Antonia Chayes on borderless wars and the battlefields of tomorrow

Conversations: An Interview with Antonia Chayes

Nov. 2, 20159781107521506

In 2011, Nasser Al-Awlaki, a terrorist on the U.S. “kill list” in Yemen, was targeted by the CIA. A week later, a military strike killed his son. The following year, the U.S. Ambassador to Pakistan resigned, undermined by CIA-conducted drone strikes of which he had no knowledge or control. The demands of the new, borderless “gray area” conflict have cast civilians and military into unaccustomed roles with inadequate legal underpinning. As the Department of Homeland Security defends against cyber threats and civilian contractors work in paramilitary roles abroad, the legal boundaries of war demand to be outlined.

In her latest book, Borderless Wars: Civil-Military Disorder and Legal Uncertainty (2015), former Under Secretary of the Air Force Antonia Chayes examines these new “gray areas” in counterinsurgency, counter-terrorism, and cyber warfare. Recently, The Bulletin sat down with Professor Chayes to discuss her new book and some of the legal challenges facing American foreign policy.

Columbia Journal of Transnational Law Bulletin: You teach courses on international law and civil-military relations, and your new book focuses on three areas of modern conflict – counterinsurgency, counterterrorism, and cyber. As you approached this book, what did you think tied these three case studies together from a legal standpoint, and why did you choose to focus on them?

Antonia Chayes: Nothing in the law ties them together – why I chose them was because they represented three current types of warfare that we’re facing, what I call “grey areas.” And it seemed to me that they all raised interesting, but different, civil-military issues, and the legal underpinnings were important for each of them. But the legal underpinnings were also different. So, for example, you have a legal vacuum when it comes to cyber conflict, and a different type of legal vacuum in counterinsurgency.

And there is also some commonality among the issues. With the issue of drones, you have a stretch of the laws of armed conflict, and in cyberwarfare you have the same thing, although in that case it’s more of an imagined stretch because the Law of Armed Conflict legal rationale hasn’t really been used yet, at least not publicly. Finally, from an international law standpoint, there is very little international regulation of either cyber activities or drone warfare.

Bulletin: In the counterinsurgency area, you talk about how counterinsurgency itself does not transgress international law, provided that counterinsurgency operations comport with the laws of armed conflict and the laws of occupation. But you talk about some of the legal challenges domestically, particularly coordinating among various actors. Can you talk briefly about how Presidential administrations have sought to organize the bureaucracy to conduct counterinsurgency operations, what legal tools have they used, and how might they be more effective?

AC: Mostly they’ve used rhetoric. But you have an institution that is designed for this purpose, and that’s the National Security Council. And as it turns out, the conversations in the NSC and the Deputies Meetings have not turned out to be very effective. We did have, under the Clinton Administration, the Presidential Decision Directive 56, which required simulations and rehearsals of how civilian and military actors would work together in the case of contingency planning. It came as an outgrowth of the disaster in Somalia, and wasn’t fully promulgated until 1997. Elements of it were tried out in Haiti 1994, but when it came to Bosnia, it was never fully utilized.

The problem is that Executive Orders come and Executive Orders go. National Security Presidential Directive 44, under the Bush Administration, was very weak – it didn’t follow the Clinton model of intensive simulations, joint planning, contingency planning, that PDD-56 did. And its been equally weak under President Obama.

Bulletin: In your book, you suggest what you call a “saturation approach” to improving civil-military coordination and improving outcomes in future counterinsurgency operations. Obviously, counterinsurgency has fallen out of favor in recent years in some circles, but if the United States were to pursue it as a strategy in a future conflict, how can they conduct more effective planning so that a “whole of government” approach is not just a PR mechanism?

AC: Well it really needs to be fully-funded, and there needs to be a requirement of joint, i.e. civil-military, training. I would most like to see something similar to the Goldwater-Nichols Act of 1996. Legislation is hard to pass and hard to repeal, whereas Executive Orders come and go, as I said before. So it really needs to start with legislation.

When I made these suggestions in my book for better coordination among civilian and military actors, I put them in the counterinsurgency section, but they really are applicable to any kind of military intervention that we undertake. What’s interesting about counterinsurgency is that it sort of revives every generation or so. There was huge discussion, under different names, in the Vietnam War, and then it didn’t work. We lost the Vietnam War. But even during that war, some aspects of counterinsurgency operations had started to become more effective toward the war’s end, although of course they didn’t have a government that was trusted by the people.

Even in Afghanistan, the Provincial Reconstruction Teams were, at the local level, an effective device for civil-military cooperation in many cases. They were beginning to be standardized with best practices coming together. But it takes a long time, and they weren’t there long enough to have a lasting impact. That’s always the problem – you see some successful, small experiments, but then they never have the opportunity to scale up.

Bulletin: In your second section, you talk about targeted killing, which has been extremely controversial from an international law standpoint. From the Barron OLC Memorandum and President Obama’s past remarks, it seems that the US takes the position that it is in a global, non-international armed conflict against Al Qaeda, the Taliban and associated forces, and the rationale seems to be one of self-defense. From an international law perspective, do you think the conditions for self-defense, including imminence, are actually met, particularly in places like Yemen or Somalia?

AC: I think the case of imminence is very hard to make when it comes to Yemen and Somalia. Yes, the groups there are part of a terrorist network, and that’s what the US is trying to link together, essentially saying that if there is any risk in any part of the world, that risk ultimately comes under the umbrella of self-defense. So whether its ISIS in Syria, or Al-Shabab in Somalia, its all part of the same thing. But factually that becomes very difficult. Threats may be imminent for the Government of Yemen in certain cases, for example, but not for the United States.

So what other arguments could be made under international law that aren’t just laughable? The argument that was made by Samantha Power in a very short letter – not followed, as far as I could find out, by any legal opinion – was that in the case of Syria, this was collective self-defense. The argument was that the Iraqis had asked for strikes against Syria because threats to Iraq were emanating from Syria. That argument, when made in different circumstances in the Nicaragua case, was ultimately not persuasive, although the facts were different. So it’s entirely possible that the collective self-defense arguments might stand up in this case.

Would they also apply to territories in Pakistan, from which attacks are being directed against troops in Afghanistan? I think the argument can be made that if the attacks on American troops who were lawfully in Afghanistan are emanating from an adjacent territory, you could justify the use of force across the border, particularly if you had the permission of the Pakistani government. Without their permission, entering sovereign territory is much more questionable.

There is a doctrine of hot pursuit, but it’s a maritime doctrine and nobody really has used it to justify cross-border military operations during the conflict against Al Qaeda along the Pakistan-Afghanistan border. But it is certainly as plausible as any other.

Bulletin: One of the more objectionable practices within the targeted killing program has been so-called “signature strikes.” Why are these so problematic from both an International Humanitarian Law and policy standpoint?

AC: The confusion between a wedding party and a group of young men who are gathering for terrorist purposes – and the opportunity for abuse by tribal enemies – is such that the benefits of attacking unnamed, unknown people cannot outweigh the consequences. And the most recent example, although it wasn’t a drone strike, is hitting the MSF [Médecins Sans Frontières] hospital in Kunduz.

There has to be enormous care taken with targeting. Terrorists proliferate, so you eliminate one leader and another is quickly developed. The importance of hitting any particular target is likely much less than we think it is.

Bulletin: Shifting to the domestic legal issues that are implicated by US counterterrorism policy, you mention in your book that the US is shifting between a law enforcement model, where they are capturing and trying terrorists in federal court, and a war model, where the targeted killing program comes into play. Is this inconsistency ultimately damaging for rule of law within this country?

AC: I’m not troubled by the fact that we’re using both, if there were international legal justification. I think to the extent that we can capture and try terrorists, the law enforcement model is very useful. The question is what do you do in situations where there is kinetic action going on – like Iraq or Afghanistan – and the person can’t be captured. It seems to me, where there is clearly a war going on, treating a terrorist as an enemy combatant is perfectly okay.

Where I have a problem is a situation like the Anwar al-Awlaki case. You have a US citizen, who I think we can all agree was a bad actor, and was involved in one of the would-be airline bombers. But I think targeted killing in that context, in Yemen, especially a US citizen, was much more legally questionable.

The inconsistency of treatment – killing some terrorists and capturing and arresting others – is worth noting, but it doesn’t compare in my mind to the signature strikes in terms of being legally questionable.

Bulletin: You mention in your book some of the difficulties, from a legal standpoint, with having a civilian agency (the CIA) involved in military activities. Can you talk a bit more about that – is this a challenge of Congressional oversight, or are there other legal difficulties with the CIA being involved in the drone program?

AC: I think the oversight by Congress has been pretty weak on both sides. There is a Uniform Code of Military Justice, and there is certainly the perception that the military is more legally compliant than the CIA. I have a problem with non-military entities exercising a military function, and bombing is a military function. Interestingly, what seems to have happened is that CIA’s own intelligence operations has been weakened – they could take a great deal more attention than they’ve been given. If they simply become another military service, there won’t be enough money for them to do the traditional intelligence gathering activities. And you can see this because the Defense Intelligence Agency (DIA) has been asked to take over a lot more of the intelligence-gathering function in this time when so many of the resources at CIA were expended on essentially military functions.

Bulletin: Your last area of focus in the book is cybersecurity and cyberwarfare, and you open with a story on a large-scale cyber attack in Estonia in 2007. What made that attack so disruptive?

AC: Estonia was highly-wired. All of the banking was done online, many of the major functions of government relied on the internet, and also the country’s infrastructure was controlled online – and everything was taken down by DDOS and by phishing. So they were just inundated and all their computers crashed, which happened several times over several weeks. Nobody was hurt – people were more than inconvenienced and probably suffered a good deal – but it was hardly the equivalent of a kinetic, military attack. The response was very ad hoc, and it just so happened that there were some experts from Finland and elsewhere that were nearby and they all put their heads together and corrected what the vulnerabilities were, so they were able to come back online without any significant damage.

Bulletin: This raises the question of when a cyberattack rises to the threshold of an armed attack, because presumably the easy case is where a cyber attack leads to an immediate loss of life, or where a cyberattack causes the destruction of a nuclear reactor or something of that sort. How do you think that international lawyers thus far have approached this problem, and are we any closer to figuring out where one would draw the line between treating a cyber attack as an act of war versus as an economic crime?

AC: I think we’ve been operating by analogy, and I think in this case, the armed conflict analogies are very stretched, just as they are with using drones in some of the geographic areas where the United States is operating. You ask, well, is there imminence and does Article 51 of the UN Charter apply? And this becomes a big question when the effects of a cyberattack may be delayed. One example of this are the separate intrusions and theft of all the information about military personnel, and the Office of Personnel Management attacks, which took place recently. If nothing has been done with this information, what law would apply? Maybe the information could be used aggressively in the future, and maybe it is just straight espionage. But then there is no basis to act until some clarification occurs, and even then, the response is more political than legal.

The attackers (presumably the Chinese) may just want to know what the makeup of the armed forces is – who are these people, what is their education – so they can gage what kind of military service we have. On the other hand, maybe an enemy would want to do something destructive with it in a battlefield context. It’s hard to predict when you would actually know the answer to this question, and that is the dilemma which makes it so hard to know which law to apply.

And that’s why I suggest that we move towards a more cooperative stance, especially with potential adversaries, to establish better rules in this sphere. The negotiations with the Chinese, and the bilateral agreement that they’re striving towards, is one where there is an agreement not to take down infrastructure, but to leave espionage in place. The US is clearly concerned about potential attacks against infrastructure, since this sort of attack would be very serious.

Bulletin: You make a very strong push for increased international cooperation, and you use the example of nuclear arms negotiations to talk about how these take place over a very long period of time, and we may be just at the beginning right now of a new arms control regime for cyber. But the political climate seems much different now, and it seems to be more difficult to get treaties ratified domestically. What form do you see international cooperation around cyber taking over the next few years, and would the US be better suited to go away from a more formal treaty given the domestic challenges around ratification?

AC: I think if we could start with a code of conduct that referred to various other treaties already in force, that would be a good start. And if we could go one step further and use the model of the Proliferation Security Initiative (PSI), which involves a pledge to behave in a certain way, that is on its way to becoming a binding agreement. Of course, the President can engage in negotiations and conclude these kinds of agreements as Executive Agreements, which are binding and do not require Congressional authorization. So, depending on how acute the emergency seems to be and depending on domestic politics, the President might strive for a code of conduct with other states. This could slowly be built up into a bigger international instrument. I think the talks with China currently, from what I’ve read, are focused on discussions about a pledge, dealing with the narrow area of infrastructure, while leaving espionage untouched.

Bulletin: Finally, you raise a really interesting point the President’s ability to respond to a cyber attack and the applicability of the Steel Seizure Case, since such a huge portion of our critical infrastructure is privately owned and the President would in effect be seizing private property. Do you think the cyber attack would be a stronger case, since it was an attack in the country itself, as opposed to seizing steel mills to keep production going for the war effort?

AC: Well, the way that case was decided was that Congress has provided an alternative in the labor laws, so there was a procedure in place for restoring production capacity at the steel mills, and the President had violated that. Here, there isn’t an alternative that has been provided by Congress. It might be a stronger case – the criticality of the whole infrastructure would be more obvious for national defense than the capacity of the Steel Mills in that case. But I wouldn’t want to be the Legal Adviser saying that the President could seize the private infrastructure because the precedent looms so large from Steel Seizure.

What I don’t understand is why industry is so unwilling to even permit the Government to set standards in legislation, including inspections of what their protective devices are to make sure they are totally up to date. It doesn’t help that the Government’s own cyber operations have been so vulnerable in the OPM and Defense Department attacks. In other words, if the Government can’t even set a good example for protecting against intrusions, what makes them think that they can teach the corporations something which they could do better themselves.

Antonia Handler Chayes is Professor of Practice of International Politics and Law at the Fletcher School of Law and Diplomacy at Tufts University. Her interests encompass international conflict, international law, and security. Her government experience is extensive, having served as Assistant and later Under Secretary of the U.S. Air Force, where she was awarded the Distinguished Service Medal.

She has served on several Federal Commissions, including the Vice President’s White House Aviation Safety and Security Commission, and the Commission on Roles and Missions of the U.S. States Armed Forces. As Board member of United Technologies Corporation for 21 years, she chaired its Public Issues Review Committee, and served on its Executive Committee until retiring in 2002. She also practiced law in a Boston law firm, and served as mediator at JAMS/Endispute. She is a member of the Council on Foreign Relations; serves as a consultant to the Office of Compliance, Adviser, Ombudsman of IFC and MIGA of the World Bank. She was elected to the Executive Council of the American Society of International Law in 2009.

She is the co-author (with her late husband Abram Chayes) of The New Sovereignty: Compliance with International Regulating Agreements (1996) and Imagine Coexistence: Restoring Humanity After Violent Conflict (2003, with Martha Minow).

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