A Welcome Step Toward Clarity and Transparency by the New State Department Legal Advisor, but Speeches Aren’t Enough
Last Friday, the new State Department Legal Adviser, Brian Egan, gave a speech on “International Law, Legal Diplomacy, and the Counter-ISIL Campaign” at the Annual Meeting of the American Society of International Law (ASIL). Egan’s address is the latest in a series of more than half a dozen national security speeches that have provided insight into the administration’s legal views and policies governing U.S. counterterrorism operations.
In opening his remarks, Egan noted that he was “following in the footsteps of others who have gone to some lengths in recent years to explain our government’s positions on key aspects of the law of armed conflict.” These “others” include Egan’s predecessor, Harold Hongju Koh, and President Obama himself.
As law professor Ashley Deeks noted over at Lawfare, much of his speech was not surprising or new. Nevertheless, the administration should be commended for going to such lengths to clarify its legal views. And as Marty Lederman discussed over at Just Security, Egan’s speech was perhaps the clearest articulation to date of the United States’ international legal basis for using force against ISIL.
One of the high points of the speech was Egan’s emphasis on U.S. compliance with the law of armed conflict (LOAC). Egan laid out four compelling reasons why the United States complies with LOAC in the campaign against ISIL and in all other armed conflicts: “because it is the international legal obligation of the United States; because we have a proud history of standing for the rule of law; because it is essential to building and maintaining our international coalition; because it enhances rather than compromises our military effectiveness; and because it is the right thing to do.” While perhaps an unremarkable statement if it had been made in 2015, this unequivocal support for compliance with LOAC is a welcome counterbalance to recent campaign rhetoric, including the suggestion that the U.S. should jettison the Geneva Conventions.
However, one can’t help but also notice that repeatedly going to such lengths to clarify the administration’s views would be less necessary if the administration disclosed more of its legal and policy analysis, including Office of Legal Counsel memos related to its use of force abroad. Along these lines, the administration recently announced its intention to release an unclassified redacted version of the full Presidential Policy Guidance (PPG) governing use of force outside areas of active hostilities and drone strike casualty statistics from 2009 onward. These are important developments for which the administration should also be commended, but the transparency value of the upcoming releases depends on what is actually in the documents and the extent of the government’s redactions.
Perhaps more importantly, all its efforts to clarify its views on the key legal and policy boundaries are at risk if those boundaries are not formalized before Obama leaves office. This administration rightly disavowed the “Global War on Terror” moniker and has sought to explain who we are at war with, where, and on what legal basis. But these boundaries are set forth in an array of scattered speeches (here, here, here, here, here, here, and here for example), court filings, Congressional testimony, White House factsheets, and a draft Authorization to Use Force Against ISIL.
The administration would be wise to synthesize the contours of the current armed conflicts into a single official executive document before passing these wars on to President Obama’s successor—particularly in light of the inflammatory rhetoric that has dominated the campaign trail.