A matter of opinion

When a nation state embarks on a war, it’s unlikely that many of the soldiers on the ground will be lawyers. But that is not to say that lawyers won’t be paying attention. The nature of the fighting, particularly whether civilians have been harmed or put in harm’s way, is key during the hostilities and after they stop.

It falls to international lawyers working for nation states to argue over whether war fighters and their leaders behaved according to the laws of war, or whether they were party to atrocities that could constitute war crimes.

For Allen S. Weiner, a veteran international lawyer, director of the international and comparative law program at Stanford University Law School, a co-director of Stanford’s Center on International Conflict and Negotiation, and a member of the governing board of the Sequoia Union High School District, international law – including the laws of war and their ethical underpinnings, known as just-war theory – are his teaching terrain.

“One of the things that’s interesting to explore (in class) is, what is the connection between the (laws and the theory),” Weiner said in a recent interview. “Sometimes they line up, but maybe in some cases there’s a disconnect between what we think what would be just or ethical and what the law allows.”

Weiner, a Menlo Park resident, spent 11 years as an attorney for the U.S. State Department, three of them in the Netherlands as the principal legal representative for the United States in The Hague. His years of work there included litigating before the International Court of Justice – the equivalent of civil court for nation states – and before the International Criminal Tribunal in connection with indicted war criminals from the former Yugoslavia.

“I hope that I’ll have the chance in some capacity or another again to serve, because it was a source of great pride,” Weiner said.

Weiner, who has written textbooks on international law, has authored papers on matters such as finding justice after the civil war in Colombia, the importance of constitutions in the wake of the Arab Spring uprisings, and the value of the U.N. Security Council in countering international terrorism.

With his law school colleague Scott D. Sagan, he recently co-authored an op-ed in The New York Times critical of a legal justification for a pre-emptive first-strike attack against North Korea as advanced by John Bolton, President Donald Trump’s new national security adviser.

Bolton, they write, is revisiting what he argued in the run-up to the invasion of Iraq in 2003, blurring the distinction between a preventive attack, which is illegal under international law, and a pre-emptive attack legal but only when the need for self-defense is “instant” and “overwhelming.” If North Korea were discovered fueling long-range missiles on launchpads or rolling out missile launch vehicles, that could justify a pre-emptive strike, they wrote.

Use of force

About that 2003 invasion of Iraq: “I think it was not lawful,” Weiner said. The United States had not suffered an armed attack and had no right of self-defense, he said. The George W. Bush administration advanced the theory that the use of force was authorized by U.N. Security Council resolutions from the first Gulf War. “It’s not a laughable argument,” he said. “It’s not a completely implausible argument. But I think on balance it’s a losing argument. If I were asked to rule thumbs up or thumbs down, I would say, ‘No. Those resolutions didn’t allow the U.S. on its own authority to invade Iraq in 2003.'”

An opinion about an argument is perhaps the essence of international law. “Most of the issues aren’t decided by courts,” Weiner said. “They’re decided by the practice of states. Trying to figure out the content of the law involves looking a lot more at what states did and what they said and what justifications they offered.”

In the first Gulf War in 1991, armed forces from a group of countries, with the blessing of the Security Council, engaged and defeated the Iraqi army after its invasion of Kuwait. “It was a textbook example of a lawful use of force,” Weiner said. “Under international law, there’s a right of collective self-defense, which means ‘If I’m attacked, I have a right of self-defense and I can ask countries to come and assist me.'”

If the Vietnamese government in the 1960s had been facing a domestic insurgency from what came to called the Viet Cong, international law probably granted it a right to ask for military assistance from the United States, Weiner said. Whether the U.S. administration violated the U.S. constitution by not getting Congressional approval before committing troops is another question, he said.

The U.S. invasion of Afghanistan in 2001 was “probably legal,” Weiner said, in that Al Qaeda’s attacks on Sept. 11 gave the United States a right to self-defense. A key point and a developing international standard: The country where the terrorists were located was either unwilling or unable to deal with them. “If a terrorist group based in Germany launched an attack against the United States, I don’t think we would say that we have the right to go and invade Germany,” he added.

Weiner, who is 54, graduated from Stanford Law School (in the top 10 percent of his class, he said) and has a bachelor’s degree in social theory, magna cum laude, from Harvard University. He joined the State Department’s legal adviser’s office after a year clerking for a judge in the District of Columbia Court of Appeals.

He said he chose to study the law as a continuation of his undergraduate interest in how society is organized, and dealing with questions such as who gets to vote, what the legislature does, the role of the president, and the obligations we have toward one another. “All these abstract notions that we think about in philosophy or social theory, we now (in law school) have to figure out how to write the rules and create the institutions to apply them,” he said. “I actually found that to be very, very satisfying.”

He had many assignments over his 11 years at the State Department, including a couple of years on the Cuba desk. “At the time, I thought our Cuba policy was foolish,” he said of the decades-long embargo, now no longer in effect. “I was of the view that if we actually opened up relations and let more Americans go and travel and facilitated more exchange of goods and cultural transactions, that that actually would be more threatening” to Fidel Castro’s communist regime.

An opinion, but a personal one. As a federal government attorney, Weiner said he was motivated by loyalty, as demonstrated by his role in carrying out an embargo policy he disagreed with and advocating for executive branch positions, whether before Congress or in court.

He recalled a case denying Cuban musicians visas to enter the United States. The decision was “well-supported within the statutory authority and the secretary’s discretion,” he said. “This is the way people in government think. We certainly have our own views, but I think people will be loyal and will do their jobs.”

The State Department had a significant number of layoffs and reassigned employees under Rex Tillerson, now a former secretary of state. Can it recover? “Yes,” Weiner said. “If (Mike) Pompeo is confirmed, he seems to come at things with much more of a Washington bureaucratic sensibility.” In other words, he wants to have as many resources, as much funding, and as many people as he can get, and to be at as many tables and in as many conversations as possible. “That’s how you maximize your influence,” Weiner said.

Weiner said he would welcome a spot for himself as head lawyer of the legal adviser’s office – “That would be a great honor,” he said – or certain other general-counsel positions in foreign relations or national security.

“I really valued very, very much the experience I had serving my government,” he said. “The work was intellectually satisfying, of course, and stimulating and felt important, but it really was an honor. There were times when I stood up in international courts and I had the ability to introduce myself with the words ‘Your honor, if it please the court (or if it please the tribunal), I’m Allen Weiner and I’m here appearing on behalf of the government of the United States.’ That still makes the hair on the back of my neck stand up a little bit.”

Flummoxed

Asked if he encounters situations that flummox him, Weiner noted that his three children, all graduates of Menlo-Atherton High School, create situations that flummox him every day. (Weiner is married to Mary Dent, also an attorney and currently the chief executive at Green Dot, a purveyor of reloadable debit cards that are often used as banks for people without the means to have bank accounts.)

What puzzles him, he said, is figuring out how Americans can once again solve their problems collectively in an era of political polarization and gerrymandering, and an era in social media in which anything can be news and anyone can be a reporter.

“I believe that most Americans, two-thirds of Americans, live pretty close to someplace around a political center and actually agree on much more than they disagree,” he said. “How do we get back to a place where we can agree on those things that most of us agree on and solve problems? I think it’s the challenge for my children’s generation.

“Everybody says they want people (in government) to solve their problems and yet we keep electing people who don’t want to solve problems, who just want to stake out incredibly extreme positions,” he said.

Being lawlerly

In their work, lawyers exchange words with people with whom they disagree. For those of us who avoid such conversations but might want to be rid of that habit, is there a remedy?

“One of the most important things to recognize is that we all see the world as we think it really is,” Weiner said. “But even though we think that’s true, our views are shaped by our situations, our perspectives, our biases, our experiences. We all think our views are objective and only other people have bias. Recognize that the other party in that conversation feels the same way.

“I always caution people that the fact that somebody disagrees with you doesn’t mean that there’s something wrong with them,” he added. “Just be aware that everybody has an independent narrative and it may be that there is no way to resolve that objectively.”

Another useful technique: Articulate, out loud, the other person’s position. “In my conflict resolution center, it’s an exercise that we engage in,” he said. “You have to say it in a way that, when they hear it, they would say ‘Yes. That’s an accurate characterization of what I believe.’ You can’t caricature them, you can’t mock them. You really have to put yourself in the position and try to articulate it.

“Now of course you don’t agree with it. But the very act of articulating it, of going through the steps of the argument, sometimes gives you an appreciation for why they see the world a little bit differently than you do.”

New insights may come along, he said, and you may amend views such as, ‘The reason why they disagree with me is because there’s something wrong with them, they’re stupid, they don’t understand.'”

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