SEPTEMBER 10, 2015
The dust has now settled after William C. Bradford, a newly hired West Point law professor, made headlines for a controversial essay published in the little-read student-run National Security Law Journal. The Guardian’s Spencer Ackerman reported that Bradford was denied tenure a decade ago from the Indiana University School of Law for wildly misrepresenting his military service and that, in the law review article in question, he seems to have misrepresented his affiliation with the National Defense University. These offenses made his employment by a military academy whose honor code is central to its mission untenable. It was therefore not surprising when Bradford resigned.
So that’s the end of it, right? We can all just forget about this sorry episode? Wrong.
While I wholeheartedly reject not only Bradford’s outrageous argument but most of the premises from which it flows, I rise to a qualified defense of the article on a number of fronts and I think we owe it to ourselves to keep talking about it.
Bradford’s article argues that a handful of prominent American legal scholars are a “fifth column” lending support to the Islamist enemies of the United States and should therefore be targeted for death as combatants in the war on terrorism. The argument is absurd on both first glance and deeper reading. It is nonetheless a highly valuable contribution to the national security debate.
First, there’s great value in outrageous but well-argued polemic. By pushing an argument to its logical extreme, Bradford has invited a vigorous pushback from the scholarly community. Second, debating the article would be especially valuable for cadets and more senior officers alike, many of whom share some of Bradford’s premises, even if they might never come to his extreme conclusions. Third, Bradford’s argument presents an opportunity to examine some actual U.S. policies.
Following the firestorm, the article was repudiated by the incoming editorial board of the National Security Law Journal in which it was published as an “egregious breach of professional decorum” and excoriated in its pages as “bonkers” by George Mason law professor Jeremy Rabkin, who calls its central charge that prominent scholars are intentionally acting on behalf of Islamists “too preposterous for anyone to take seriously.”
Interestingly, Bradford and Rabkin were among the signatories of a March 2003 public letter calling attention to the legal prohibition against Saddam Hussein’s government’s use of human shields to protect its military forces from impending attack from the U.S.-led coalition. Both are conservative legal scholars inclined to sympathize with the plight of a United States government hamstrung by international norms in fighting enemies who do not observe them. They simply reach different conclusions on where to draw the line.
Indeed, Rabkin and the student editors are not indisputably right. While I find the notion that the scholars should be murdered because their arguments happen to aid the jihadists risible (to put it mildly) there is certainly precedent for arguing that scholars have some responsibilities as citizens to consider how their arguments impact their country’s war efforts. There’s room for debate as to whether that obligation still exists and, if so, where the line is drawn and how the interests of the state are balanced with freedom of speech.
Bradford repeatedly feeds into a variation of the sentiment, popular in military circles since the Vietnam era, that America is fighting a “limited war” with one hand tied behind its back while its enemy fights a “total war” with no constraints. His central premise is that the Islamist foe, notably the Islamic State and al-Qaeda, are fighting a “fourth generation war” on the field of battle but nonetheless “will prevail if they psychologically exhaust the West, inveigle its peoples into doubting the utility and morality of the war, make the price of victory exceed the costs, and compel its peoples to pressure their governments to abandon the fight.” In particular, Bradford contends, the Islamists are exploiting Western fealty to the rule of law and, especially, a law of armed conflict (LOAC) that evolved over centuries of fighting like-minded foes.
Building from this foundation — which is itself perfectly reasonable — Bradford argues in exhausting detail (the essay is 193 pages long and contains 774 footnotes) that prominent Western legal scholars are abetting this strategy by harping on violations of these rules while giving little attention to the fact that the enemy is not playing by them at all.
He notes that respect for the rule of law has been a core belief of Americans, especially the elites, going back to the Declaration of Independence and is central to its foreign policy. Therefore, “for America to be chastised for violations of law, or worse, branded a rogue and anomic regime, threatens the fundament of U.S. legitimacy.” Thus, mere allegations of LOAC violations — and especially charges by well-respected legal scholars that their country is fighting an illegal war — “directly assault American political will.” Further, Bradford argues, this is not an indirect effect but central to the enemy’s strategy:
This is precisely why Islamist strategists have orchestrated a two-dimensioned operational plan consisting of an information element — a PSYOP campaign — supported by a military element — the unlawful use of armed force — to convince Americans that the United States is an evil regime that elected to fight an illegal war against Islam, that the United States systematically commits violations of law in prosecuting this war, that U.S. crimes erode national security and destroy core values, and that the only way the United States can restore its moral virtue, recommit to the rule of law, and protect itself, is to withdraw in defeat.
Bradford here evokes the “stabbed in the back” mythos popularized by Colonel Harry Summers and other military apologists for the loss of the Vietnam War:
The most transparent example of the power of elite institutions to shape popular opinion as to the legitimacy of U.S. participation in wars is the traditional media. During the Vietnam War, despite an unbroken series of U.S. battlefield victories, the media first surrendered itself over to a foreign enemy for use as a psychological weapon against Americans, not only expressing criticism of U.S. purpose and conduct but adopting an ”antagonistic attitude toward everything America was and represented” and ”spinning” U.S. military success to convince Americans that they were losing, and should quit, the war. Subordinating reality to a “narrative,” journalistic alchemists converted victory into defeat simply by pronouncing it; Americans, sitting rapt at their televisions but lacking facts to gainsay the media version of events and as yet unaccustomed to doubting media personalities, accepted the verdict. When CBS Evening News anchor Walter Cronkite misrepresented the failed North Vietnamese Tet Offensive of January 1968 — an operational win for the U.S. — as a Communist victory,” the imprimatur of “the most trusted man in America” made it so.
Bradford’s rhetoric here is almost comically over-the-top. But his version of events has strong support in both military and national security circles.
From here, Bradford argues that “Islamists have identified strongpoints and force multipliers” to help them “attrit American political will” within “an interconnected government-media-academic complex” of “public officials, media, and academics who mould mass opinion on legal and security issues.” Bradford asserts that “Whereas these institutions and intellectuals once embraced values consonant with the society in which they root, over the past half-century they have sharply diverged.” Again, while this argument is strained, its basic premise is widely shared in military and conservative foreign policy circles.
Nor is Bradford mistaken in arguing that legal scholars at America’s most prestigious institutions are generally “regarded as neutral arbiters of truth dedicated to the pursuit of knowledge and above the American political and cultural fray.” While it greatly overstates things to say that “their pronouncements on all manner of subjects, including U.S. conduct in the war with Islamism, are received by the lay public as the essence of wisdom itself,” they doubtless shape public opinion substantially. Indeed, Bradford is likely right that those of us who question the way the United States has fought the war on terror have helped to undermine domestic support for the war effort — questioning everything from our use of torture and drones to the excesses of Abu Graib and Guantanamo — and that this helps the Islamists. In my judgment, that’s the price of living in a democracy. Bradford is simultaneously correct that the LOAC hampers our fight against an enemy that doesn’t abide by it and wrong in concluding that we should therefore abandon it.
Jumping from this premise, Bradford identifies “about forty contemptuously critical LOACA scholars” who have stood out in this regard “by proposing that LOAC restrictions on Islamists be waived to provide unilateral advantage, that Western states face more rigorous compliance standards, and that captured Islamist militants be restored to the battlefield, effectively tilt the battlefield against U.S. forces, contribute to timorousness and lethargy in U.S. military commanders, constrain U.S. military power, enhance the danger to U.S. troops, and potentiate the cognitive effects of Islamist military operations.” Furthermore, “rather than make good-faith legal arguments as to what LOAC does, does not, should, and should not require, offers up politicized arguments — against evidence and reason — that the Islamist jihad is a reaction to valid grievances against U.S. foreign policy.” Thus, Bradford contends, they are actively helping the enemy and thus should be targeted accordingly.
While the implication that we should execute these critics strikes me as nuts, it’s not that far down a slippery slope from actual U.S. policy during the war on terror. In the aftermath of the 9/11 attacks, Congress passed into law the USA PATRIOT Act, greatly increasing the discretion of the president and power of the agencies under him to go after those suspected of ties to terrorist organizations, both at home and abroad, while substantially curtailing judicial authority to check excesses.
Most notably, the Bush administration claimed the right to declare American citizens suspected of ties to al-Qaeda or the Taliban “illegal enemy combatants” and deny them the most fundamental civil liberties, including imprisoning them without trial or access to an attorney. Yaser Esam Hamdi was detained for almost three years without charge, until the Supreme Court ruled that he was entitled to due process. He continued to be held for several months after that ruling and only released on the condition that he renounce his citizenship, agree not to sue the U.S. government for its treatment of him, and agree to be deported to Saudi Arabia.
Hamdi, at least, was actually an enemy combatant, captured fighting against American soldiers in Afghanistan. Jose Padilla was arrested at a Chicago airport on suspicion of plotting a radiological bomb attack, held without habeus corpus as a material witness, and then declared an enemy combatant and held in a U.S. military prison despite having no military affiliation. Specifically, the president found “that Padilla was an enemy combatant who (1) was ‘closely associated with al Qaeda, an international terrorist organization with which the United States is at war’; (2) had engaged in ’war-like acts, including conduct in preparation for acts of international terrorism’ against the United States; (3) had intelligence that could assist the United States to ward off future terrorist attacks; and (4) was a continuing threat to United States security.”
Despite several judicial rulings that this exceeded the president’s constitutional authority (the U.S. Supreme Court declined to rule on this for technical reasons), he was denied access to counsel for two years. He was ultimately convicted on charges tangential to those on which he was held, namely that he had “participated in a South Florida-based al-Qaeda support cell that in the ’90s began to send money and people to wage holy war in Bosnia, Chechnya, Kosovo and Somalia.”
More than a decade after the 9/11 attacks, Bush’s successor, a former constitutional law professor at an elite university, authorized a fatal strike against Anwar al-Awlaki, a U.S. citizen “who had never been indicted by the U.S. government nor charged with any crimes,” for his role as an al-Qaeda recruiter and jihadist motivational speaker. (I should add that, while I have some misgivings about the rationale used and its potential implications, I support the specific decision in the killing al-Awlaki for reasons outlined elsewhere.)
And yet as Freedom House’s Arch Puddington and Thomas O. Melia note in their assessment of the impact on civil liberties of the war on terror,
It is important to point out that the setbacks to individual rights during the war on terrorism pose less severe threats to American liberty than those that arose during the major conflicts of the past. The United States has not declared a wholesale suspension of habeas corpus rights, outlawed political dissent, placed tens of thousands of nonwhite residents in domestic detention centers, ordered security services to conduct campaigns of surveillance against war critics, or blacklisted entertainers and academics who differed with the policies of the federal government. Nor has the government taken sweeping action against the press, despite article after article that revealed sensitive information about counterterrorism initiatives.
It’s noteworthy that Melia is now a Deputy Assistant Secretary of State in the Bureau of Democracy, Human Rights and Labor.
Thankfully, most of us agree that killing thinkers for the crime of pointing out the legal and moral flaws in U.S. war policy goes way beyond the pale. But most also accept that the exigencies of war sometimes require changes to business as usual, including some restrictions on otherwise fundamental rights and exceptions to otherwise sacrosanct moral principles. Bradford, presumably unintentionally, points to the absurd extreme. Where the actual line between the two is drawn, however, is subject to continuous debate. Bradford’s essay can help drive it.
James Joyner, a former Army officer and combat veteran, is an associate professor of strategic studies at the Marine Corps Command and Staff College and the publisher of OutsideTheBeltway.com. These views are his own.
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