Which paradigm should apply in the war on terror?
Kenneth Roth, executive director of Human Rights Watch, poses this question and others in an essay which appears in the Jan/Feb 2004 edition of Foreign Affairs. Mr. Roth argues that America has waged a metaphorical war on terrorism without necessarily meeting all of the requirements for such a war, and that we have abused many domestic and international norms of law in the process. Mr. Roth's argument is the latest in a chorus of such arguments from legal scholars such as Laurence Tribe, David Cole, and Kathleen Sullivan. Here's a brief excerpt from the piece:
What are the boundaries of the Bush administration's "war on terrorism?" The recent battles fought against the Afghan and Iraqi governments were classic wars between organized military forces. But President George W. Bush has suggested that his campaign against terrorism goes beyond such conflicts; he said on September 29, 2001, "Our war on terror will be much broader than the battlefields and beachheads of the past. The war will be fought wherever terrorists hide, or run, or plan."Analysis: Mr. Roth states his case well, but I disagree with some of the fundamental assumptions and linkages in his argument. I also disagree with his conclusions, including his three-part test for determining if the laws of war apply.
This language stretches the meaning of the word "war." If Washington means "war" metaphorically, as when it speaks about a "war" on drugs, the rhetoric would be uncontroversial, a mere hortatory device intended to rally support for an important cause. Bush, however, seems to think of the war on terrorism quite literally -- as a real war -- and this concept has worrisome implications. The rules that bind governments are much looser during wartime than in times of peace. The Bush administration has used war rhetoric precisely to give itself the extraordinary powers enjoyed by a wartime government to detain or even kill suspects without trial. In the process, the administration may have made it easier for itself to detain or eliminate suspects. But it has also threatened the most basic due process rights.
By literalizing its "war" on terror, the Bush administration has broken down the distinction between what is permissible in times of peace and what can be condoned during a war. In peacetime, governments are bound by strict rules of law enforcement. Police can use lethal force only if necessary to meet an imminent threat of death or serious bodily injury. Once a suspect is detained, he or she must be charged and tried. These requirements -- what one can call "law-enforcement rules" -- are codified in international human rights law.
In times of war, law-enforcement rules are supplemented by a more permissive set of rules: namely, international humanitarian law, which governs conduct during armed conflict. Under such "war rules," unlike during peacetime, an enemy combatant can be shot without warning (unless he or she is incapacitated, in custody, or trying to surrender), regardless of any imminent threat. If a combatant is captured, he or she can be held in custody until the end of the conflict, without any trial.
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The United States should not lightly suspend due process rights, as the Bush administration has done with its "enemy combatants" -- particularly when a mistake could result in death or lengthy detention without charge or trial. Law-enforcement rules should presumptively apply to all suspects in the "war" on terror, and the burden should fall on those who want to invoke war rules to demonstrate that they are necessary and appropriate.
The best way to determine if war rules should apply would be through a three-part test. To invoke war rules, Washington should have to prove, first, that an organized group is directing repeated acts of violence against the United States, its citizens, or its interests with sufficient intensity that it can be fairly recognized as an armed conflict; second, that the suspect is an active member of an opposing armed force or is an active participant in the violence; and, third, that law enforcement means are unavailable.
Within the United States, the third requirement would be nearly impossible to satisfy -- as it should be. Given the ambiguities of terrorism, we should be guided more by Milligan's affirmation of the rule of law than by Quirin's exception to it. Outside the United States, Washington should never resort to war rules away from a traditional battlefield if local authorities can and are willing to arrest and deliver a suspect to an independent tribunal -- regardless of how the tribunal then rules. War rules should be used in such cases only when no law-enforcement system exists (and the other conditions of war are present), not when the rule of law happens to produce inconvenient results. Even if military forces are used to make an arrest in such cases, law-enforcement rules can still apply; only when attempting an arrest is too dangerous should war rules be countenanced.
Here is my response to Mr. Roth's argument (I apologize for the length):
(1) "[President Bush's] language stretches the meaning of the word 'war.'" I don't think so. Historically, "war" has denoted and connoted a broad range of circumstances, from a latent state of war between hostile empires, a particular campaign, or a particular engagement. The word is imprecise because states have waged war in different forms throughout history. In addition to referring to different levels of intensity, "war" refers to different types of conflict -- from wars waged on other states to wars waged on movements. Today, our enemies have declared war on us. (See Al Qaeda's 1998 declaration of holy war against the United States.) Theoretically and practically, it is possible that a state of war exists between the United States and Al Qaeda. But that's really not even required, for as Mr. Roth acknowledges, the laws of war only require that a state of "armed conflict" exist.
The real question is whether a state of armed conflict (or war) can exist between a state (the U.S.) and a non-state actor (Al Qaeda). That's a theoretical question that international lawyers have been puzzling over for some time. Mr. Roth makes a conclusory argument that Al Qaeda's actors look more like criminals, therefore we can't fight a war against this group. I'm not so sure. I think we now face a 4th Generation adversary that disdains the contemporary norms of international relations, and considers definitions like "state" to be irrelevant facets of Western-dominated international law. Whether we label Al Qaeda as a criminal enterprise or warmaking entity, we're pounding a square peg into a round hole. But if we label them a criminal enterprise, then we limit ourselves to the tools of law -- not war. To effectively fight Al Qaeda, we need a multi-faceted approach which incorporates legal, financial, military and intelligence tools. Therefore, we must wage a "war" against this group that enables us to bring those tools to bear.
(2) "In peacetime, governments are bound by strict rules of law enforcement. . . . In times of war, law-enforcement rules are supplemented by a more permissive set of rules: namely, international humanitarian law, which governs conduct during armed conflict." This is a false dichotomy. It uses time as the independent variable to determine which set of rules should apply. First, peace and war are not mutually exclusive -- they can occur simultaneously. Second, peace and war are not binary options, and they never have been. I conceptualize of peace and war as a continuum, which includes various forms of peace and war that blur in the middle. Somewhere in that blurry middle, we can place terrorism, although certain terrorist acts fall closer to the peace end (e.g. kidnapping for ransom) or the war end (e.g. the 9/11 attacks) of the continuum.
Mr. Roth's false dichotomy infects the rest of his argument. His basic argument is that America is not at war, therefore, we should apply the rules of peacetime law enforcement to the conflict. That doesn't pass the common sense test, let alone the intellectual rigor that I would expect from an article in Foreign Affairs. Some legal scholars might say that only a "state of war" can trigger the laws of war, but the international consensus says otherwise. Presumably, Mr. Roth falls into this group. But the international legal consensus is that a de facto state of "armed conflict" triggers the laws of war, not a de jure state of "war." Armed conflict is defined in functional terms, unlike a state of war which is triggered by a formal state of belligerency between two states. It is possible to define peace and war in temporal terms, geographical terms, and situational terms. I wish things were as black and white as Mr. Roth's argument, and that we could easily put things in their "war" and "peace" cubbyhole. But we can't -- we need to adapt rules and norms to fit the gray area that we now find ourselves in: somewhere in between war and peace.
(3) "If law-enforcement rules are used, a mistaken arrest can be rectified at trial. But if war rules apply, the government is never obliged to prove a suspect's guilt. Instead, a supposed terrorist can be held for however long it takes to win the "war" against terrorism. . . . Washington must also remember that its conduct sets an example for governments around the world. " I'm not so sure this argument works. It is important to retain the moral high ground in our war on terrorism. To do so, we must fight according to the laws of war and act in accordance with the U.S. Constitution. But nowhere does the law of war or the U.S. Constitution restrict the ability of the President to fight a just war with just means. To do so would transform both documents into a suicide pact, to use Justice Robert Jackson's oft-cited phrase. The law of war does not strip a state of its sovereign right to fight a war in self-defense, nor does the Constitution do so. Instead, these sources of law constrain the President's abilility to fight a war.
Congress granted the President legal authority after the 9/11 attacks in Public Law 107-40 to wage war against Al Qaeda; it also granted the President the legal authority to wage war on Iraq in Public Law 107-243. Congress has subsequently ratified its grant of power by funding the President's military, legal, financial and intelligence operations. Both the U.N. and NATO blessed the U.S. response to the 9/11 attacks, although some debate exists as to the extent or scope of those authorities.
However, there may be some things we can do better to maintain the moral high ground, and here I think Mr. Roth has a point. Right or wrong, America's treatment of prisoners at Guantanamo Bay has earned the scorn of the international human rights community, as well as most of Europe. America ought to do some things better there, like hold Art. V tribunals for the detainees to decide the issue of formal POW status. Our national decision to ignore the UN Security Council to wage war on Iraq has also earned us scorn from various quarters of the world. This may have been the right decision, but we must recognize that pressing forward in Iraq without UN sanction had a cost in terms of international prestige and legal legitimacy. Terrorism experts such as Rohan Gunaratna, Bruce Hoffman, Ian Lesser, and others have stressed the importance of a global coalition for the global war on terror. Unlike a nation-state, we can only defeat this threat with support from abroad, because it takes such support to track down Al Qaeda's leaders, cripple its finances, hinder its travel, and dismantle its organization. We must hold the moral high ground in order to maintain this support from our allies.
(4) Roth makes several arguments with respect to the detention of enemy combatants, and tries to say that Ex Parte Quirin should not apply to the cases of Hamdi, Padilla and al-Marri who are now being held as such.
- "First, the saboteurs in Quirin were agents of a government -- Germany's -- with which the United States was obviously at war. Whether the United States is actually at "war" with al Qaeda, however, remains uncertain under the law." Maybe... but I think it's pretty clear that we're in a state of armed conflict right now. A formal declaration of war is not necessary for a state of armed conflict, and a state of armed conflict is what is necessary for the laws of war to come into play. Combatant commanders have detained enemy soldiers as prisoners since the classical era, although prisoners were often executed or enslaved in ancient times. Chivalric codes changed this norm somewhat during the middle ages, although prisoners' fates often depended on their rank or class. In the modern era, the law of war has established rules for the capture and treatment of prisoners. But no one has suggested that a combat commander should not have the right to take prisoners, nor has anyone extrapolated that a nation should not be allowed to take prisoners in wartime.
- "Second, although the Court in Quirin defined a combatant as anyone operating with hostile intent behind military lines, the case has arguably been superseded by the 1949 Geneva Conventions (ratified by the United States), which, as noted above, rule that people are combatants only if they either are members of an enemy's armed force or are taking active part in hostilities." This misstates both the holding of Quirin with respect to enemy combatants and the definition of the Geneva Convention, found in Art. IV. In Quirin, the Court distinguishes between lawful combatants and unlawful combatants at page 31:
By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals. See Winthrop, Military Law, 2d Ed., pp. 1196-1197, 1219-1221; Instructions for the Government of Armies of the United States in the Field, approved by the President, General Order No. 100, April 24, 1863, sections IV and V.So Quirin didn't just limit its definition to those who operated with hostile intent behind military lines -- it defined an unlawful enemy combatant as one who did not obey the laws of war. Arguably, a terrorist who deliberately targets non-combatants for a political purpose is violating the laws of war. Also, I think you can analogize Jose Padilla to the German saboteurs in Quirin. Padilla sought to secretly reconnoiter U.S. targets for an Al Qaeda attack using a radiological dispersal device (aka "dirty bomb"). The German saboteurs sought to secretly reconnoiter and destroy various sites on the East Coast. Both disguised themselves as civilians; both sought to target non-combatants; both used their U.S. citizenship and language abilities to blend into the population. It's an imperfect analogy, but a good one in my opinion.
Second, Mr. Roth misstates the 3rd Geneva Convention's definition of a combatant. Art. IV contains several different definitions for a combatant, from members of regular armed forces to members of militias to members of civil defense groups. It's possible here that his editors forced him to oversimply his argument, but the result is an argument that's legally incorrect. Membership in an armed force or active participation in hostilities are part of the GC's Art. IV definition of a combatant -- but there's much more. Membership in a militia group can also make you a combatant; so can passive participation in hostilities, or limited participation. Moreover, the two parts don't have to occur simultaneously. A soldier is a lawful combatant (and therefore a lawful target) whether or not he's actively engaged in hostilities. Mr. Roth's argument only works if he can limit the definition of a combatant to a narrow group. Unfortunately, international law and custom defines a combatant as something much broader.
- "Moreover, Quirin only establishes who can be tried before a military tribunal. The Bush administration, however, has asserted that it has the right to hold Padilla, al-Marri, and other detained 'combatants' without a trial of any kind -- in effect, precluding serious independent assessment of the grounds for potentially lifelong detention." You can't have it both ways, Mr. Roth. At times, your organization and others have criticized the Bush Administration for its 13 Nov 01 order authorizing military tribunals, saying that such tribunals violate international law and U.S. law. Now, you say that Quirin only authorized the U.S. to hold military tribunals, and that such tribunals might be a better alternative to detention for Mr. Padilla and his enemy combatant brethren. Which one is it? I think that Quirin actually opines on both matters -- the definition of a combatant, and the proper disposition (military tribunal and execution) for such. I think it's still unclear whether the U.S. can apply Quirin to the facts of today's combatants, and use Quirin to support military tribunals and executions in these cases. But I'm surprised that Human Rights Watch is so willing to endorse the holding of Quirin.
- "Finally, whereas the government in Quirin was operating under a specific grant of authority from Congress, the Bush administration has acted on its own in taking the difficult decision to treat Padilla and al-Marri as combatants, without allowing the popular input that a legislative debate would provide." In December 1941, Congress declared war on Japan, Germany and Italy. In September 2001, Congress authorized the President to use force against Al Qaeda. The 1941 declaration formally checked the Constitutional box for a declaration of war, under Art. I. But legally, the Supreme Court and courts of appeal have held that a joint resolution of Congress is as good as a declaration of war. (See Doe v. Bush, ___ F. 3d ___ (1st Cir. 2003). So once again, Mr. Roth misstates the law in order to make his point.
(5) "The best way to determine if war rules should apply would be through a three-part test. To invoke war rules, Washington should have to prove, first, that an organized group is directing repeated acts of violence against the United States, its citizens, or its interests with sufficient intensity that it can be fairly recognized as an armed conflict; second, that the suspect is an active member of an opposing armed force or is an active participant in the violence; and, third, that law enforcement means are unavailable."
This test really seems like a threshold test for the conduct of warfare; it establishes criteria by which the U.S. can use the tools of war against a non-state actor like Al Qaeda. Again, I don't think that international law or American law compels such a conclusion. This solution sharply curtails the power of the President to act as Commander-in-Chief, and to take those actions he deems necessary to defend the United States against foreign and domestic threats. I think it's absurd that "Washington should have to prove, first, that an organized group is directing repeated acts of violence against the United States". Why? Why should America suffer repeated blows from an enemy just to make a legal case for its response? Why should we endure more American deaths than we have to? The Constitution doesn't require such action; neither does international law. Indeed, Art. 51 of the UN Charter allows for a response to an armed attack, yet Mr. Roth would constrain such a response.
Second, Mr. Roth's requirement for active membership in an armed force or active participation in violence ignores the nature of the threat we now face. Al Qaeda is not dangerous today because of its zealots who are willing to die for their cause. Al Qaeda is dangerous today because it has established cells and people around the world to provide financial, logistical, infrastructural, legal and organizational support. Without this global network, Al Qaeda is just a bunch of murderous, ideological thugs. America can't afford to limit its response to the actual trigger-pullers (or plane hijackers) in this organization -- we must root out the people who enable Al Qaeda to conduct terror operations around the world.
Finally, Mr. Roth's requirement for the unavailability of law enforcement doesn't make sense. Just as a craftsman employs different tools for different jobs, so too does America employ different tools of state for different enemies. Police officers and FBI agents are appropriate for certain threats, and indeed, for certain parts of the Al Qaeda threat like domestic sympathizers who raise money for the terrorist organization. But military and intelligence tools are appropriate for other parts of the threat, like Al Qaeda's command structure. Mr. Roth would circumscribe the use of those tools to the most narrow of circumstances, and I think that's a very risky thing to do.
Coda: Eugene Volokh cites to a couple of authorities for the well-settled legal proposition that America does not need a formal declaration of war under Art. I of the Constitution to be at war for legal purposes. (I make this point above, but it's always nice to bolster my argument with a note from my Constitutional Law II professor.) Eugene's right both as a matter of domestic law and international law. Domestic law recognizes Congressional joint resolutions as sufficient authority for the President to wage war, and President Bush has two such resolutions (Public Laws 107-40 and 107-243). International law really doesn't care about the distinction, since the laws of war are triggered by the de facto existence of "armed conflict", not the existence of a formal de jure state of war.