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Pentagon Creates Office to Bolster International Legitimacy

Flournoy-brooks.jpg
Flournoy-brooks.jpg

Michele Flournoy, left, created the Office for Rule of Law and International Humanitarian Policy, which is led by Rosa Brooks. (ZUMA, Bloggerama)

For the first time, the Department of Defense has established an office to guide policy on emerging non-traditional military activities like compliance with the rule of law, humanitarian emergencies and human rights. It’s a bureaucratic change that effectively frames international legitimacy as a security issue, a reflection of the legacy of the Iraq and Afghanistan wars among some policymakers. And the office’s first test may be its perspective on the thorny questions surrounding how the department handles al-Qaeda and Taliban detainees.

[Security1] Announced within the Pentagon in late May, the Office for Rule of Law and International Humanitarian Policy is being led by Rosa Brooks, a senior adviser to Undersecretary of Defense for Policy Michele Flournoy and a former director of Georgetown Law School’s Human Rights Center. It endeavors to ensure that the broad strategic aims of the Obama administration regarding adherence to a rules-based international order don’t get lost in the pressures of military contingencies. It will also advise senior Pentagon officials on their contributions to interagency planning and White House requests for advice on rule-of-law compliance, and will work with Congress and non-governmental organizations focusing on its host of issues.

The office — created by Flournoy with support from Defense Secretary Robert Gates and run by a staff that will eventually number 20 people — reflects a recent recognition that the legitimacy of the U.S. military in combat plays its own battlefield role, especially in conflicts like Afghanistan, where perceptions by civilians about whether to support America’s allies or its adversaries are considered decisive. “The counterinsurgency and counterterrorism doctrine has really moved in the direction of saying that these issues are not luxuries,” Brooks explained in a Monday interview at the Pentagon. “These issues are absolutely central to achieving our military objectives in a counterinsurgency or a counterterrorism environment, where the name of the game is ‘Do you have credibility? Do you have legitimacy? Are you building the structures that support long-term stability?’”

Many of the office’s emerging responsibilities will center on entrenching respect for the rule of law and human rights as a core focus within the Defense Department. Previously, Pentagon officials who worked on those issues were spread throughout the policy directorate, in bureaus as disparate as Counternarcotics and Detainee Affairs, a reflection of the secondary — Brooks called it “ad hoc” — treatment the department has traditionally provided to humanitarian concerns. Karen Greenberg, the director of New York University’s Center on Law and Security, said the office needs to “restore the notion that the rule of law is there on the table no matter what.” Matthew Waxman, a deputy assistant secretary of defense for detainee affairs at the end of the Bush administration, added that “sometimes important strategic issues can fall into bureaucratic seams, and redrawing parts of the organizational map can help address that.”

That contrasts with the previous administration’s perspective that human rights and the rule of law were impediments to effective military operations. President Bush famously judged in 2002 that al-Qaeda and Taliban detainees ought to be treated humanely “to the extent appropriate and consistent with military necessity.”

While building a staff and a budget means that Brooks anticipates the office’s agenda will take shape over the next several months, she said some early priority “areas to look at” include the Defense Department’s security assistance and training for partner militaries — to ensure it “not inadvertently undermin[e]” the U.S. interest in promoting the rule of law — and the effectiveness of department support to judicial systems.

Developing broader policy guidance to protect civilians during combat is another likely focus for the office, Brooks said, citing Gen. Stanley McChrystal’s guidance to his troops in Afghanistan about the need to secure civilian support for NATO military operations. “Reducing civilian casualties supports achieving military objectives,” Brooks said. “If the population is furious at you because bombs keep falling on schools, it’s harder to achieve your objectives.” She added that the propriety of “a global directive of that sort” required further study, but anticipated that any such study would have “potential consequences” for crafting military doctrine on protecting civilians.

“The goal would be to see if we need to make changes,” Brooks said, stressing that her agenda is still preliminary. “It’s a moral goal, and it is a tactical and strategic goal, to minimize civilian casualties. Are we doing it as effectively as we could? Do we have the systems in place, the doctrine in place, the training in place, to do as well as we could, while recognizing that doctrine, training, et cetera matters?”

In some cases, like U.S. compliance with treaty obligations, Brooks said she expects her office to serve in a supporting role to other agencies, while taking the lead on issues where the military has the greatest stake. “The State Department can’t determine whether DOD needs to revise its doctrine to better protect civilians,” she said.

Some human-rights advocates greeted the establishment of the new office with optimism. “To the extent the Pentagon is engaging directly with foreign governments, having a human rights voice in that room is extremely important, so the U.S. speaks with a single voice,” said Tom Malinowski of Human Rights Watch. “You don’t want the State Department coming in one day with a broad policy agenda [including] respect for human rights and humanitarian principles and the Pentagon coming in the next day talking about basing rights without the two being coordinated.”

Greenberg said the big test for the office will be its ability to help influence the emerging shape of detainee policy. Administration officials and congressional leaders have discussed the creation of frameworks for indefinite detention without charge, an idea that found its way into the National Security Strategy under the rubric of creating an “approach that can be sustained by future Administrations, with support from both political parties and all three branches of government.” Malinowski cautioned against viewing detainee policy as a crucible for the new office, but said he hopes the office can “guard against the tendency of the Pentagon as an institution to reflexively defend the expanded powers that it received in the last administration.”

Brooks said that her office “will work very closely” with Col. William Lietzau, the deputy assistant secretary for detainee affairs, but did not specify any programmatic agenda. “Bill Lietzau is someone who’s already attuned to those issues anyway, so those are the kinds of conversations that we’re always having,” Brooks said, concerning how to “make sure that as we try to work through these thorny inherited detainee issues that we’re doing it in a way that buttresses our broad commitments to rule-of-law norms.”

“And it’s not easy on those issues,” she added. “The briar patch we started out with has been a tough one to get ourselves out of without sustaining a lot of little scratches.”

Waxman wrestled with those issues while he ran detainee policy for the Rumsfeld Pentagon. He hailed Brooks’ office as a step toward integrating law and strategy. “Often those issues are thought of as separate spheres: The lawyers in the general counsel’s office and the military judge advocates say what the legal bounds are and the policy advisers and military planners and operators decide within those bounds what the strategy is,” Waxman said. “That’s too simplistic and risks missing the many ways in which the two operate in tandem, and this new office looks like it’s intended to help ensure they do so effectively. For example, the United States may have a strategic interest in abiding by certain standards, because we want to promote those standards abroad among foreign forces or because it’s believed to strengthen counterinsurgency efforts to win hearts and minds.”

Brooks herself will continue to wear several hats in the Pentagon. In addition to becoming the first deputy assistant secretary of defense for Rule of Law and International Humanitarian Policy, she’ll remain Flournoy’s senior adviser and helm the policy directorate’s Global Strategic Engagement Team. “Rosa is an excellent person to do this job,” Malinowski said. “I’m happy to hear the position has been created and happy to hear she’s filling it.”

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