion about the perennial battles for access – the constant struggle to be included in the discussions that set policy and action. Robinson contrasts his inclusion in discussions regarding the legal justification for the 1983 military intervention in Grenada, with the failure to seek his views prior to taking action in Nicaragua. Sofaer discusses being shut out of discussions on the Iran-Contra affair, and Taft describes his exclusion from controversial decisions regarding post-9/11 treatment of detainees. Implicit (and at time explicit) in these narratives is the view that had these lawyers been involved from the beginning, they could have achieved better policy outcomes more in line with international law.

They are probably right in this view. The extent to which international law matters, and the extent to which it constrains policy makers, depends to a large degree on the policy makers’ ex ante view of international law. To the extent that policy makers view international law as relevant to the formulation of policy and action – whether out of self-interested calculations or an inherent respect for the rules of the international community – they are likely to consult with and take into account the views of their international lawyers in deciding what actions to take. Conversely, to the extent that policy makers view international law as an undue constraint on national self-interest, they are likely to exclude the lawyers from the discussion and proceed accordingly. In that case, international law falls into the category of justification after the fact. But treating international law as either irrelevant altogether or merely post hoc window dressing has severe costs, as the George W. Bush administration learned to its sorrow, causing it to devote extensive resources in its second term to rebuilding legal-political relations with key allies and seeking to demonstrate its compliance with international law, as recounted by former Legal Adviser Bellinger.

Lawyers themselves can contribute to this dynamic, seeking, within the constraints of what is lawful, to develop sound arguments in accordance with their principals’ policy goals. And this is in fact what I believe most government lawyers do. Sure, lawyers should – and often do – say no. But more often than not, a good government lawyer will come up with the best possible legal arguments in support of a client’s policy goals, while also acknowledging the countervailing legal arguments and other risks associated with a proposed action. Those risks include, among other things, the possibility that an expedient legal justification is manipulated by others to achieve a nefarious policy outcome.

Former legal adviser Robinson recognized this when, for example, he explains that the Reagan administration’s decided not to invoke a robust Article 51 self-defense argument in support of its actions in Grenada, out of concern that such legal reasoning might bolster the Soviet Union’s view that it was justified using force to quell anti-Soviet or dissident movements within its sphere of influence. So did many of the nation’s career military lawyers when they warned, post 9/11, that proposed methods of interrogation could erode standards that protected U.S. troops. As these lawyers recognized, merely expedient legal views today can have unanticipated bad outcomes tomorrow.

So yes, international law matters. It is not merely international politics, lightly re-named. But neither – at least in the hands of this country’s State Department’s chief international legal counsels over many decades – is international law ever truly unmoored from policy and raison d’etat. International law constrains, as it should. But it also can be shaped, ideally with an awareness of the long-term consequences, to serve a desired foreign policy end.

Jennifer Daskal is currently a fellow at Georgetown Law School's Center on National Security and the Law. From 2009-2011, she served as counsel to the Assistant Attorney General for National Security at the Department of Justice.