Reflections on National Security and International Law Issues During the Clinton Administration

I. BACKGROUND I have spent my entire professional life in Washington, DC. Because I am a Democrat, most of that time has been in private practice. But I have worked twice in the Executive Branch: once as a "baby" special assistant for Secretary of Defense Harold Brown during the Carter Administration, and then as the General Counsel of the Department of Defense for more than five years during the Clinton Administration. While my experience with Secretary Brown made me slightly more credible (and genuinely more oriented) when I was lucky enough to be nominated as General Counsel, it is fair to say that my fifteen years in private practice had not been focused on national security policy. When I was confirmed for my new job in September 1994, almost two years into the Administration, I was clearly behind the policy curve. When I arrived, the Administration had already been chastened by events in Somalia, but had nevertheless mounted a humanitarian effort to relieve famine and massive population displacement in Rwanda. And just days before I settled into my new office, pursuant to United Nations Security Council Resolution ("UNSCR"') 940, the United States had sent forces to Haiti. Thus from the day I arrived, I found myself immersed in a sea of questions relating both to our activities in Haiti-and to what was going to happen to the 15,000 Haitian refugees who had sought to escape the turmoil of their own country by boat, and were instead brought to Guantanamo Bay while we tried to figure out what to do next. Much has been written about how the end of the Cold War totally shifted the post World War II framework of foreign policy and national security assumptions for the United States, and for the rest of the world. Desert Storm underlined both that shift and the extraordinary military force that could be brought to bear by the United States. The Clinton Administration was obviously the first American administration forced to grapple with what that shift meant in terms of how to define our national interest; how and when to use the military; how to preserve or redefine our relationships with both traditional allies and traditional "enemies." This transitional period necessarily lacked the intense policy focus on terrorism that resulted from the terrible events of September 11th. And because, shortly after I arrived, both Houses of Congress shifted into Republican control, this transition almost by definition would feature classic struggles between the Congress and the Executive branch, as well as between the parties controlling each branch of government. All the same, I would argue that the Clinton Administration's efforts to deal with Haiti, Bosnia, Iraq, North Korea, Kosovo, and East Timor, along with the newly effective power of nongovernmental organizations on the international treaty scene (for example, landmines, the proposed International Criminal Court) offer some lessons to build upon now. II. HAITI Apart from the personal coincidence of our deciding to use military force if need be in Haiti just as I started my new job, Haiti was a continuing lesson for all of us in how hard it is to deal successfully with a country's problems once you have decided to lend a hand. Haiti may not have sunk to the "failed state" that we now encounter in Afghanistan, but its incoherent and allegedly corrupt government had created thousands of refugees; it had a minimal public works infrastructure, an apparently corrupt police and military, and a non-functional Ministry of Justice and court system. Although lawyers in my office and on the ground had encountered similar issues in Somalia, Haiti was my initial introduction to the questions of what the Department of Defense or other departments could or should do: who would be participating in the United Nations-authorized peacekeeping force; how to resolve chain of command questions; how to develop Rules of Engagement ("ROE"); and the almost always central question of who pays. …