Harvard Law School Professor Gabriella Blum LL.M. ’01 S.J.D. ’03 (top) is co-director of the new HLS-Brookings Project on Law and Security. White House counterterrorism adviser John Brennan (bottom) defended the United States’ right to pursue threats, no matter the country.
White House unveils new policy statement at HLS conference
President Obama’s top counter-terrorism adviser, John Brennan, delivered a major address clarifying the administration’s counter-terrorism policies and practices—especially the government’s targeting of Al Qaeda operatives abroad — in a keynote address at a Harvard Law School conference, “Law, Security, & Liberty After 9/11: Looking to the Future,” commemorating the 10th anniversary of the 9/11 attacks.
Brennan defended a broad conception of where the United States can use military force against members of Al Qaeda and its allies, but he stressed that all the administration’s counterterrorism actions are guided by a policy that they be conducted within the rule of law.
“The United States does not view our authority to use military force against Al Qaeda as being restricted solely to ‘hot’ battlefields like Afghanistan,” he said. “Because we are engaged in an armed conflict with Al Qaeda, the United States takes the legal position that — in accordance with international law — we have the authority to take action against Al Qaeda and its associated forces without doing a separate self-defense analysis each time.”
Still, he explained, “That does not mean we can use military force whenever we want, wherever we want. International legal principles, including respect for a state’s sovereignty and the laws of war, impose important constraints on our ability to act unilaterally — and on the way in which we can use force — in foreign territories.”
The speech received widespread attention in the national and international media. One conference attendee, Professor Martin Lederman of Georgetown Law, called Brennan’s remarks the “most comprehensive single statement of the Obama Administration’s policies and practices with respect to al Qaeda and other terrorist threats.”
The conference, held Sept. 16 and 17, marked the launch of the new Project on Law and Security, a joint venture of HLS and the Brookings Institution.
Participants and attendees from academia, government, and nongovernmental organizations examined the impact the attacks and the resulting “war on terror” have had on domestic security, governmental power, international law and legal ethics, and U.S.-Muslim relations.
Project co-director and HLS Professor Gabriella Blum LL.M. ’01 S.J.D. ’03 began the conference by encouraging attendees not only to reflect on developments of the last 10 years, but to apply lessons learned from our 10 years of counterterrorism efforts to the future.
The Harvard Law School community commemorated the 10th anniversary of Sept. 11 with a candlelight vigil on Jarvis Field. Hosted by Harvard Law School Dean Martha Minow, it was a moment for students, faculty, and staff to come together and reflect on the events of that day and the years that followed.
“9/11 was more than just a remarkably tragic historic event,” said HLS Lecturer on Law Juan Carlos Zarate ’97, who was the deputy assistant to the president and deputy national security adviser for combating terrorism from 2005 to 2009. “It really was a moment in our history where we realized that transnational, nonstate actors could have major geopolitical impact.”
The result, he said, has been “a maturation of the national security paradigm” in which government agencies and law-enforcement bodies work cooperatively in an “all-of-government approach” to fighting terrorism. He said that a similar approach has taken place internationally with the establishment of “multiple platforms of cooperation” in which the U.S. partners with other nations to share intelligence.
On the domestic front, HLS Professor Philip B. Heymann ’60 delivered a critical assessment of the war on terror’s impact on civil liberties. Americans have come to accept a number of changes—greatly expanded executive powers, including the right to try suspected terrorists who are American citizens before military commissions and expanded governmental surveillance powers—as a result of 9/11, he said.
“I think our liberties are considerable and people can act with a very considerable absence of fear, but the ground is shifting—and it’s shifting out of the consequences of fear,” he said. “It’s shifting because fear outweighs our concerns about living in a tolerably surveillance-free society.”
Several participants criticized some politicians for using the war on terror for self-serving political purposes.
“There are two things I never could have predicted on that awful morning in September,” said Ben Wizner, litigation director of the ACLU’s National Security Project. “The first is that terrorists would not succeed in making another major strike on U.S. soil in the decade to follow. The second is that, to a very large degree, many of our political leaders would behave as if they had succeeded.”
The result, he said, is that “we have in effect enshrined a permanent state of emergency in our law and politics in which terrorist threats are not contextualized, in which core values can be set aside next to demands of national security.”
Former deputy national security adviser Juan Carlos Zarate ’97 (left) discussed the maturation of the national security paradigm. Juliette Kayyem ’95, currently a lecturer at the Kennedy School, most recently served in the Department of Homeland Security.
A large portion of the conference debate about the war on terror’s impact on international law and ethics focused on the acceptance of targeted killings as U.S. policy, including the apparent expanded use of drone aircraft.
Kenneth Anderson ’86, professor at American University Washington College of Law, said that one of the lessons of 9/11 is that “we have to address the nonstate-actor threat with the use of force in some circumstances.
“Counterterrorism for us has been a more successful strategy than we probably thought it would be 10 years ago largely through two things: One is the development of technology that has enabled more focused targeting, but more focused targeting through technology that allows us to not fight our way through on the ground through a counterinsurgency war to confront the safe haven.”
Anderson said that the current U.S. policy on targeted killings of nonstate actors is one that has been put into place by State Department legal adviser Harold H. Koh ’80.
Yale Law School Professor Stephen L. Carter said there are genuine risks in the conduct of targeted killings because they are done in secret.
“They say, ‘Trust us,’” he said. “But my view is that ‘Trust us’ only works up to a certain point. As the war shifts more and more to other drones and other stand off weapons where we take little risk, two things happen: One is that it drops more and more off our radar screen; two, to the extent that it’s there, we’re asked to place more and more trust in the public officials who have the intelligence that could tell us what led to this particular attack.”
Chertoff on the law of 9/11
A new legal framework is needed to combat terrorism, says Chertoff
Former Secretary of Homeland Security Michael Chertoff ’78 outlined a paradigm shift in the nation’s approach to security, which he argued occurred before the attacks of 9/11. In a talk sponsored by the Federalist Society on Sept. 13, Chertoff said the actions of that tragic day only served to highlight “something we hadn’t recognized and which the law had not adequately accounted for,” and underscored the need for a new legal framework aimed at combating terrorism. Much of the internal fighting about how to approach the war on terror is about whether aspects fall into “the traditional bucket of law enforcement versus the bucket of war,” said Chertoff. Instead, he said, we “need a legal flexibility that actually fits the facts,” one that is created after a careful consideration of factors rather than one in which you try to “force a novel set of affairs into pre-existing categories.”