International Institute for Counter-Terrorism

08/09/2008  
 
 The War on Terror - War or Metaphor?

Prof. Jefferey F. Addicott*

I. INTRODUCTION

In remarks given in November of 2007, President George W. Bush, reminded the Congress that the United States of America remained in a state of war – the so-called War on Terror: “We are at war – and we cannot win this war by wishing it away or pretending that it does not exist.”[1] Considering the fact that President Bush never wavered in this view, his remarks came as no surprise. Nevertheless, even seven years after the al-Qa’eda terror attacks of September 11, 2001, there are many who still refuse to accept the premise that the United States is in a state of war. For them, the term “War on Terror” has nothing to do with a real international armed conflict; it is merely a metaphor, similar to the Johnson era “war on poverty” or the Reagan era, “war on drugs.”

According to their reasoning, since there is no “war,” terrorists should be dealt with in the same manner as they were prior to September 11, 2001, by the domestic criminal process.

Undoubtedly, the friction between those who believe that the War on Terror is a real war and should be fought under the international law of war verses those who do not has created deep fissures in the legal community and, by extension, in society as a whole. While individual citizens of every vocation in life are certainly entitled to their personal opinions on the matter, what ultimately resonates in a representative democracy is what the government asserts. In short, does the executive, legislative, and judicial branch of the United States government view the War on Terror as a real war? In other words, if one accepts the premise that the United States is in a state of war, then various actions taken by the government, e.g., the use of military commissions, targeted killings, and detention facilities is perfectly legitimate. On the other hand, if one does not accept the premise that the War on Terror is a real war, then a very strong case can be made in a number of arenas of interest that the United States has engaged in activities that clearly violate both domestic and international law.

II. DEFINITIONS

Prior to exploring the expressed positions of the federal government regarding the War on Terror, it is imperative that certain central definitions be established. No serious progress or intelligent understanding can be achieved without a clear definition of basic terms associated with the subject of discussion. Unfortunately, some of the foundational terms in this analysis, such as the “War on Terror” and even “terrorism” present special challenges and could easily be the subject of entire chapters in their own right.

A. Terrorism

There is no internationally accepted definition of terrorism. While the United Nations employs the term in various international conventions and protocols related to terrorist activities, the world body has never been able to muster a consensus amongst the member States. As of this writing, there are 12 different international conventions related to terrorism and ten criminal acts identified as terrorism. The specific criminal acts associated with terrorism are: highjacking, aviation sabotage, acts of violence at airports, acts of violence regarding maritime navigation, acts of violence against fixed platforms, crimes against internationally protected persons, unlawful taking and use of nuclear material, hostage taking, terrorist bombings, and supporting front organizations serving as financial conduits for terrorists groups.

Even in the wake of the horrific terror attacks of 9/11, the proposed international definition of terrorism offered by the Ad Hoc Committee on Terrorism was not adopted by the General Assembly. The primary obstacle to acceptance emanated from the 56-member Organization of Islamic Conference. Incredibly, in an ends justifies the means analysis, the Organization of Islamic Conference wanted the definition of terrorism to exempt so-called wars of national liberation against foreign occupation.

To date, the best definitional effort emanating from the United Nations was offered by the former Secretary General, Kofi Annan. Mr. Annan’s 2005 definition ignored any reference to the issue of the “cause” that prompted the terrorist act while simultaneously rejecting the duplicity inherent in the old adage that one man's freedom fighter is another man's terrorist. His proposed definition of international terrorism simply encompassed anyone who intentionally targeted civilians:

[A]NY action constitutes terrorism if it is intended to cause death or serious bodily harm to civilians or non-combatants, with the purpose of intimidating a population or compelling a Government or an international organization to do or abstain from doing any act.

From Annan’s definition, one can list four key characteristics of terrorism that reflect the activity and ignore the cause:

1. The illegal use of violence directed at civilians to produce fear in a target group.

2. The continuing threat of additional future acts of violence.

3. A predominately political or ideological character of the act.

4. The desire to mobilize or immobilize a given target group.

Of course, the fact that the United Nations has no accepted definition of terrorism does not keep it from engaging in endless rhetoric about “terrorism.” For instance, U.N. Security Council Resolution 1368, passed on September 12, 2001, uses the term terrorism six times in the short one page condemnation of the “horrifying terrorist attack” of 9/11.

From a domestic perspective, the United States has many definitions of terrorism spread across a wide variety of criminal statutes, regulations, and directives. For example, the USA PATRIOT Act contains a definition for both domestic terrorism and international terrorism. Domestic terrorism is defined in the USA PATRIOT Act as the “unlawful use, or threatened use, of force or violence by a group or individuals based [in the United States] … committed against persons or property to intimidate or coerce a government, the civilian population … in furtherance of political or social objectives.”

International terrorism is defined as follows:

International terrorism involves violent acts or acts dangerous to human life that violate the criminal laws of the United States or any state, or that would be a criminal violation if committed within the jurisdiction of the United States or any state. These acts appear intended to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion, or affect the conduct of a government by assassination or kidnapping. International terrorist acts occur outside the United States or transcend national boundaries in terms of how terrorists accomplish them, the persons they appear intended to coerce or intimidate, or the place in which the perpetrators operate.

B. War

The use of the terms “war” or “act of war” traditionally refers to the use of unlawful aggressive force by one State against another State. Historically, such illegal acts most often occur without a formal declaration of war. The aggressive act itself triggers the ensuing international armed conflict. Today, the concept of war is generally analyzed under the mandates of the United Nations Charter. As embodied in Articles 2(3) and 2(4) of the U.N. Charter, the maintenance of “international peace and security” sets forth the basic purpose of the United Nations. Since all members of the United Nations are recognized as sovereign equals, no nation may resort to “threat or [the] use of force against the territorial integrity or political independence of any State” to settle any form of dispute. This, as well as the clear prohibition in Article 1 against any State committing “acts of aggression or other breaches of the peace,” serves as the legal framework condemning unlawful aggression.

Those nations which engage in unlawful aggression are subject to the provisions of Chapter VI and VII of the U.N. Charter. Chapter VI authorizes the Security Council to investigate any situation that might endanger the maintenance of international peace and security and to make recommendations for the peaceful resolution of such disputes. Chapter VII of the U.N. Charter authorizes the Security Council to determine the existence of a threat, a breach of peace, or act of aggression, and to take appropriate measures in response. While the U.N. has no standing military arm to enforce specific findings, the U.N. Charter does recognize at Article 51 the “inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.”

Article 51 states:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures to maintain international peace and security. Measures taken by Members in the exercise of the right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Acknowledging that Article 51 employs the term “armed attack” and not the term “aggression,” it is imperative to understand what exactly is meant by “armed attack.” In order to better define when an unlawful use of force in violation of Articles 2(3) and (4) occurs, one must look at the definition of aggression as adopted by resolution of the U.N. General Assembly. A State engages in aggression in the following ways according to the U.N. Definition of Aggression:

Article 1

Aggression is the use of armed force by a State against the sovereignty, territorial integrity, or political independence of another State, or in any manner inconsistent with the Charter of the United Nations ….

Article 2

The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression ….

Article 3

Any of the following acts, regardless of a declaration of war, shall … qualify as an act of aggression:

(a) The invasion or attack by the armed forces of a State … of another State or part thereof;

(b) Bombardment by the armed forces of a State against the territory of another State …

(c) The blockade of the ports or coasts of a State by the armed forces of another State;

(d) An attack by the armed forces of a State on the land, sea, or air forces, or marine and air fleets of another State;

(e) The use of armed forces of one State … in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;

(g) The sending by or on behalf of a State of armed bands, groups, irregulars, or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement
therein.

C. The Law of War

The law of war, also known as the law of armed conflict, consists of all of those laws, by treaty and customary principles, which are applicable the use of force. The law of war is focused both on the proper targeting of military objectives and the treatment of enemy detainees, prisoners of war and other noncombatants. The central body of the law of war is set out in the Geneva Conventions of 1949. The 1949 Geneva Conventions cover four categories:

• Geneva Convention of August 12, 1949, for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field;

• Geneva Convention of August 12, 1949, for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea;

• Geneva Convention of August 12, 1949, Relative to the Treatment of Prisoners of War; and

• Geneva Convention of August 12, 1949, Relative to the Protections of Civilian Persons in Time of War.

In the United States, Department of Defense Directive 5100.77, para. 5.3.1 requires all American military forces to comply with the law of war in the conduct of military operations in all armed conflicts regardless of how a particular conflict is characterized. Incorporating the provisions of the Geneva Conventions and all existing international laws relating to the conduct of armed conflict, the U.S. military has codified the law of war in Field Manual 27-10, Department of the Army Field Manual of the Law of Land Warfare (FM 27-10). FM 27-10 affirms that the basic goal of the law of war is to limit the impact of the inevitable evils of war by:

• protecting both combatants and noncombatants from unnecessary suffering;

• safeguarding certain fundamental human rights of persons who fall into the hands of the enemy, particularly prisoners of war, the wounded and sick, and civilians; and

• facilitating the restoration of peace.

Examples of the law of war include such common sense rules as the requirement to treat prisoners and detainees humanely; they may not be abused under any circumstances. Also, the probation on intentionally targeting for military attack civilians or protected places, such as hospitals and religious sites; the duty to treat all noncombatants with dignity and respect; and the obligation to protect those who surrender are integral components of the law of war.

The law of armed conflict describes lawful targets which can be destroyed in the proper context of military operations. The general principle is that the military acting in a wartime environment may kill the enemy, whether lawful combatants or unprivileged belligerents, and may include in either category civilians who take part in the hostilities. An enemy combatant, whether part of an organized military or a civilian who undertakes military activities, is a legitimate target at all times and may be lawfully killed, even if by surprise.

Thus, unannounced attacks do not preclude the use of violence involving the element of surprise. All “combatants are subject to attack if they are participating in hostilities through fire, maneuver and assault; providing logistic, communications, administrative, or other support.”

The law of war absolutely prohibits the killing of noncombatants, except as a matter of collateral damage where civilians may be killed ancillary to the lawful attack of a military objective. Civilians that maintain close proximity to a military objective assume the risk of being killed by enemy fire. Specifically targeting innocent civilians as a military objective is always illegal and criminal.

D. War Crimes

Violations of the law of war are labeled war crimes and depending on the severity of the offense, classified as either grave breaches or simple breaches. In FM 27-10: “The term war crime is the technical expression for a violation of the law of war by any person or persons, military of civilian. Every violation of the law of war is a war crime.” Grave breaches relate to those violations set out as such in the Geneva Conventions and would include the following acts committed against persons or property specifically protected by the Geneva Conventions: willful killing; torture or inhuman treatment, including biological experiments; or willfully causing great suffering or serious injury to body or health. All nations are required to investigate allegations of war crimes and in the case of a grave breach to either prosecute or extradite the accused to a nation that will prosecute. It is the policy of the United States that all American military personnel so accused are prosecuted by military courts marital under the substantive provisions of the Uniformed Code of Military Justice.

E. The Rule of Law

The phrase “the rule of law” roles off the tongue with great ease, but is subject to a wide variety of connotations. The term was first coined by Western legal scholars in the late sixteenth century and basically used to refer to the common law system of jurisprudence with particular emphasis on equality before the law courts. In terms of international behavior, the more modern meaning is directly associated with all of those rules and legal standards of behavior recognized and practiced between civilized States in the context of the community of nations. Domestically, the rule of law means that the State is following the mandates of the law as found in the laws of the land.

F. The War on Terror

The phrase “War on Terror” was first coined by President Bush aboard Air Force One on September 11, 2001, and in an address to the nation the next day, the President characterized the attacks using airplanes as weapons as “acts of war.” Thus, the beginning of the use of the term War on Terror is clearly set as September 11, 2001, when 19 members of the terrorist al-Qa’eda organization hijacked four domestic passenger jet aircraft while in flight and used them to kill approximately 3,000 people on U.S. soil. The term “War on Terror” is one of many phrases used to describe the ongoing conflict between the United States of America and the al-Qa’eda terror network, al-Qa’eda-styled terror groups, and any State that sponsors or supports them. Other synonyms include, the Global War on Terrorism and the Global War on Terror. In his address to a Joint Session of Congress and the American People on Sept. 20, 2001, President Bush cited al-Qa’eda and the nations that support that “radical network of terrorists” as the enemy in the United States’ War on Terror.

Nevertheless, there is no doubt that the phrase “War on Terror” is not an accurate description of the conflict and can be very misleading. Terrorism is not an enemy, it is a method employed by an enemy. In turn, the conflict is not against all terrorist groups in the world; there are thousands. It is not even meant to encompass all Islamic radical terror groups such as Hamas.

G. Enemy Combatants

The law of war allows for the indefinite detention of enemy combatants – both lawful enemy combatants and unlawful enemy combatants. These individuals need not be charged with a crime and can be held in detention until the armed conflict is over. The theory behind this particular law of war is not to punish the detainees but to keep them from rejoining enemy forces. During World War II, for instance, the United States detained over 450,000 Germans and Italians in the United States. No one seriously suggested that these individuals should be charged with a crime or released; no one challenged the validity of indefinite detention.

After some internal debate, the Bush Administration affirmed that the Geneva Conventions of 1949 did apply to the 2002 conflict in Afghanistan and, hence, the Taliban government. However, President Bush also unilaterally determined that the captured al-Qa’eda and Taliban fighters were not eligible for prisoner of war status nor were they entitled to protections contained in Common Article 3 of the 1949 Geneva Conventions, which sets out the minimum standards of treatment for detainees in armed conflict.

The Bush Administration reasoned that since the al-Qa’eda fighters belong to a terrorist organization and are not recognized members of an armed force, they are unlawful enemy combatants or unlawful belligerents under the law of war. Paragraph 60(b) of FM 27-10 indicates that “[p]ersons who are not members of the armed forces as defined in [the Geneva Conventions], who bear arms or engage in other conduct hostile to the enemy thereby deprive themselves of many of the privileges attaching to the members of the civilian population.” This means that they are responsible for breaches of the law of war, but are not entitled to the status of prisoners of war. As to the captured Taliban fighters, the United States determined that they were likewise not entitled to prisoner of war status under the Geneva Conventions because of their failure to comply with the Conventions’ criterion which requires lawful combatants to wear distinctive military insignia, i.e., uniforms which would make them distinguishable from the civilian population at a distance. The Taliban had “not effectively distinguished themselves from the civilian population.” The Bush Administration’s technical view of the detainees was rejected by the June 2006 Supreme Court decision in Hamdan v Rumsfeld. The Court found that Common Article 3 of the Geneva Conventions did in fact protect the detainees from being subjected to violence, outrages on personal dignity, torture, and cruel, humiliating, or degrading treatment. Although existing DOD directives, orders, policies, and doctrine conformed already to the standards of Common Article 3, the DOD quickly issued new treatment guidelines for detainees that incorporated the basic standards set out in Common Article 3.

After the 2002 military campaign in Afghanistan, the vast majority of the Taliban fighters were processed and released in Afghanistan. Approximately 1,000 al-Qa’eda and Taliban fighters were turned over to American forces for disposition. Those turned over to the U.S. military were deemed to be either too dangerous to parole or were suspected of committing war crimes. By early 2008, less than 300 were still being held at the detention facility at Guantanamo Bay, Cuba. All of these individuals are currently being detained until either they are deemed to be no longer a threat, hostilities cease, or in the cases of about 80 individuals, specific charges are levied against them for associated war crimes to be tired by military commission.

II. EXECUTIVE BRANCH

The President of the Untied States, George W. Bush, unequivocally believes that the nation is in a state of war and that the use of the law of war is a legitimate tool in waging that conflict. In his State of the Union Address of January 23, 2002, President Bush told the nation: “As we gather tonight, our nation is at war … and the civilized world faces unprecedented dangers.” Even if the term War on Terror is subject to vast oversimplification, the United States has repeatedly employed this concept to encompass the al-Qa’eda, the Taliban, the conflict in Iraq, the conflict in Afghanistan, and even groups inspired by the virus of jihad.

Article II, Section 1 of the Constitution provides that the “executive Power shall be vested in a President of the United States of America.” Section 2 states that the “President shall be Commander in Chief of the Army and Navy of the United States ….” As the nation’s Commander in Chief, none can challenge the assertion that President Bush has remained absolutely firm in his belief that the al-Qa’eda terror attacks of September 11, 2001, marked the beginning of a War on Terror which the President has consistently characterized as in fact a real war.

The President’s authority to order the American military to armed conflict is unquestioned under the terms of the United States Constitution. In fact, there is a long history of American presidents ordering the deployment of military forces abroad in situations of armed conflict or potential conflict. The number of instances where the president has used his Commander in Chief powers with a Congressional declaration of war, well exceeds 200 in number. Selected instances include: 1798–1800, undeclared naval war with France; 1801–1805, the First Barbary War (Tripoli declared war but not the United States); 1806, Mexico Incursion; 1806–1810, Gulf of Mexico Incursion; 1810, West Florida Incursion; 1812, Amelia Island in Florida; 1813, West Florida; 1813–1814, Marquesas Islands; 1814–1825, Caribbean (engagements between pirates and American war ships in response to over 3,000 pirate attacks on merchantmen between 1815–1823); 1815, Second Barbary War; 1950–1953, Korean War; 1958, Lebanon; 1962, Cuba; 1962, Thailand; 1964, Congo; 1964–1973, Vietnam War; 1965, Dominican Republic; 1980, Iran; 1981, El Salvador; 1982, Lebanon; 1983, Honduras; 1983, Chad; 1983, Grenada; 1986, Libya; 1989, Panama; 1989, Andean Region; 1991, Persian Gulf War; 1993, Bosnia; 1993–1995, Somalia; 1993–1995, Haiti; 1997, Serbia; 2001, Afghanistan; and 2003, Iraq.

The authority of the executive to order the military to engage in war and the authority of Congress to declare war or to otherwise share in the process of war making has been the source of much debate over the life of the Republic. By providing both branches of government with war making powers the framers established both a system of “checks and balances” and a built-in source of friction. In modern times, the most well known example of this friction is the 1973 War Powers Resolution, enacted over President Richard Nixon’s veto in 1973. The War Powers Resolution seeks to curtail or limit the power of the executive in the employment of American forces abroad. Among other things, it requires the President to consult with Congress if American forces are introduced into hostilities or into situations where hostilities are imminent and, after a time set at a maximum of ninety days, either obtain Congressional approval of any continued military action or withdraw. Needless to say, the War Powers Resolution raises serious separation of powers issues which, to date, the United States Supreme Court has refused to address. Not surprisingly, no American president from either political party has directly complied with the War Powers Resolution, viewing it as an infringement on the executive authority as Commander in Chief. At most, when presidents have employed United States armed forces in hostile situations or in places where conflict was imminent, Congress has simply been notified in writing “consistent with the War Powers Resolution.”

Without question, the President has firmly indicated that the nation is engaged in an ongoing armed conflict with the Taliban, al-Qa’eda and al-Qa’eda-styled combatants. In the view of the executive branch of government, this continuing armed conflict between the Taliban, al-Qa’eda, and al-Qa’eda-styled terrorists is lawfully framed as an international armed conflict and the law of war properly applies.

III. LEGISLATIVE BRANCH

Following the attacks of 9/11 Congress elected not to exercise its power to “declare war” under Article 1, Section 8, of the Constitution. To students of American history this is not unusual, as Congress has enacted only eleven formal declarations of war relating to only five different conflicts out of the more than 200 wars that the United States has fought. Curiously, the last time Congress “declared” war was in December 1941.

What Congress did do was to do in the week following 9/11 is what it normally does in time of armed conflict and that is to issue a strongly worded joint resolution. Cited as the Authorization for Use of Military Force (AUMF), this document authorized the President to use military force, if necessary, to respond to the attacks with “all necessary and appropriate force against those nations, organizations, or persons he determines [emphasis added]” were associated with the terror attacks of September 11, 2001. In addition, the resolution also authorized the President to take additional action to “prevent any future acts of international terrorism against the United States.” In an unprecedented show of unity, this resolution was passed by every member of the Senate and every member of the House of Representatives, save one member from California. The AUMF provides:

AUTHORIZATION FOR THE USE OF MILITARY FORCE

Public Law 107-40, 107th Congress
Joint Resolution

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States. NOTE: Sept. 18, 2001—[S.J. Res. 23]

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, NOTE: Authorization for Use of Military Force.

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the “Authorization for Use of Military Force.”

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) In General.—That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements.—

(1) Specific statutory authorization.—Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) Applicability of other requirements.—Nothing in this resolution supersedes any requirement of the War Powers Resolution.

Approved September 18, 2001.

While Congress has passed various pieces of legislation associated with the War on Terror, such as the 2005 Detainee Treatment Act, the most significant piece of legislation to date is the 2006 law entitled: Military Commission Act of 2006 (MCA). Not only did the MCA establish the creation of military commissions, which can only be considered as valid under the rule of law if a State is engaged in an internationally recognized armed conflict, but it clearly affirmed without a doubt that Congress was finally recognizing that it had a significant role to play in a variety of legal issues associated with the “enemy combatants” - both lawful and unlawful - that seek to do great physical harm to the United States and its allies. To this end, the MCA provides firm statutory definitions concerning a wide variety of terms. For instance, the MCA defines in precise language who the enemy is in the War on Terror. Unlawful enemy combatants are defined as follows:

(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda,  or associated forces); or

(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

Finally, Congress has elected to provide sustained funding to all aspects of the War on Terror to include construction of detainee camps and the protracted use of military force. As a practical matter, Congress can express its will by virtue of its “power of the purse.” War on Terror could not continue without Congressional support.

IV. JUDICAL BRANCH

Given that the actions of the executive and legislative branches of government have embarked on uncharted legal territory in utilizing the law of war against the al-Qa’eda and al-Qa’eda-styled terrorists, it is somewhat surprising that the judicial branch of the government which consists of the federal district, federal circuit, and Supreme Court has not been as active in issues related to the War on Terror as one might expect. The reason for this inactivity is best viewed from two perspectives. First, in the American system, federal courts have traditionally avoided involvement in national security concerns, preferring that the matter be left to the legislature and executive, which are directly accountable to the people. Second, particularly from the perspective of the Supreme Court, federal courts realize that bad decisions will become entrenched in the case law of the nation and can serve as a magnet for the development of even more problematic decisions.

Still, the federal courts have issued a variety of rulings in the years since 2001, the most important ones, of course, coming in 2004 and 2006 from the United States Supreme Court. In 2004, both critics and supporters of the United States government waited with great anticipation to see whether or not the Supreme Court would insert itself in the War on Terror. On June 28, 2004, a badly fractured Supreme Court issued three decisions—Hamdi v. Rumsfeld, Rumsfeld v. Padilla, and Rasul v. Bush. Despite that fact that three cases emerged from the Court one thing that was certain was that the judiciary was not going to engage in micro-management or assert a co-equal role in the War on Terror.

Despite the fact that the Court was very concerned about due process matters, the most remarkable theme from the Court was that it acknowledged the proposition that the United States was at war. In Hamdi, a plurality opinion (8–1) by Justice O’Connor, the Court affirmed the notion that a state of “war” existed. Accordingly, the Court correctly noted that “there is no bar to this Nation’s holding one of its own citizens as an enemy combatant” but remanded the case to give United States citizen Hamdi a “fair opportunity to rebut the Government’s factual assertions [that he was an enemy combatant] before a neutral and detached decision maker.” In Padilla (5–4), the Court sidestepped the legal issues and dismissed Jose Padilla’s habeas petition without prejudice since, they concluded, he had filed in the wrong federal district court. In Rasul, the Court held (6–3) that suspected al-Qa’eda and Taliban personnel have a right to file petitions for writs of habeas corpus to contest their detention. The Court held that “aliens held at the base [Guantanamo, Cuba], no less than American citizens, are entitled to invoke the federal court’s authority,” and “what is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be innocent of wrongdoing.”

What these early cases demonstrated was that the Court was deeply divided and confused about developing the line where traditional criminal law jurisprudence ends and law of war jurisprudence begins. In Hamdi, Justice O’Connor said the Court “made it clear that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.” Still, the decision certainly upheld the right of the government to do what it had traditionally done in previous wars - detain indefinitely without criminal charge enemy combatants outside the regular parameters of the judicial system.

In the much anticipated 2006 decision of Hamdan v. Rumsfeld, a deeply divided Court again provided much needed guidance when it ruled that military commissions to try illegal enemy combatants had to be created by Congress, not the President. In so doing, the Court held that Common Article 3 of the Geneva Conventions applied to the detainees – another recognition that the law of war had to be applied.

Even the Al Odah v. United States and Boumediene v. Bush (2008) decisions

V. INTERNATIONAL ORGANIZATIONS

A final component of how to view the War on Terror comes from international law.

VII. CONCLUSION

The key issue in viewing the War on Terror as a real war, rests in the fact that the law of war was never really envisioned to cover a conflict between a non-State group, such as al-Qa’eda, and a State. While other nations such as France, England, and Russia have simply expanded their domestic law to allow for greater flexibility in confronting al-Qa’eda and al-Qa’eda-styled terrorism, the United States has both expanded its criminal domestic law and reached into the international law of war.

The justification for using the law of war rests with the characterized of the al-Qa’eda terrorist group as an entirely new type of entity in the world - not just a terrorist group but a “virtual State” that normal criminal law processes simply cannot curtail. The virtual State description is fundamentally valid since the al-Qa’eda network exhibits many of the characteristics of the classic nation-State, except that it has no fixed national boundaries. For instance, the al-Qa’eda has a political arm that directs its policy, a media element for propaganda, a military composed of thousands of devoted killers, a treasury that raises funds across the globe, a large number of supporters and adherents, direct and indirect links to the leaders of other nation-states, and a mission statement that reflects a desire to engage in global warfare.

Prior to 9/11 the United States was content to employ its domestic criminal law to investigate and prosecute al-Qa’eda-styled terrorists. For example, the ten Islamic extremists charged with a series of crimes to include the 1993 bombing of the World Trade Center in New York - Sheik Omar Abdel Rahman, El Sayyid Nosair, Ibrahim El-Gabrowny, Clement Hampton-El, Amir Abdelgani, Fares Khallafalla, Tarig Elhassan, Fadil Abdelgani, Mohammed Saleh, and Victor Alvarez - were convicted on January 17, 1996, following a nine-month jury trial in the United States District Court for the Southern District of New York.

Following 9/11 the United States supplemented normal criminal law enforcement methods with the use of its military power to make war on the al-Qa’eda-styled terrorists. This new approach - employing the law of war - is clearly a bold new step that stretches the law of armed conflict in ways that it was not indented. Due to the universalist designs of al-Qa'eda and al-Qa'eda-styled militant Islam, however, the combination of traditional law enforcement with the more muscular use of military force is essential. The one dimensional use of the criminal justice system, used so ineffectively in the 1990’s, cannot confront an ideology of hate able to recruit tens of thousands of followers and field terrorist cells throughout the world. Although many in the world community (and some in America) view the War on Terror as a criminal justice matter only, the United States government clearly views the struggle as a real war against al-Qa’eda-styled fanatics.

Consequences of approaching the matter from a law of war perspective include not only a plethora of policy and legal challenges, many not yet fully appreciated, but also confusion from the general population. Unfortunately, this state of confusion often emanates from the government itself, particularly when it sends mixed signals in terms of where it chooses to prosecute al-Qa’eda terrorists. If al-Qa’eda terrorists are unlawful enemy combatants and the United States is at war, then all should be treated as such and tired (sic) by military commissions and not by domestic federal courts, e.g., Richard Reid and Zacarias Moussaoui.

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Notes:

* Professor of Law and Director, Center for Terrorism Law, St. Mary’s University School of Law. B.A. (with honors), University of Maryland, 1976; J.D., University of Alabama School of Law, 1979; L.L.M., The Judge Advocate General’s School of Law, 1987; L.L.M., University of Virginia School of Law, 1992; S.J.D., University of Virginia School of Law, 1994.

[1] David Jackson, Iran, Iraq Top Agendas for Meetings with Allies

Posted August 18, 2008 at 6:20 PM PDT


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