Consider the Duck-Rabbit

Consider the duck-rabbit.

As art, it ain’t much. But as a metaphor for the legal conundrums created by the war on terror, it’s pretty good.

The humble duck-rabbit has an impressive pedigree: In the 1930s, the philosopher Ludwig Wittgenstein sketched it for his Cambridge University students to illustrate his theory of language games. "I shall call the following figure … the duck-rabbit," he declared. "It can be seen as a rabbit’s head, or as a duck’s." So — naturally — when I read reports on the recent U.S. "snatch and grab" operations in Libya and Somalia, I immediately thought of the duck-rabbit.

Yes, readers, this is what happens to those of us who leave government service and go into academia: One minute, we’re in the White House Situation Room making vital, real-world policy decisions; the next, we’re yammering on about long-dead European philosophers and drawing pictures of duck-rabbits. But bear with me.

The snatch-and-grab operations (one successful, one aborted prior to the capture of the target) triggered a renewed bout of blogospheric commentary on the legal status of the global war on terror (or GWOT, or the "armed conflict against al Qaeda and its associates," or the "global struggle against violent extremism," or whatever we’re calling it these days). You know: Were these law enforcement operations, military operations, or something else? Were the targets (Abu Anas al-Libi and Abdikadir Mohamed Abdikadir, alias Ikrima) wanted criminals or enemy combatants? And so on.

Legal experts have debated the very same questions for well over a decade now, starting way back when the Bush administration first began to send detainees to Guantanamo and then-Attorney General Alberto Gonzales quaintly pronounced the Geneva Conventions "quaint." Were the 9/11 attacks crime, or war? Is the legal framework applicable to combating terrorism a matter of international criminal law and human rights law, or the law of armed conflict?

I think it’s time to face up to an uncomfortable truth: These questions have no answers. They sound like they should have answers, but they don’t, they won’t, and they can’t. In fact, they’re the functional equivalent of arguing about whether the duck-rabbit is a rabbit or a duck.

The search for legal certainty

This hasn’t stopped legal commentators from insisting that there’s a manifestly right and a manifestly wrong way to understand the 9/11 attacks and subsequent U.S. counterterror efforts.

Immediately after 9/11, many legal experts took the view that since the 9/11 attacks were carried out by non-state actors using nothing that resembled traditional weapons, they were best understood as crimes (albeit crimes of a frightening magnitude and complexity) and were therefore appropriately addressed through an ordinary law enforcement paradigm.

French law professor Alain Pellet labeled the claim that the United States was at war with al Qaeda "legally false," and Amnesty International argued that under international law, "It is not possible to have an international armed conflict between a state on the one hand and a non-state actor on the other." James Cole (who was later appointed to a senior Justice Department position by President Obama) similarly insisted in a 2002 article that "for all the rhetoric about war, the Sept. 11 attacks were criminal acts."

More than a decade later, variants of this view continue to have strong adherents. As a recent European Council on Foreign Relations report by Anthony Dworkin notes, most European legal scholars and courts  reject "the notion of a de-territorialised global armed conflict between the US and al-Qaeda" and believe that "the threat of terrorism should be confronted within a law enforcement framework."

But if some commentators viewed law enforcement as the "obviously" correct legal paradigm for addressing 9/11 and subsequent terrorist threats, many others insisted with equal certainty on the correctness of the opposite proposition. "There is little disagreement … that if the September 11 attacks had been launched by another nation, an armed conflict under international law would exist," argued Justice Department lawyers John Yoo and James Ho in 2001. This "should qualify the attacks as an act of war."

The Obama administration’s legal analysis is similar. As former White House counterterrorism advisor (and current CIA director) John Brennan put it in 2011, "[W]e are at war with al Qaeda. In an indisputable act of aggression, al Qaeda attacked our nation and killed nearly 3,000 innocent people." President Obama has repeated the same sentiment, leaving little room for doubt: "Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces."

Back to the duck-rabbit

Return to the duck-rabbit, which achieved scholarly immortality through its inclusion in the posthumous publication of Wittgenstein’s Philosophical Investigations. It is a mistake, Wittgenstein argued, to imagine that words are straightforward representations of some fixed external reality; rather, language itself is inseparable from context. Thus, as Wittgenstein put it, "The picture [of the duck-rabbit] might have been shewn me, and I never have seen anything but a rabbit in it…. [But imagine now] I see two pictures, with the duck-rabbit surrounded by rabbits in one, by ducks in the other."

When the duck-rabbit is surrounded by other images that appear to "clearly" and unambiguously represent rabbits, engaged in typically rabbit-like activities, one would never think to see the duck-rabbit as anything but a quickly sketched rabbit. But when the duck-rabbit is surrounded by images that are "clearly" of ducks, engaged in duck-like activities, one would be equally unlikely to perceive the duck-rabbit as anything other than a duck.

Looking back and forth between a picture in which the duck-rabbit is surrounded by rabbits and a picture in which it is surrounded by ducks, wrote Wittgenstein, one would "not notice that [the original duck-rabbit image is] the same" in each. But "[d]oes it follow from this that I see something different in the two cases?"    

Like Wittgenstein’s duck-rabbit, the 9/11 attacks can be seen as crime or as war — and, as with Wittgenstein’s duck-rabbit, it would be a mistake to insist that one vision is somehow "truer" than another, and equally mistaken to insist that there is a "right" and "wrong" legal paradigm by which to make sense of the 9/11 attacks.

Why it matters

Of course, saying that there is neither a "right" nor "wrong" way to understand terrorism doesn’t mean that the choice of paradigms is inconsequential. After all, the choice of "duck" versus "rabbit" is hardly inconsequential, if one is a hunter — or, for that matter, if one is a rabbit, or a duck. (If it’s duck-hunting season but not rabbit-hunting season, ducks are fair game but rabbits are immune from violence; if it’s rabbit-hunting season but not duck-hunting season, the opposite is true. The lawfulness of the hunter’s shot depends on whether we view the duck-rabbit as duck or as rabbit. For the duck-rabbit, survival itself is at stake.)

So it is with U.S. counterterror activities. "The speaking of language is part of an activity, or a form of life," noted Wittgenstein. If the events of 9/11 constituted an "armed attack" and U.S. efforts to combat terrorism constitute "a war," then the international law of armed conflict applies; if 9/11 was a crime (albeit a horrific crime), then ordinary criminal law applies. And a great deal hinges on which legal framework we choose, for war rules are extremely permissive when it comes to the use of lethal force and other forms of state coercion, while the law enforcement framework is far less permissive.

In a war, the United States can lawfully kill enemy combatants with no judicial process whatsoever, and it can lawfully capture them and detain them indefinitely without trial. But if there’s no war, suspects must be treated as innocent until proven guilty. They can’t be killed just because officials believe they might commit further crimes in the future, and if they’re apprehended, they need to be provided with lawyers and brought promptly before a duly established court.

The war/not-war distinction matters. If we can’t figure out whether or not there’s a war — or where the war is located, or who’s a combatant in that war and who’s a civilian — we have no way of deciding which rules to apply. But if we can’t figure out what rules apply, we lose any principled basis for making the most vital decisions a democracy can make.

When can lethal force be used inside the borders of a foreign country? Which communications and activities can be monitored, and which should be free of government eavesdropping? What matters can the courts decide, and what matters should be beyond the scope of judicial review? When can a government have "secret laws," and when must government decisions and their basis be submitted to public scrutiny? Who can be imprisoned, for how long, and with what degree, if any, of due process? Who is a duck, and who is a rabbit?

Ultimately: Who lives, and who dies?

Forget about law — and forget about lawyers

We can ask whether "snatch and grab" operations or drone strikes are "legal" until we’re blue in the face, but in a world full of duck-rabbits, we won’t learn anything interesting or useful.

Instead, we should focus on some very different questions: Do we prefer a world in which there are few constraints on the state’s use of lethal force, which creates one set of dangers — or do we want a world in which the state is more constrained, which creates a different set of dangers? How can we manage the dangers that accompany either vision? Or, if this is a false choice, what kind of world do we want to live in — and how can we get there?

These are questions about morality, policy, and competing visions of the good, and I don’t know how we will ultimately decide to answer them. But I do know one thing: Today, as in 2001, those who look to the law — or to lawyers — for guidance will look in vain.