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Response to Kevin Jon Heller on War/Not War with Al-Qaeda

Last week, I wrote a post describing how opposition to US counterterrorism policies has vacillated over the past twelve years. I showed how arguments that the conflict with Al Qaeda is a war — or is not a war – have turned in large part on the rights and humanitarian issues at stake.  Within a few hours of my post, Kevin Jon Heller published a response at opiniojuris. I promised Kevin I would reply to his post. Here are my thoughts.

First, Professor Heller mischaracterizes one of my central claims, and, oddly enough, he never even mentions a passage in my analysis that flatly contradicts his depiction. Professor Heller states: “Ryan … takes international-law scholars to task for opportunistically flip-flopping on whether the US is involved in an armed conflict with al-Qaeda.” I suppose that some of the information that I presented could be used to mount such an argument, but that argument is not mine. Indeed, I expressly disavowed that type of claim. And, to emphasize that was not my claim, I included myself as part of the international law scholars whom Professor Heller suggests are hypocrites in my book. Here’s the claim that I made:

One caveat: The point here is not to show that any individual has flip-flopped. (Indeed, I refer to my own position in one of the examples below.)  Rather, the point is that the center of expert opinion in reaction to US counter-terrorism policy has vacillated on this key legal question.

Second, I want to address another part of Professor Heller’s analysis, even though it too is extraneous to my argument. Professor Heller proffers an unusual explanation of the reasons why many experts would have altered their position on whether an armed conflict exists. Professor Heller makes a potentially valid claim that a situation can fluctuate over time – emerging in and out of non-international armed conflict based on the intensity of violence and organizational composition of the non-state actor. He then, however, makes a remarkable descriptive claim. He posits that “if we examined many [later he says “most”] of their positions, we would find that their supposed inconsistency actually reflects a good-faith effort” to account for the ebb and flow of the conflict itself. Indeed, Professor Heller says he is “willing to wager” that this variable is the root cause of changes in legal views expressed when different rights have been at stake.

Professor Heller would have to prove a few incredible things to win that bet. First, we would expect to see that the fluctuation in intensity of violence and organizational composition of Al Qaeda correlates over time with the rise and fall of arguments for and against the existence of an armed conflict. Second, we would expect that “many” of the experts would openly acknowledge that there had been an armed conflict with Al Qaeda in the past even though there was not one at the time of their writing that an armed conflict does not exist. Third, we would need to account for contradictory evidence such as: experts’ claiming that it is inconceivable that there could ever be an armed conflict between a state and nonstate actor (regardless of intensity of violence or organizational makeup of Al Qaeda). Fourth, depending on the more specific claim Professor Heller wants to make, we would expect to see a correlation between the rights at stake and the ebb and flow of the armed conflict.

Finally, lest I leave any money on the table, let me address a closing remark by Professor Heller. In reference to 9/11, he asserts as though it were self-evident: “One attack, no matter how horrible, does not a (non-international) armed conflict make.” His rhetorical point here is meant to serve his analytic claim that those experts who denied the possibility of an armed conflict after 9/11 but prior to the US invasion of Afghanistan were clearly correct. I disagree. And I would recommend one of the most thoughtful analyses on that topic, written by Just Security’s Derek Jinks, September 11 and the Laws of War, 28 Yale Journal of International Law 1 (2003) [SSRN].

 

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About the Author

is co-editor-in-chief of Just Security. Ryan is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. Follow him on Twitter @rgoodlaw.