Law and the Use of Force - Challenges for the Next President




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Nov 24, 2016
by Michelle Dai Zotti
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Law and the Use of Force - Challenges for the Next President

Former legal adviser to the Department of State delivers the annual Lloyd N. Cutler Lecture on the Rule of Law - and offers advice to incoming President Trump

On January 20, 2017 the US will have a new Commander-in-Chief as President Donald J. Trump is sworn into office. On November 20, 2016, 200 guests gathered at the U.S. Supreme Court for the Sixth Annual Lloyd N. Cutler Lecture, where John B. Bellinger, III, former Legal Adviser to the Department of State during the George W. Bush administration, offered advice for the incoming President.

“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. And if there’s one message I have tonight, that is it,” declared Bellinger, now a partner in the international and national security law practices of Arnold & Porter in Washington, DC, and Adjunct Senior Fellow in International and National Security Law at the Council on Foreign Relations.

The lecture was held by Salzburg Global Seminar under the auspices of the Lloyd N. Cutler Center for the Rule of Law. The lecture series was started by Salzburg Global Seminar in 2009 to honor the life and work of Lloyd N. Cutler, former White House Counsel to Presidents Carter and Clinton and long-time Chair of Salzburg Global’s Board of Directors.

Download the full transcript

Bellinger’s timely lecture was titled “Law and the Use of Force: Challenges for the Next President” and was followed by a question and answer session moderated by David Rennie, Washington Bureau Chief at The Economist. This year’s lecture was hosted by Associate Justice and Salzburg Global Faculty member, Anthony Kennedy who delivered the opening remarks. In his speech, Justice Kennedy reflected on Salzburg Global’s history and importance in rebuilding post-war Europe intellectual capacity by spreading American values of democracy and the rule of law. Justice Kennedy also congratulated Salzburg Global for its ability to nurture young talents and to give them the opportunity to engage in political and civic discourse. 

Reflecting on the US' involvement in military conflicts over the past 15 years, Bellinger provided a thorough analysis of domestic and international legal rules governing the use of military force by the executive branch. Bellinger particularly reflected on the Bush and Obama presidencies and looked ahead to the legal challenges for the next President.

As Bellinger explained, while Article II of The Constitution provides the President with broad but not unlimited powers as Commander-in-Chief to use military force for self-defense purposes or national security issues, most Presidents prefer to also seek congressional approval through the so-called "Authorization to Use Military Force" (AUMF). The President should also adhere to the War Powers Resolution of 1973, which requires the President to report the use of US armed forces and to terminate their deployment within 60 days unless authorized differently by Congress. However, due to recent political gridlock, the last AUMF passed by Congress dates back to October 2002 when Congress authorized military intervention in Iraq. In order to gain authorization for the use of force against groups loosely associated to Al-Qaeda that did not exist at the time of 9/11 (such as Al-Shabaab in Somalia, Boko Haram in Nigeria and ISIS in Syria and Iraq), recent administrations have resorted to stretching an AUMF passed right after the attacks of 2001.

International laws can be even more challenging than domestic rules: The United Nations (UN) Charter, and the Geneva Conventions, both adopted after World War II, were intended to apply to conflicts between nation states. The UN Charter does not allow the use of force against terrorists in another country unless authorized by the UN Security Council or the state itself consents. Therefore, the US’ use of force against terrorist suspects in countries that have not consented to such interventions, like the raid in Pakistan that killed Osama Bin-Laden, is very controversial; legal approval from Congress does not necessarily stop the US’ actions from being in violation of international law. As Bellinger remarked, domestic and international laws are outdated and need to be updated to better reflect the realities of modern warfare against non-state actors.  

Given his isolationist, non-interventionist remarks during the recent Presidential campaign, Bellinger expects that Trump will be less likely to order the use of force than President Obama has (or Hillary Clinton would have), Bellinger believes Trump could still be confronted with a situation that would require intervention in Syria or elsewhere to prevent a humanitarian catastrophe. 

Bellinger presented the following recommendation for the President-elect: From a domestic law perspective and with respect to the conflicts with al-Qaeda and ISIS, President Trump should push Congress to enact a new authorization in early 2017 that would revise and update the 2001 AUMF and legally approve the use of force against ISIS. President Trump should also ask Congress to revise and update the War Powers Resolution that has been increasingly ignored by recent Presidents. Bellinger also advised the new administration to refrain from ignoring international law. If the US violates international law, it might empower other countries such as Russia and China to do the same and alienate international allies in Europe, Canada and Australia. The Trump administration should work together with other countries to update the international legal framework regarding the use of force and develop new rules for the detention of non-state actors. 

Bellinger concluded his lecture with the following words: “We must hope that President Trump will select advisers as wise as Lloyd Cutler to give him sound legal advice - and that he will listen to their advice.”

In the Q&A section of the evening, David Rennie and John Bellinger discussed the lack of interest of the US Congress and even the American people to question the legitimacy of the use of force under international law compared to other countries, for example in Europe. The conversation, which also included questions from the audience, touched upon the legal framework for preventing or executing cyberattacks, the use of torture and the legitimacy of civilian casualties.

The lecture concluded with closing remarks delivered by Stephen Salyer, President of the Salzburg Global Seminar. 

For further analysis of the lecture, read David Rennie's Lexington column in the Economist: Donald Trump and the dark side

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