The Rhetoric of Retaliation

by

| Sep 17, 2021

retaliation AH-64D Apache

The language we use to justify and describe legal constraints on personal conduct or grants of legal authority to our government is never totally free of bias, ambiguity, flawed premises, or unproveable assumptions. How we fix, manipulate, or comport ourselves to these constraints and grants of power is almost always context-dependent. This essay explores how current events can reveal legal clichés in action: the rhetoric of retaliation as an obscurant that both complicates and confuses efforts to justify our use of armed force in legal terms.

“Make Them Pay”

On Aug. 26, 2021, ISIS-Khorosan executed a suicide bombing attack at the gate to Kabul Airport killing thirteen U.S. servicemembers and more than 160 Afghans just days before American troops departed after two decades. Later that day, President Biden announced that those responsible would pay a price for that attack. Though described as “mournful and restrained,” and short on details about when, where, or how the United States would respond to the attack, the President’s remarks were quite specific about one thing: “We will not forgive. We will not forget. We will hunt you down and make you pay.” Three days later, after the promised strike occurred, Biden returned to this message: “I said we would go after the group responsible for the attack on our troops and innocent civilians in Kabul, and we have. This strike was not the last. We will continue to hunt down any person involved in that heinous attack and make them pay.”

Stark warnings like this are important messages for valuable domestic political reasons.  They express the administration’s “mood,” aiming to speak on behalf of all Americans and attempting to portray a sense of nonpartisan unification. “We’re outraged as well as heartbroken,” the President said. Such statements begin to satisfy a natural urge to express righteous indignation, as well as our claim to hold accountable those that harmed us. This “just desserts” rationale is familiar to students and practitioners of criminal law; it also undeniably influences political decision-making about the use of military force across party lines. Perhaps no clearer instance of impromptu messaging and its instinctive motive in recent American political rhetoric was President George W. Bush’s “bullhorn speech” from a pile of rubble at Ground Zero on Sept. 14, 2001—“the people who knocked these buildings down will hear all of us soon!”

But these warnings also fulfill other—sometimes more subtle and complicated—messaging objectives. They often outline legal justifications for the use of armed force against enemies abroad. “Vowing to avenge,” or “retaliation,” whatever its moral and political appeal, is increasingly used to justify a pending attack or describe actions already taken. President Trump used similar rhetoric when justifying the air strike in Iraq that killed Iranian Quds Force Commander, General Soleimani, in early 2020. He suggested that Soleimani deserved to be killed as leader of an organization that had been responsible for past attacks (planning, funding, training, providing arms to) against U.S. forces in Iraq and Afghanistan.

In the immediate wake of that strike, however, other arguments were offered to legally justify the strike. Both the Secretary of State, Mike Pompeo, and the Chairman of the Joint Chiefs of Staff, General Mark Milley, advanced the classic and legitimate “self-defense” theory. They alleged that Soleimani was a terrorist posing an imminent threat to U.S. forces and our interests in Iraq. The official U.S. notification to the United Nations justified the strike as inherent self-defense, permissible under the U.N. Charter’s Article 51. Trump’s later rhetoric reinforced this message. Soleimani, he insisted, was “plotting imminent and sinister attacks on American diplomats and military personnel” and “we caught him in the act and terminated him.”

From a domestic legal authority perspective, Secretary Pompeo, Defense Secretary Mark Esper, General Milley, and Trump’s National Security Advisor, Robert O’Brien, also defended the strike as within the authority Congress granted the President under the 2002 Authorization for the Use of Force (AUMF) in Iraq. The AUMF permitted in advance such military engagements (regardless of whether the target was an agent of Iraq) without requiring the president to first notify, consult with, or seek approval from Congress. Secretary Esper further clouded the legal messaging campaign when he argued that the strike was meant to achieve another classic rationale familiar to criminal law: “this strike was aimed at deterring future Iranian attack plans” that included an “attack on American diplomats and service members in Iraq and throughout the region.” In his speech at the Hoover Institution in mid-January, Secretary Pompeo further refined the general, strategic, deterrence argument, ignoring any hint that self-defense (or retribution) may have justified the strike.

This deterrence argument makes sense—just not legal sense (except, possibly, in a jus in bello analysis described below). It is understandable as a pragmatic rationale for the strike, but only from three points of view. First, politically, or for influencing domestic public opinion; second, to justify a president’s introduction of armed force without prior Congressional authorization as a stand-alone Article II exercise of commander-in-chief power; and third, to influence the tactical military decision-making of the enemy. But like retaliation or retribution, deterrence is not a valid legal basis for the use of force under international law in a “going to war” sense (jus ad bellum); it may be valid in a “this is how we will fight in this war” sense (jus in bello). Retaliation as such, however, is invalid in any sense involving the law of war.

We should distinguish between retaliation and other, legitimate legal justifications (like self-defense) in both a jus ad bellum and jus in bello context. For instance, Biden’s warning after the August 26th attack in Kabul was distinct from his comments of just ten days earlier:

We conduct effective counterterrorism missions against terrorist groups in multiple countries where we don’t have permanent military presence . . . . If necessary, we’ll do the same in Afghanistan. We’ve developed counterterrorism over-the-horizon capability that will allow us to keep our eyes firmly fixed on the direct threats to the United States in the region, and act quickly and decisively if needed.

His comments bring into relief the problem created when political and military leaders deviate from legitimate legal reasons for the decision to end lives using military force. In short, unless explicit precautions are used, the rhetoric of retaliation obscures and confuses legitimate rationales for the employment of military force against a target. If political rhetoric praises, and military forces commend to our allies and partners, the “rule of law,” then only legitimate reasons should be employed to explain and justify our use of force. Our rhetoric should be no different from the internationally recognized legal justifications.

Jus in Bello

 Defense of a drone strike, or any other planned attack on a hostile combatant is usually not difficult under international law, rules, and customs related to the use of armed force. Considerations of proportionality, distinction, precaution, unnecessary suffering (and the even more ambiguously defined “honor”) certainly limit when, where, how, and whom to strike. But the why—the reason for the strike—is simply one of “military necessity.” The U.S. military defines this LOAC principle as a justification “for the use of all measures required to defeat the enemy as quickly and efficiently as possible that are not prohibited by the law of armed conflict.” Importantly, military convenience or military efficiency are not synonyms for “necessity.” Further, it is not a question of whether a target is itself (or themselves) a “military necessity.” Rather, the subject of review is the action we contemplate taking.

The “legal test” for military necessity is also fairly easy to satisfy. We ask if there is a reasonable connection between the conduct and a direct military advantage (like the weakening or overcoming of enemy force). The answer requires both a subjective and objective point of view: Given the information available to a commander (who authorizes or orders the attack) at the time of the decision, would a reasonably prudent commander, acting in accordance with LOAC, knowing what the specific commander knew, have acted similarly in similar circumstances?

So, would a reasonably prudent commander order a drone strike on a target solely on grounds of retribution or retaliation? What direct military advantage is gained by doing so? The key terms here are “military” and “advantage.” Retribution, or pay-back, satisfies emotional, social, political, or psychological urges—sometimes even widely-shared and completely justifiable urges. It has no intention to makes you better off than you were before the attack. But it does not yield a direct military advantage. In effect, perhaps even foreseeably, a retaliatory strike could yield direct military advantages incidentally, as a by-product. For example, it may eliminate a key leader or other target directly participating in hostilities, leaving the enemy leaderless or with reduced personnel strength, either of which could be militarily advantageous. It may even deter future aggression by like-minded parties. It also removes the possibility that this target can engage in some future attack, but such an argument blurs the distinction between taking action in self-defense and proactively attacking to achieve a tactical or strategic benefit over an adversary. But unlike self-defense, the deterrence justification can only work if framed as one that plausibly serves as an answer to a describable “military necessity.” If political and military elites justify an attack solely in the language of retaliation, it becomes easier to avoid or skirt the trickier questions of whether the attack actually meets this fundamental LOAC principle of warfare.

In many cases, the deterrent effect or self-defense arguments are clear. In others, they may be assumed but may not necessarily be supported by the facts. If the goal is to reduce or eliminate the military strength of the adversary, it is both pragmatically sound and a legitimate jus in bello tactic. If the goal is to deter the adversary from engaging in certain actions, or physically deter them from certain locations, that too is both pragmatically sound and legitimate under the jus in bello. As a matter of law and transparency, and if we’re going to announce a strike in advance anyway, these—not threats of “pay-back”—are the proper subjects of political rhetoric.

The only sense in which retaliation possibly plays any part in military action under the law of war is in the doctrine of “reprisals.” This is the limited ability for one nation (A) to breach the law of war when fighting against another nation (B) if and only if B first committed a serious violation of international law; B is warned; A requests B to fulfill its obligations and B fails to do so; and A’s response is proportional. The motive for this is type of controversial countermeasure is often perceived to be punitive, but it actually serves a deterrent purpose, meant to induce B to comply in the future with international law, and thus could be justified as a “military necessity” under the circumstances. In any event, “reprisal” was never officially suggested as a legal ground for the killing of Soleimani or the Aug 26th strike in Kabul.

 Jus ad Bellum

Perhaps the stronger objection to the rhetoric of retaliation is grounded in principles of the jus ad bellum, or the legal reasons controlling when a nation may resort to using armed force in its international relations. Imagine the following generic hypothetical implicating pure jus ad bellum and the rhetoric of retaliation:

Nation A and Nation B share a border and are historical adversaries, economic competitors, and have long-standing grievances based on ethnic claims and disputes over their shared border. A surveillance drone belonging to Nation A is shot down by Nation B, crashes in A’s territory, severely damages a hospital and school, and wounds and kills scores of civilians. Nation B claims a drone repeatedly violated its airspace but does not claim that the drone was armed or engaged in any attack on B’s territory at the time. Nation A denies that its drone violated B’s airspace and proclaims that it will avenge the deaths of its citizens.

Two weeks later, Nation A launches a drone strike on B’s air defense battery that shot down its first drone. This attack kills scores of B’s soldiers stationed at the site. Nation B declares that A has engaged in an act of war, deploys a motorized infantry division to staging areas less than one kilometer from the border and begins to target high profile military bases inside A’s territory with periodic mortar and artillery strikes. Nation A immediately counters with aircraft sorties bombing mixed military-civilian infrastructure in and around Nation B’s capital city. Nation A informs the United Nations that these actions are in self-defense and that it believes a state of war now exists with B. A then requests a Security Council Resolution authorizing Member States to aid Nation A “by any means” in its defense.

Absent a legitimate self-defense claim or a United Nations Security Council Resolution (UNSCR), a nation’s resort to force is unlawful. Notwithstanding the debate over what constitutes an “imminent threat” or the legal and moral obligations of humanitarian interventions, the use of force must be authorized under both domestic law and International Law in order to be considered “lawful.” Many agree that under U.S. domestic law, the president can use force unilaterally abroad against an enemy or threat when acting in defense of the nation under a stand-alone Article II power as commander-in-chief, or when authorized by Congress (through a formal declaration of war or an AUMF). Even acting with such authority, it remains important to remember that the international legal standards must be met as well. Outside of a pure self-defense claim, a use of force must be the last resort. Retaliation, as a theory of action, is bound by no such conditions—it is retributive and punishing, not intended to protect a status quo or return to the status quo ante.

The August 26th strike occurred in the territory of Afghanistan, against an ISIS affiliate, with what might be assumed to be the (tacit) consent of the Host Nation, not because of a UNSCR.What makes this “consent” argument problematic is the question of who—really—is the sovereign authority in Afghanistan that could “give consent?” Was it the de jure government under President Ghani, or was it the (arguably) de facto control of the Taliban? If the latter, the astounding irony is obvious (after all, the domestic legal authority for operating in Afghanistan is the 2001 AUMF, used initially to remove the Taliban from the seat of sovereignty as the permissive hosts of al-Qaeda).

If the public (or at least a vocal collection of legal scholars and pundits) is skeptical about a hodge-podge platter of legal arguments, as it was after Trump’s Soleimani strike, it is not without good reason. Conflating or misstating rationales and merging genuine legal justifications with visceral or pragmatic justifications demonstrates the difficult challenge that is legitimizing lethal force abroad. An undisciplined rhetoric of retaliation exacerbates that challenge. It may, as in the case of the Soleimani strike, blur the distinction between jus ad bellum arguments and jus in bello arguments, orienting the spotlight on the U.S. domestic legal rationale and authority for the attack (arguably the 2001 AUMF for the strike against ISIS-K)—one the Administration may not have strong faith in or wish to invoke. By placing both retaliation and deterrence alongside a non-obvious self-defense argument, and a potentially weak AUMF argument, as “legal theories” to justify the attack, the government expands the historical precedence for wide, unilateral decisions by presidents to use force abroad, and to do so without prior Congressional authorization. Since the War Powers Resolution of 1973, which allows a president to introduce force overseas unilaterally (at least for a brief period), the president’s independent employment of military force has been accepted practice with no judicial intervention and little Congressional rejection reflecting both political parties’ and both political branches’ interpretations of a president’s foreign affairs and commander-in-chief authorities.

In addition to highlighting the question of domestic authority and adding gloss to the presidency’s precedent of unilateral war-making, the rhetoric of retaliation may open the United States to the international community’s condemnation or accusation that we are violating both customary international law and the United Nations Charter prohibition on the use of force. Of course, whether officials care about that condemnation and alter their rhetoric or behavior is a political choice. Finally, it may risk giving our adversaries—whether near-peer competitors or non-state actors—alternative legal grounds (not just moral or strategic) to use force against the United States, engaging in a cycle of retaliatory and “pre-emptive” deterrence and self-help operations under the label of “self-defense.” In essence: because we’ve used the rhetoric and language of retaliation, why wouldn’t they?

The solution is both obvious and simple: Stop talking about using armed force as payback (and, in a jus ad bellum sense, deterrence too). Too much reliance or emphasis on the non-legal justification of retaliation endangers our ability to transparently comply with basic premises and requirements of the law of war. It obscures whether other legitimate legal justifications are also present under the circumstances, making it difficult to form judgments about that use of force and enforce accountability for unlawful exercises of power. The rhetoric of retaliation makes it easier for governments to rely on the public’s assumptions that an attack was based on a theory of self-defense. Self-defense can be both a nation’s motive and legal authority to employ armed force; in jus in bello questions of military necessity, even deterrence can be both motive and legal authority. But retaliation is only ever a motive.

The Use of Military Force Is Not an Exercise of Criminal Law

The use of the nation’s military strength against its enemies abroad cannot be justified, legally, by a mere motive; but unlike the criminal law, our “punishment” of a hostile belligerent nation, terrorist group, or high value target cannot alone serve as its legal argument. This may not always matter—it depends. To the extent that it obscures genuine legal justifications or shields from view the fact that a genuine legal justification may not exist, this rhetoric of retaliation should be silenced. When potential adversaries extend beyond terrorists and insurgents to include near-peer competitors with modern professional militaries with technologically sophisticated capabilities, the rhetoric of retaliation is too dangerous a game to play.

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LTC Dan Maurer is a judge advocate and currently serves as an Assistant Professor of Law at the U.S. Military Academy. The opinions in this essay are those of the author alone and do not represent the official policy or positions of the U.S. Government.