Faculty Q&A: Matthew Waxman
Interview by Bridget O'Brian
Matthew Waxman has been in the middle of some of the thorniest legal issues of the past decade. An expert on national security law during the Bush administration, he served in senior positions at the U.S. State Department, the Department of Defense and the National Security Council.
But it was in his job as deputy assistant secretary of defense for detainee affairs in 2004 and 2005 that he came to public attention. Waxman, then 32 years old, had taken a job that was created to reform military detention operations after the Abu Ghraib prisoner abuse scandal. He fought watering down the Geneva Convention rules against torture and cruel treatment, in the process butting heads with aides to Vice President Dick Cheney and Pentagon officials who wanted to limit detainees’ legal rights. “These were intense debates,” he says. “In my view, adherence to Geneva standards was not just a matter of good lawyering but a matter of good national security policy as well.”
Image credit: Eileen Barroso / Columbia University
A native of the Bronx whose parents both work at Yale, Waxman came by his interest in national security as a student and voracious reader of military history. Indeed, after graduating from Yale College, he spent a year at King’s College in London as a Fulbright scholar, studying military strategy, before working at RAND as a consultant to the Pentagon. After law school—Yale, again—he clerked for U.S. Appeals Court Judge Joel Flaum of the Seventh Circuit and then for Supreme Court Justice David Souter. He was Souter’s law clerk during Bush v. Gore and regards Souter as one of his most influential mentors.
His Supreme Court clerkship ended shortly before 9/11, and his expertise in national security matters—as well as his published scholarship on military strategy, which soon culminated in a book, The Dynamics of Coercion—brought him to the attention of Condoleezza Rice, then the National Security Advisor. He started as her aide, with a small office next to hers in the White House West Wing, and later worked for her again at the State Department as deputy director of the Policy Planning Staff—its internal “think tank.”
Waxman draws on his Washington experience at the law school, teaching courses on national security law, international law and the use of force internationally.
He was an early advocate of closing Guantanamo before President Barack Obama made it official. In a 2007 article in The Washington Post, titled “The Smart Way to Shut Gitmo Down,” Waxman—who had just left government service—argued that, aside from the legal merits, Guantanamo was undermining U.S. foreign policy and counter terrorism efforts.
Nearly three years later, nothing has happened to change his opinion. Here, he shares his views on other legal issues facing the Obama administration.
Q. The trial of Khalid Sheik Mohammed was supposed to be held in New York, but now the Justice Department is retreating from that. What are the options at this point? Is some group or politician inevitably going to be unhappy with what the administration decides?
At this point, it’s hard to see any option that will command broad political consensus, nor is there any option that is risk-free. Prosecutions in federal court are viable for many Guantanamo detainees, including Khalid Sheik Mohammed and other major 9/11 suspects, and they certainly carry the most support internationally. The tougher question is what to do with other detainees who are deemed too dangerous or heinous to send home to weak states like Yemen but who cannot be effectively prosecuted because of limitations of evidence or other reasons.
Q. What is the appropriate balance—if there can be such a thing—between military tribunals and civilian criminal courts? What kinds of defendants should be prosecuted in each?
Part of what’s at stake is a fundamental debate about whether the problem of terrorism is one of criminality that should be combated by the criminal justice system or one of war that should be combated with the tools of warfare. So far, the Obama administration has straddled that debate. On the one hand, it has distanced itself from some of the most aggressive legal claims of the Bush administration and said that, when possible, it plans to use the federal criminal courts. But, on the other hand, it has left open the possibility of holding some detainees long term without trial, and it also intends to send some of them to military commissions. That flexibility is necessary in combating a threat that has attributes of both warfare and criminality. The difficult problems of detaining and interrogating terrorism suspects, especially those picked up in lawless regions or amid covert intelligence operations, will persist long after the 200 remaining Guantanamo cases are resolved.
Q. Were you surprised that President Obama has adopted positions similar to those of the Bush administration?
President Obama has been criticized by many of his original supporters for adopting what they see as Bush administration positions, not only on detention but on other national security law issues such as secrecy privileges, surveillance powers, authority to use military force, etc. These arguments were not invented by the Bush team, though in some cases they were taken to new extremes. These are longstanding institutional positions of the executive branch that have historically transcended partisan divides.
Q. Obama has missed his own deadline for closing Guantanamo. Given the immense complexity of the issue, what still has to happen for Guantanamo to be closed?
Numerically speaking, the Obama administration has made some progress toward closing Guantanamo by transferring and releasing detainees abroad. But legislatively, it has been losing ground and is now, as a result of congressional restrictions, worse off than when it started. The politics are such that new statutory hurdles or barriers will continue to block paths toward rapid closure. More important than whether and when Guantanamo is closed, however, is how it is closed—that is, to what legal processes or to what protections will detainees be entitled wherever they are moved? Guantanamo is indelibly associated with efforts to keep detainees beyond the reach of law, but to focus too heavily on the promise to close it obscures the bigger questions lurking behind.
Q. What other national security law issues should Obama be worried about?
Although President Obama has prohibited harsh interrogations of terrorism suspects, he has reportedly expanded the use of drone attacks against them in places like Pakistan. Such operations highlight difficult questions about who can be targeted with lethal military force and where.
Q. During the Bush years, a big question concerned the limits of electronic surveillance of U.S. citizens or inside the United States.
Neither the president nor Congress wants to reopen that debate. But the evolution of threats we face and changes in technology will continue to force the reevaluation of the balance between security and privacy, not only with respect to collecting information but also the government’s authority to retain it, process it and use it. The rapid advances in information technology that promote commerce and make the United States so strong economically and militarily also create new vulnerabilities, including cyberterrorism and cyberwarfare. This raises tremendously important and difficult legal and policy questions. How will the government structure its relationship with the private sector to protect against these threats? What actions may the United States take to defend itself, perhaps preemptively, against other countries’ systems?
Q. In a recent report from the Council on Foreign Relations, Intervention to Stop Genocide and Mass Atrocities, you questioned whether the U.N. Security Council system is up to the task of dealing with this problem. What lessons should we draw?
Working through the U.N. Security Council carries important advantages, including legitimacy. But history shows that it can’t wield much power unless the interests of the five permanent members align. For many current challenges, from atrocities in Sudan to Iranian nuclear development, the interests among the key Security Council players are too divergent to produce strong responses. The answer is neither radical reform nor unilateralism, but rather the recognition that moral and security necessities may sometimes require action without Security Council authorization.