| |
April 13, 2002
Ethics & International Affairs Roundatble Discussion
Identifying Limits on a Borderless
Map
Richard Falk
Two requirements have governed my thinking about an appropriate response
to the attacks of September 11: the urgent need for action that would
greatly reduce the threat of future mega-terrorist incidents, and the
necessity of recognizing the appropriate legal, moral, and political
limits to waging a defensive war.
THE NEED FOR ACTION
In this essay, the need for action is taken for granted, given the
gravity of the harm inflicted in the form of an armed attack, thepersistence
of the threat posed by the proclaimed intentions and apocalyptic leadership
of Osama bin Laden, the demonstrated capability of al-Qaeda to carry
out such missions, the dramatic failures of prior reliance on law enforcement
techniques to apprehend and punish the perpetrators of major terrorist
acts, and the inadequacy of intelligence warnings and preventive actions
to provide societal protection. In essence, it would have been impossible
for the government of the United States to retain its legitimacy if
it had not responded as effectively as possible to the September 11
attacks. Indeed, to retain credibility, sovereign states must demonstrate
their capacity to provide security by acting decisively in emergencies
to mobilize the relevant resources at their disposal. The difficult
challenge was to translate this imperative for action on behalf of security
into effective policy directives, given the unprecedented nature of
this enemy. It was not a state, but rather a "network" with operational
nodes in sixty or more countries, including quite possibly the United
States; nor was it formally or openly associated with any particular
state or geographical area.
The decision by the Bush administration to launch a war against Afghanistan
as the first phase of an effective response was generally convincing.
There seemed to be strong evidence of the presence of bin Laden and
the al-Qaeda headquarters in Afghanistan, a presence made possible by
the Taliban regime. This regime was the embodiment of the most severe
variant of Islam ever translated into a governing process, and this
oppressive model of Islamic life evidently represented the visionary
goal of the al-Qaeda terrorist activity for the entire Muslim world.
The Taliban leadership was symbiotically linked to al-Qaeda and its
leadership. Osama bin Laden has been quoted on several occasions as
expressing his admiration for Taliban-style rule as correctly embodying
and prefiguring a desired Islamic political order. There have also been
several journalistic assessments, including by Ahmed Rashid, of the
degree to which Mullah Mohammed Omar has accepted the visionary orientation
toward the United States articulated by Osama bin Laden.1
As of late December 2001, the Afghanistan war had met its major early-stated
objectives, seemingly reducing significantly al-Qaeda's capabilities
to engage in global terrorism and seriously tarnishing its image as
a credible opponent of the United States in the context of a military
and civilizational encounter. Although the U.S. government did not rely
on a humanitarian intervention rationale, a beneficial side effect of
its military operations has been to emancipate the peoples of Afghanistan
from cruel and brutal rule, with improved opportunities of rescue from
the immediate threat of mass starvation and the deeper conditions of
extreme poverty, worsened by twenty-five years of war.
The victory in Afghanistan has by no means extinguished the September
11 threat, but it has decisively weakened al-Qaeda's capacity for mega-terrorist
activities originating in Afghanistan. Al-Qaeda's presence was so manifest
in Afghanistan that it seemed highly reasonable to hold this particular
sovereign state sufficiently culpable to vindicate recourse to war against
it: a war that aimed not only to destroy the al-Qaeda presence and to
capture or kill Osama bin Laden, but also to destroy Taliban rule. A
further goal of the war was to replace the Taliban with a government
that would not allow its territory to be used as a base for global terrorism
and would be more likely to respect basic human rights.
This fundamental encroachment on the sovereign rights of Afghanistan
took place without a specific mandate from the United Nations Security
Council, and without much evident consideration by the U.S. government
of prohibition by international law on recourse to war. Moreover, there
has been no attempt as yet to provide evidence that the Taliban regime
was specifically linked to the September 11 attacks, or even possessed
advance knowledge of the mission; thus the legal responsibility of Afghanistan
is at best indirect, consisting of its having harbored terrorists known
to be preparing and training for such missions. The undertaking of war
under these circumstances needs to be treated as an exceptional case
that does not set a precedent. Unfortunately, in entirely different
circumstances of unresolved struggles involving self-determination of
peoples, states such as India (Kashmir) and Israel (Palestine) have
invoked the U.S. response as validating their own escalation of violence
against alleged sources of terrorism, and the United States has acquiesced,
or in the case of Israel, provided explicit support. Additionally, Russia
and China have been able to intensify their repressive violence against
Chechnya's independence movement and Uighur separatists of Xinjiang
Province, respectively, without encountering a hint of criticism from
Washington. U.S. diplomacy has done little to restrict the response
to terrorism to the specific circumstances surrounding September 11.
What the Bush administration needs to stress above all is that it
is not beneficial to generalize the justifications for waging war against
the Taliban or to minimize the potential costs to world order and international
law of a failure to abide by the prohibition on the use of force against
a sovereign state. The normative framework of the UN Charter should
be reaffirmed: "Self-defense" against terrorism should be narrowly understood,
and the procedural obligation to validate uses of force by seeking approval
from the Security Council should not be abandoned for the sake of geopolitical
expediency. This concern is also relevant to post-Afghanistan phases
of the response to September 11, where I do not believe the case can
be reasonably made that normal inhibitions on the use of force and respect
for territorial sovereignty should be suspended.
Shifting the focus from effectiveness to limits of response brings
one immediately up against the unprecedented nature of the threat, and
the degree to which its removal challenges the moral, legal, and political
imagination. The first difficulty is associated with the interplay between
the right of self-defense and the nonterritorial extension of al-Qaeda.
As already discussed, it is important to interpret the right of self-defense
narrowly in general accordance with the spirit if not the letter of
the UN Charter, which in Article 51 restricts self-defense to situations
where a state has been the victim of an armed attack. It is desirable
to adopt a sufficiently flexible approach to self-defense that allows
a state victimized by mega-terrorism in the manner of September 11 to
respond in an effective manner even if this means acting outside the
letter of international law. Such a basis for response existed in this
instance by credibleinference and evidence that the target of military
action had a close and indispensable connection to both the harm inflicted
and the continuation of the capability and threat to inflict future
harm.
The second difficulty is to apply limits in the setting of "war" between
a nonstate, transnational network and the leading state, whose geopolitical
presence is global. This conceptual complication is novel, and also
raises questions about the practical and persuasive relevance of international
law and the Charter of the United Nations, both of which have articulated
norms almost exclusively on the assumption that rules governing the
use of force are based on conflicts between adversary sovereign states;
even in the UN setting, the claim of control is further acutely constrained
vis-à-vis a superpower (as acknowledged by the veto). What isneeded
to endow international law and UN authority with renewed authority is
to strike a reasonable and flexible balance between inhibitions on recourse
to force and defensive rights, taking into account such new developments
as the emergence of global terrorism and the rise of international human
rights.
The third difficulty is associated with the wide resonance of the
grievances associated with Osama bin Laden's campaign in the Islamic
world. To avoid aggravating the threat it is important not to inflame
anti-American sentiment further by military overreaction and diplomatic
missteps. It is also important to address grievances against the United
States, especially those associated with Palestinian self-determination
and Iraqi sanctions. A problematic aspect of this challenge is to correct
past injustices without seeming to reward terrorism. To beeffective
in the long run, a response must address the root causes of terrorism.
Emphasizing root causes reformulates the conventional way of thinking
about effectiveness, but it also offers a pragmatic rationale for imposing
strict limits on the response.
HAVE LIMITS BEEN RESPECTED?
The most useful source of limits is derived from the doctrine of just
war, based on the intertwined traditions of religion, morality, and
law. The essence of just war thinking is a conditioning of war upon
just causes, just means, and just goals. As argued, the September 11
attacks provide ample grounds for establishing a just cause, although
the nature of the cause is such that military means of response should
be kept subordinate to the extent possible. The nature of just means
is determined most authoritativelyby reference to the laws of war and
international humanitarian law, with especial attention to the duty
of belligerent parties to respect civilian innocence.
President Bush in his November 10, 2001, address to the United Nations
General Assembly asserted: "Unlike the enemy, we seek to minimize, not
maximize, the loss of innocent life." Some of the tactics relied upon
in Afghanistan raised doubts about the good faith of this claim. The
reliance on B-52 bombing, "daisy cutters," and cluster bombs resulted
in a large number of Afghan civilian casualties in a context in which
the U.S. combat casualties (as distinct from friendly fire and accidents)
were zero during this phase of the war, surely raising questions about
the way in which the war was fought and the degree of conformity with
the laws of war and just means. It should be pointed out, however, that
improvements in targeting and guidance technology have made weaponry
of the sort used in Afghanistan significantly more accurate than in
past wars, and capable of generally limiting direct applications of
force to what were believed to be military targets.
Disputes arose as to whether those who planned certain attacks were
mistaken about the military character of targets, and thus directed
military power against civilians. What is clear, and establishes a crucial
moral and legal distance between the terrorism of September 11 and the
Afghanistan war, is that civilian casualties were not the result of
deliberate actions. That said, more could and should have been done
to avoid civilian casualties, even if this meant taking somewhat greater
risks of enduring American casualties. The occurrence of civilian casualties,
however, is not evidence of departure from the norms of just war. The
main objective of just war thinking is to encourage practical morality
and to establish strict prohibitions on the deliberate killing of those
who are not participating as combatants. At the same time, by allowing
the opposing sides to invoke "military necessity" to validate acts that
produce civilian harm, there is an acknowledgment that just war may
result in extensive civilian death and devastation.
There are two grounds for concern. First, European media devoted far
more attention to Afghan civilian casualties than did their American
counterparts. As a result, many were left with the impression that the
avoidance of such casualties was not an official priority, especially
when compared with the huge attention given to Americans who died or
were wounded in the combat theater even as a result of accidents. Second,
there seemed to be little effort by the United States to use its influence
to ensure that its Afghan allies on the ground acted in accordance with
international law. The U.S. role in failing to restrain Northern Alliance
forces from massacring Taliban prisoners of war, especially in the course
of controlling the makeshift prison at Mazar-e-Sharif, has been convincingly
criticized by respected European journalistic observers.2
A BROADER MANDATE?
Where the just war framework seems most relevant is with respect to
the pursuit of just goals and the extent to which these goals are validated
by their genuine linkage to the just cause associated with an effective
response to the al-Qaeda threat. In this context, the ongoing debate
within the U.S. government and American think tanks about the military
extension of the war to Iraq illustrates the problem. To wage war against
Iraq would widen the agenda beyond the al-Qaeda threats to encompass
countries that are viewed as hostile to the United States. To the extent
that a genuine Iraqi threat exists it is not associated with terrorism
directed at the United States, but rather with Iraq's posing a regional
threat through the acquisition of weaponry of mass destruction and the
commission of crimes against humanity in Iraq itself. An extension of
the war to Iraq would arouse domestic criticism in the United States,
break the impressive degree of international unity supporting the U.S.
response to al-Qaeda, and awaken suspicions in the Islamic world that
an intercivilizational war was under way despite the reassurances of
American leaders to the contrary.
The most plausible interpretation of just goals would limit post-Afghanistan
operations to the nonmilitary domains of intelligence operations, cooperative
law enforcement, diplomatic leverage, and financial interdiction. In
these undertakings the efforts would be directed toward both the identification
and destruction of al-Qaeda cells, allowing for some blurred boundaries
between al-Qaeda and other political organizations that share al-Qaeda's
goals and methods. Such efforts would contribute to the counterterrorist
objective of restoring American security and weakening terrorist operations
of "global reach."
For this reason, a second limitation of great importance would be to
refrain from efforts to destroy political movements that engage in armed
struggles associated with limited, national ends. One thinks first of
Hamas and Hezbollah. Hamas, in particular, has openly avowed suicidal
attacks on Israeli civilian targets, and has caused great loss of life
by adopting horrifying tactics, as well as generated acute anxiety about
future attacks. But here the context is one in which Israel has also
directed its military power in such a way as to wage war against civilian
Palestinian society in a manner that relies on modes of violence that
are flagrant violations of international humanitarian law and are best
conceived of as a species of terrorism undertaken by a state. Hezbollah's
main violence was directed at the Israeli army of occupation in southern
Lebanon, and does not even qualify as terrorism by most accepted definitions.
To suppress Hamas and Hezbollah in the setting of the unresolved Israel-Palestine
dispute is to frustrate still further the Palestinian struggle to achieve
self-determination, and it would certainly feed the anti-American resentment
that already abounds in the Arab world. As a result, it might actually
increase the threats of future anti-American terrorism. At this point,
although the U.S. government is keenly aware of the nonmilitary aspects
of responding effectively to September 11, it has focused almost all
public attention on its military response. Such a focus has made sense
in relation to Afghanistan, but it will not subsequently. The U.S. government
has emphasized effectiveness, but not limits, and it has encouraged
a surge of patriotism that is resistant to self-criticism. As a result,
there is a tendency to downplay the risks of a military overreaction,
and to neglect the challenge of the deeper roots of terrorism. Influential
pundit-scholars, most notably Bernard Lewis, have argued that weak resolve
by the United States in the past has encouraged terrorists to take bolder
action, and that the best mode of response is one that exhibits a maximal
resolve.3 But this
kind of approach mirrors Osama bin Laden's outlook and could plunge
the world into an intercivilizational struggle. We can and must act
to avoid this outcome.
1
Ahmed Rashid, Taliban: Militant Islam, Oil, and Fundamentalism in Central
Asia (New Haven: Yale University Press, 2000). [Back]
2 See, for example,
Adam Roberts, "Crisis at Kunduz: The Coalition Must Make It Clear
That Surrendering Troops Will Be Treated Humanely," The Guardian,
November 24, 2001; Editorial Board, World Socialist Web site, "U.S.
War Crime in Afghanistan: Hundreds of Prisoners of War Slaughtered
at Mazar-i-Sharif," November 27, 2001; also "America's 'Killing Hour',"
Wall Street Journal, November 21, 2001. [Back]
3 See Bernard Lewis,
"The Revolt of Islam," The New Yorker, November 19, 2001, pp. 50-63,
especially pp. 60-63; also Lewis, "Did You Say 'American Imperialism?'"
National Review<SPclass=text9 an, October 17, 2001, pp. 26-30.
[Back]
[Return to top]
The Law's Response to September
11
Ruth Wedgwood
It is hard to watch a society's political virtues mocked as weakness
by an uncomprehending foe. The fireball attacks of September 11 against
the World Trade Center towers and the Pentagon consumed the lives of
more than 3,000 ordinary people—Americans and foreign visitors, businesspeople,
secretaries, schoolchildren visiting the Pentagon, travelers flying
home. Like Joseph Conrad's terrorist who wished to destroy pure mathematics
and settled for the Greenwich clock tower, this was an attack on civil
society and global economy, and worst of all, on the innocence of noncombatants.
The jujitsu of the al-Qaeda strategy is its exploitation of the civil
values we most care for—the protection of privacy, the celebration of
free association and speech, and the cultivation of a multiethnic democracy.
Osama bin Laden recruits his young men into militancy in mosques and
madrassas, even in the United States, taking advantage of the privacy
we extend to religious practice. He has sent his henchmen around the
country, to take jobs and gain technical training, using our freedom
of movement to prepare his weapons. And he has exploited as cover the
varied hues of America's faces, where no group is outside and everyone
appears to be local.
Al-Qaeda's hidden target is globalization as well as liberalism. The
full integration of the world economy supposes that borders are meant
to be freely crossed, and that aliens and citizens will converge in
their practical privileges. Yet, of a sudden, national allegiance seems
a necessary safeguard against jihad. Borders appear as castle walls
to ward off danger. And the ebullient optimism fueling economic growth
has taken a tumble, not simply from an oversupply of capital goods,
but from an undersupply of fellow feeling. A shared interest in prosperity
has not been enough to render benign alienage and the political erasures
of borders.
In this unwanted war of the worlds, America's necessary steps of self-protection
have not been easy to take. The longtime strategy of treating terrorism
as crime rather than war has supposed that the imprisonment and punishment
of a limited number of actors would strike fear in the rest, and accomplish
the goal of deterrence. We have hoped that the condemnatory label of
terrorism would suffice to discourage the violent acts of angry young
men in low-growth Muslim countries. But the poor fit of this paradigm
has become newly apparent. The punishment of death is victory in a martyr's
culture, and imprisonment can be prized as a form of suffering.
We tolerate multiple acts of individual and social violence as the
cost of safeguarding our privacy and liberty, demanding that the government
meet an extraordinary standard of proof before it can claim any power
over our person, acting with a retrospective rather than anticipatory
glance. But now the stakes seem different. We are not accustomed to
losing thousands of lives in the blink of an eye and the view of a camera.
We are not used to the malevolent leverage that lets a handful of men
multiply their destructive power through the ordinary instruments of
transport and commerce. The deliberate temperance and incompleteness
of criminal law enforcement seem inadequate to the emergency, when the
threat to innocent life has multiplied by orders of magnitude.
Bin Laden's interest in chemical, biological, and nuclear weapons
has been reported for years in the Arab-language press, and recent discoveries
in Afghanistan, on the computers and tablets left behind by fleeing
al-Qaeda members, has confirmed the frightening agenda. A state has
varied linkages and interests to moderate its behavior. But a single-purpose
international jihad-a transnational nongovernmental actor of new and
malign form-has little reason to stay within any past threshold of violence.
We recall with a shudder bin Laden's stated ambition to have a "Hiroshima-style"
event. We wonder why we did not take seriously the braggadocio of the
conspirators in the 1993 World Trade Center bombing, who announced that
their real intention was to topple the buildings across lower Manhattan.
The newly captured al-Qaeda training manual should further unnerve us,
for it instructs its jihad warriors to assume every appearance of normalcy,
in order to escape detection within Western civil society. Playing music,
shaving beards, wearing gold, associating with women, refraining from
open prayer, all are recommended and warranted as legitimate methods
of disguise. We may surely wonder how to tell fish from fowl.
We should long ago have acted to shut down bin Laden's training camps
in Sudan and Afghanistan—before al-Qaeda had time to train thousands
of young men in the techniques of terror. Sudan's offer to hand over
bin Laden in 1996 should not have fallen on deaf political ears, with
the disastrous decision to allow him to flee to a new lair in Afghanistan.
It was a sheer intellectual failure to suppose that admissible courtroom
proof, American-style, was the only relevant standard in assessing danger
and in justifying necessary acts of self-defense. And even if we were
inattentive at first, the deadly cavalcade of events across the decade
of the 1990s should have knocked us awake. We wished for a post-Cold
War dividend, and ended up cutting the American armed forces to two-thirds
of their former size, running our remaining troops ragged in overtime
peacekeeping and humanitarian intervention. Our preoccupation with other
people's problems in the interventionism of the 1990s, admirable as
it was, meant that we ignored the one greatest problem before us—the
escalating jihad against American personnel, property, and civilians.
The mortuary list spans the full decade: the 1992 bombing in Aden aimed
at American GIs bound for Somalia; the 1993 firefight in Mogadishu killing
eighteen Army Rangers, staged by fighters trained by al-Qaeda; the 1993
trade center bombing in New York City; the 1995 Riyadh training center
bombing; the 1996 bombing of the Khobar Tower barracks in Saudi Arabia;
the 1998 East African embassies bombings; the 2000 USS Cole bombing
in Yemen; and finally the events of September 11, 2001. Bin Laden seemed
to understand the American political rhythm—how much we would tolerate,
our difficulty in following patterns, the intervention of worldly distractions.
Wistful requests for cooperation from ambivalent governments in the
region were not going to turn the tide. Saudi Arabia executed the Khobar
Tower conspirators before the Federal Bureau of Investigation could
trace their sponsors' methods. Yemen similarly limited the FBI's inquiry
on its soil. The symbolic launch of American Tomahawk missiles against
bin Laden's training camps in Afghanistan and a pharmaceutical factory
linked to bin Laden in Sudan did not hinder his operations, but instead
damaged our credibility when American cabinet officers seemed unfamiliar
with the basic facts of target selection.
Now, at last, we understand that there is no immunity at the water's
edge, and that bin Laden's network is unrelenting in its appetite for
confrontation.
For lawyers, the hardest part is in coming to terms with the paradigm
shift: that terror can be war as well as crime, and that some of the
institutional habits from the past are no longer adequate to the problem.
One example is the blindman's bluff that separated domestic criminal
investigations and overseas intelligence collection. Bin Laden's terrorist
network operated onshore and offshore, yet the two halves of the U.S.
government could not share their pieces of the puzzle to allow anticipation
in real time. In the aftermath of the 1960s and 1970s, we banished intelligence
agencies to overseas collection, to avoid any chance that they could
misuse a stateside presence. To complete the firewall, federal criminal
agencies were told they could not disclose investigative information
to the intelligence agencies, except in limited circumstances—including
grand jury testimony (often the best source of human intelligence) and
domestic wiretaps. Overseas FBI offices were unable to collect information
beyond the limits set by their host governments. In short, no one in
the federal government had an integrated picture of al-Qaeda's activities,
and the split-brain model was made all the worse when the FBI stopped
talking to the White House. The names and aliases, the airplane tickets
and apartment rentals, the travel patterns and associations-investigation
of which might have allowed us to follow al-Qaeda conspirators as they
ventured offshore and back-were unfathomable to a government whose agents
were confined to half the picture.
A post-September 11 statutory reform agreed to by Congress and the
president newly permits the broad sharing of information between federal
criminal investigators and overseas intelligence operatives. It is limited
by a "sunset" provision—the statute will expire in four years unless
Congress renews it—and it still does not allow sharing with local security
officials and foreign intelligence services. But the proof will be in
the practice. To intercept attacks we need to act in real time, and
the pooling of information must be efficient and practical at the working
level as well as in policy circles. It takes a network to catch a network.
There are other more contentious issues in the new approach to terrorism,
and it has been salutary to debate them with a full airing of views.
Perhaps the most difficult is Attorney General John Ashcroft's decision
to permit the monitoring of conversations between a few post-September
11 detainees and their lawyers on a selective basis for intelligence
purposes. Why should this ever be permitted? Perhaps because lawyers
are often asked to carry messages for their clients. The lawyer's right
to disclose an ongoing crime does not solve the problem, since an honest
lawyer may not even realize the significance of the message he has been
asked to convey. Criminal networks can be run from jail. It has happened
in organized crime cases. We take that chance and shelter the lawyers'
conversations in ordinary times. But allowing an al-Qaeda leader freely
to pass instructions to his outside network portends disaster. Communications
used to commit a new crime are not protected, but this also does not
solve the problem since the suspect communication will not otherwise
be known to public safety authorities absent the monitoring.
Yet the fair trial concerns are also evident. It is fundamental to
the constitutionally protected right to counsel that a defendant should
be able to confide in his lawyer, without fear that secrets will be
revealed at trial. But it is some cause for comfort that like problems
have been managed in the past. Even in quieter times, a foreign government
office may be monitored for threat-based intelligence purposes while
a defense lawyer is representing a criminal defendant at the foreign
government's behest. The possibility of overhearing the defense lawyer
calling the foreign government office is unwelcome, yet often unavoidable.
The usual solution, which has worked well in practice, is to separate
the prosecutorial trial team from the intelligence-monitoring team—insulating
the trial lawyers from any unfair anticipation of defense strategy or
other defense confidences. In the attorney general's order, any proposed
sharing of information from the monitoring has to be submitted to a
federal judge for review, and approved as unprivileged information.
Another contentious issue is how to handle any members of al-Qaeda
or senior Taliban who are captured on the battlefield in Afghanistan.
The members of al-Qaeda have violated the laws of humane warfare in
their attacks against civilian targets and in their tactic of disguising
themselves as civilians. The fundamental rule of armed conflict is that
combatants must not deliberately endanger civilians—either by choosing
them as targets, or by using a civilian disguise to mask plans for attack.
Al-Qaeda has done both. Al-Qaeda has deliberately killed innocent noncombatants
in the attempt to spread terror. Al-Qaeda's attacks on military targets
are also illegal because they were carried out in civilian disguise.
Members of al-Qaeda familiar with its criminal purpose can thus be arrested
for conspiracy to commit war crimes.
The current debate in the United States has centered on how to try
any such members of al-Qaeda. The president's executive order of November
13, 2001, establishing military commissions as an option for trial was
designed to meet three practical problems. First, we cannot afford to
have a criminal trial prejudice the intelligence sources and methods
needed to monitor al-Qaeda's ongoing activities. In the middle of a
war, it may be necessary to close some limited portions of a trial in
order to avoid endangering more lives. Second, we may need to consider
a broader range of evidence, including some forms of hearsay denied
to fact finders in an ordinary jury trial. A compartmentalized conspiracy
with a taste for retaliation may not be amenable to the usual more direct
forms of proof. And third, the simple physical security of a trial may
be hard to assure against a network that is so skilled in mounting military-style
campaigns. The American debate on the need for military tribunals has
been robust and useful. But it is interesting to note that organizations
such as the American Bar Association have come to agree that the modality
of military commissions may be necessary.1
The outgoing United States attorney in the Southern District of New
York, who has an extraordinary record in trying terrorist cases, has
also concluded that ordinary federal court trials may not be adapted
to the future practical problems of breaking the al-Qaeda network.2
A privileged prisoner of war is sometimes tried in the same mode as
his adversary's soldiers. But al-Qaeda members have not fulfilled the
prerequisite conditions of the Third Geneva Convention of 1949—failing
to observe the laws of war, or to wear identifying insignia, or to carry
arms openly—and may thus fairly be considered as "unlawful combatants."
The executive order seeks a "full and fair" trial, and detailed rules
for these military commissions are due to be issued. These are consistent
with our legal obligations under international law.
The other hard option that must be considered is the wartime prerogative
to detain opposing combatants until the conflict is over—even without
a trial for war crimes. In an ordinary war, enemy soldiers are interned,
under humane conditions, for the duration of hostilities in order to
prevent their return to the fight. There may be members of al-Qaeda
whom we choose not to try on criminal charges, yet detain as combatants
for a period of time. In an ordinary war, it is simpler to identify
the enemy combatants because they distinguish themselves by uniform.
And in an ordinary war, there is a government to negotiate surrender
and soldiers who will obey their government's commands. In the al-Qaeda
network, it is less clear whether any leader is capable of deactivating
the dispersed cells of actors. The attempt to take "surrenders" from
al-Qaeda fighters have been met with renewed violence on several occasions,
in betrayal of the promise of peaceable behavior that surrounds the
privilege of surrender. It may be hard to characterize when the conflict
with al-Qaeda is "over." It is hard to believe that we would contentedly
release captured combatants against whom we have strong (if imperfect)
evidence of active al-Qaeda membership. In the focus on military tribunals,
this circumstance of law and necessity has not been fully addressed,
but it may be a condition of the brave new world of jihad terrorism
that we simply cannot avoid.
Each war brings unanticipated challenges. With care and deliberation,
we must preserve our ethical ideals even while adapting the rules of
warfare and criminal adjudication to the new and unwelcome circumstances
of al-Qaeda's war against civilians.
1 American
Bar Association Task Force on Terrorism and the Law, "Report and Recommendations
on Military Commissions," January 4, 2002, available at www.abanet.org/leadership/military.pdf.
[Back]
2 Benjamin Weisner,
"A Nation Challenged:The Strategy-Ex-Prosecutor Wants Tribunals to
Retain Liberties," <Sclass=text11 panNew York Times, January 8,
2002, p. A13. [Back]
[Return to top]
The Laws of War: A Military View
William L. Nash
I served as a lieutenant in Vietnam. In June 1969, after being in
the country for about ten days, I saw my first combat action and it
was typically confusing. My platoon was on a reconnaissance mission
as part of a larger force when some members of the unit saw a few Vietcong
soldiers and began to pursue them through the jungle and marshland countryside.
The enemy soldiers were quickly cornered, one was captured, and at least
two more cowered in a streambed about 100 yards away. In circumstances
I do not fully understand to this day, there was gunfire, many vehicles
raced back and forth, and the two radios I was required to monitor broadcast
a confusion of chatter. Suddenly, on the higher command radio, I heard
the voice of our colonel: "Stop shooting; that's murder," he ordered.
The soldiers did stop shooting, the prisoners were secured, and we continued
our mission. But that single, short order had great impact on me. It
taught me more than any schoolhouse instruction ever could have about
the laws of war and how professional soldiers behave in combat.
The war on terror that resulted from the horrific attacks of September
11 has many facets. In addition to the obvious military and homeland
security issues, the intelligence, police, judicial, and financial aspects
mean there are many "rules" to be observed. It is not a simple process
to analyze these considerations. War under any conditions is a gruesome
endeavor. But, from the military perspective, the rules of concern are
the laws of war as provided by the Hague Convention of 1907, the Four
Geneva Conventions of 1949, and the 1977 Protocols to those Geneva Conventions.
While there are many other treaties concerning armed conflict, these
Big Three provide the majority of regulations. The United States has
not ratified the 1977 Protocols, but recognizes the majority of the
provisions as "customary international law." The treaties taken together
provide a framework by which international armed conflict is to be conducted.
Therefore, when U.S. military forces engage in combat, these laws apply.
These regulations as a whole address the methods and means of warfare
on the one hand, and the establishment of protections for the victims
of war on the other. Methods and means include the tactics, weapons,
and targeting decisions in war. Primary concerns are the nature of military
objectives, the elimination of unnecessary suffering, discrimination
between combatants and noncombatants, and issues of proportionality.
Protect-and-respect issues include the treatment of civilians, prisoners
of war, and the sick and wounded, and the requirements concerning the
responsibility of an occupying force.
The principles of the laws of war reflect the driving motivations
behind the laws' creation. According to the concepts of military necessity,
certain targets are prohibited. The principle governing military objectives
stresses that only those persons, places, or objects that make an effective
contribution to a military action may be targeted. All combatants must
also minimize unnecessary suffering, which is seen as the incidental
injury to people and collateral damage to property sustained during
a conflict. A crux of these principles lies in the concept of proportionality,
which dictates that the loss of life and property incidental to a military
attack must not be excessive in relation to the concrete and direct
military advantage expected to be gained.
The laws of war are not an abstract concept, or limited to customary
and conventional laws, but a reality enforced at the highest levels
of the U.S. government. A Department of Defense directive signed by
the deputy secretary of defense in 1998 mandates that law-of-war obligations
are to be observed and enforced; that all violations of the law of war
are to be promptly reported, whether committed by or against U.S. forces;
and that all components of the military services are to establish an
"effective program to prevent violations of the law of war." The directive
assigns specific responsibilities within the Defense Department and
establishes a formal Law of War Working Group, the purpose of which
is to "develop and coordinate law of war initiatives and issues, manage
law of war matters . . . and provide advice to the General Counsel on
legal matters covered by this Directive."1
In his implementing instructions to the Defense Department directive,
the chairman of the Joint Chiefs of Staff provides specific guidance
to his staff and combatant commanders to fulfill the necessary requirements.2
An example of staff responsibilities is the order to the director of
operations to ensure that all plans and rules of engagement are reviewed
for compliance with the law of war as defined by the directive. Even
more important, the chairman of the Joint Chiefs of Staff directs his
commanders to establish training and exercise programs to "improve evaluation,
response and reporting procedures" and to ensure that the command's
legal adviser reviews plans, orders and rules of engagement for the
conduct of combat operations.3
The United States Army promulgates its doctrine regarding the law
of war in Field Manual 27-10, The Law of Land Warfare</SPAN!. The
manual applies the internationally recognized law of land warfare for
the actualities of military conduct, providing "authoritative guidance
to military personnel on the customary and treaty law applicable to
the conduct of warfare on land and to relationships between belligerents
and neutral States." It reiterates the belief that the law of land warfare
is "inspired by the desire to diminish the evils of war" by protecting
"both combatants and non-combatants from unnecessary suffering . . .
safeguarding certain fundamental rights of those who fall into the hands
of the enemy, particularly prisoners-of-war, the wounded and sick and
civilians . . . and facilitating the restoration of peace." 4
The field manual specifically speaksto the "prohibitory effect" of
the law of war, limiting the exercise of a belligerent's power from
transgressing in those three fundamental areas. With regard to the principles
of humanity and chivalry, the law also requires that belligerents refrain
from any kind or degree of violence unnecessary for explicit military
purposes. Furthermore, the prohibitory effect of the law of war is not
superceded by actions borne out of "military necessity," that is, those
actions deemed necessary by a state in order to subdue an enemy as quickly
as possible. The manual adds that the ideal of military necessity has
been "generally rejected as a defense for actions forbidden by the customary
and conventional laws of war" inasmuch as those laws have been framed
with specific consideration for the concept of military necessity. The
manual also emphasizes that the law of war is applicable not only to
states, but also to individuals and, in particular, the members of armed
forces.5
The best way to illustrate how the United States Army approaches training
soldiers on their obligations in complying with the law of war is to
list "The Soldier's Rules," taught to all new soldiers in their initial
entry training:
Soldiers fight only enemy combatants.
Soldiers do not harm enemies who surrender. Disarm them and turn
them over to your superior.
Soldiers do not kill or torture enemy prisoners of war.
Soldiers collect and care for the wounded, whether friend or foe.
Soldiers do not attack medical personnel, facilities, or equipment.
Soldiers destroy no more than the mission requires.
Soldiers treat all civilians humanely.
Soldiers do not steal. Soldiers respect private property and possessions.
Soldiers should do their best to prevent violations of the law of
war.
Soldiers report all violations of the law of war to their superior.6
I served as a colonel in Operation Desert Storm. On the morning of February
28, 1991, I awoke at 6:30 a.m. after about three hours' sleep. We had
seized our final objectives four hours earlier, and most of the soldiers
had had very little sleep for the previous hundred hours. With the day's
first cup of coffee, I got out of my armored command vehicle to survey
the scene of my tactical command post and to clean up before the very
busy workday sure to come. One of the first things I noticed was a concertina
wire enclosure approximately twenty-five yards across with forty to fifty
Iraqi prisoners of war inside. Two soldiers guarded the prisoners. The
Iraqis were sitting on the desert floor in groups of three or four; it
was clear that they were tired, cold, and hungry. But before I could act,
I saw four American soldiers going toward the prisoners' enclosure with
their arms full of blankets and food rations. No orders had been issued;
training had taught the soldiersto do the right thing: the right thing
according to the laws of armed conflict.
1 Department
of Defense Directive 5100.77, DoD Law of War Program, December 9, 1998.
[Back]
2 One combatant commander
is the commander of Central Command, the organization fighting the
war in Afghanistan. [Back]
3 CJCJSI 5810.01A,
Implementation of the DOD Law of War Program, August 27, 1999. [Back]
4 U.S. Army Field
Manual 27-10, The Law of Land Warfare, July 15, 1976. [Back]
5 Ibid. [Back]
6 Paragraph 14-3,
Army Regulation 340-41, Training in Units, March 19, 1993. Guidance
with respect to how to teach these rules requires instructors to "stress
their military and moral importance." [Back]
[Return to top]
The "War" on Terrorism: A Cultural
Perspective
Fawaz A. Gerges
Clearly, Osama bin Laden does not subscribe to any international rules
in his unholy struggle against the world. The fatwa (religious ruling)
issued in February 1998 by the World Islamic Front for Jihad Against
Jews and Crusaders-the network of terrorist organizations bin Laden
established-holds that "to kill the Americans and their allies-civilians
and military-is an individual duty for every Muslim."1
It makes no distinction between noncombatants and combatants, viewing
civilians as soldiers in a zero sum confrontation.
Bin Laden claims that targeting American civilians is a legitimate
defensive act, because "Muslims believe that the Jews and America have
overplayed their hand in humiliating, degrading, and punishing Muslims."
Moreover, "these attacks on American targets are legitimate public reactions
by the Muslim youth, who are willing to sacrifice their lives to defend
their people and Islam."2
The Saudi dissident and his lieutenants further justify their bloody
deeds by arguing that the existing international norms are inadequate
to address their grievances because, in their view, the United States
dominates the system of states and controls its institutions, including
the United Nations.
Regardless of its veracity, this assertion sheds light not only on
bin Laden's twisted logic, but also on the need to affirm the moral
and political importance of existing international norms and rules.
In the quick unfolding of events, some observers and policymakers tend
to neglect and downplay the importance of this simple but powerful premise,
going so far as to advocate changing the rules of the state system by
pursuing an ambitious strategy to "end" states or regimes that support
terrorism. They argue that if we do not topple the existing regimes
that harbor terrorists, we will encourage people who hate us to continue
attempts to kill us in appalling numbers; states waging proxy wars are
by definition bound by no laws, and combating them on the contrary assumption
is to risk entering a one-sided suicide pact.3
This line of thinking fails to recognize that one of the major goals
of terrorists like bin Laden is to get rid of the existing norms and
rules governing the theoryand practice of international diplomacy. For
example, bin Laden has stated that his goal is to destroy the very foundation
of international relations and overhaul the system of power politics
that punishes Muslims and keeps them down. This is a revolt against
secular history and heritage and what he terms Western hegemony over
the lands of Islam: "This humiliation and atheism has ruined and blinded
Muslims. The only way to destroy this atheism is by Jihad, fighting,
bombings that bring martyrdom. Only blood will wipe out the shame and
dishonor inflicted on Muslims."4 Originally,
bin Laden hoped that in reaction to the killing of thousands of innocent
Americans, the United States would lash out angrily and irresponsibly
against Muslims, thus precipitating a clash of civilizations. Bin Laden
lost his gamble: the United States did not play into his hands by pursuing
a strategy that could have pitted the so-called camp of belief against
the camp of disbelief. The Muslim umma (worldwide Muslim community)
did not rise up and join the fray. Surveys show that 40 percent of Arabs
and other Muslims sympathized with bin Laden's criticism of the United
States and the pro-Western regimes it supports, but they rejected his
terrorist methods. It was only this group's apathy that enabled the
activist pro-bin Laden camp to misinform, propagandize, and distort
the political sensibilities of other Muslims.5
The Bush administration strategically used international institutions,
including the Security Council, to define the September terrorist attacks
as an R20;act of war" and to put together an international coalition
to attack and defeat the Al-Qaeda organization and the Taliban regime.
The Bush administration approach has found many supporters in the international
system, including many in the world of Islam. Although many Muslims
remain skeptical about the U.S. war against terrorism, they appreciate
its narrow focus and limited nature so far. The first phase of the U.S.
war against terrorism has achieved its stated purpose: the toppling
of the Taliban regime and destruction of the al-Qaeda networks in Afghanistan.
More important, the decisive military defeat in Afghanistan has discredited
bin Laden in the eyes of most Arabs and shattered his well-constructed
image of holy warrior. Bin Laden lost not only the war on the battlefield
but also the campaign for the hearts and minds of the "floating middle"
of Muslim public opinion. Even those Arab multitudes that initially
flirted with bin Ladenism out of anger with the United States have now
discovered that his inflated rhetoric was composed of thin air. However,
bin Laden's loss of the propaganda war does not imply that the United
States has won. Poll results show that anti-American sentiment is a
staple of Arab politics. Today, to be politically conscious in the Arab
world is to be highly suspicious of the United States, its foreign policies,
its values, and its institutions. For many Arabs and other Muslims the
United States has become a scapegoat for the ills and misfortunes that
befell their world in the second half of the last century.
The danger lies in the ambiguity of the U.S. strategy regarding the
next phase of the war. Will the Bush administration buy the argument
of the hardliners and expand the war to Iraq, thus sacrificing the legitimacy
principle at the altar of political and strategic calculations? Undoubtedly,
the United States possesses the military capability to win wars; yet
the real difficulty comes after victory on the battlefield. The U.S.
foreign policy establishment should not become so intoxicated with the
victory in Afghanistan that it loses sight of the complex realities
of world politics with its critical restraining mechanisms. The United
States will not be able to win the war on terrorism until it finds the
political will to invest in rebuilding decimated civil societies such
as Afghanistan, Pakistan, and even Iraq.
Bin Ladenism taps into the Arab sense of victimization and the deep
reservoir of accumulated grievances against the United States. With
the Taliban vanquished and the al-Qaeda network in Afghanistandestroyed,
the challenge facing the United States is to tackle the deepening anti-Americanism
in the region by reassessing the efficacy and fairness of its foreign
policies. The manner in which the United States conducts the struggle
against terrorism will ultimately determine the nature and character
of the Muslim response-either resistance or cooperation; it will also
determine the potential supply of suicidal foot soldiers to the unholy
war waged against the world, not just the United States, by those who
subscribe to bin Ladenism.
1 World Islamic
Front Statement, "Jihad Against Jews and Crusaders," available at www.atour.com/
news/international/20010928b.html. [Back]
2 See the recruiting
tape of Osama bin Laden, which I translated and edited with some colleagues
for Columbia University, available at www.ciaonet.org/cbr/cbr00.
[Back]
3 See, for example,
the thought-provoking essay by Fredric Smoler, "Fighting the Last
War-and the Next," American Heritage (December 2001), pp. 38-42. [Back]
4 See the recruiting
tape of Osama bin Laden. [Back]
5 See Fawaz A. Gerges,
"The Arab Tide Turns Against Bin Laden," Los Angeles Times, January
4, 2002. [Back]
[Return to top]
The Style of the New War: Making
the Rules as We Go Along
George A. Lopez
It is curious to note the evolution of discussions about the moral
and legal rules that apply in the fight against terrorism. Immediately
after September 11, when it was clear that the United States was going
to focus its new war within Afghanistan, the first question that arose
was how the United States was going to assess the deaths of Afghan civilians
as collateral damage. A second, major set of legal and ethical issues
developed around the Bush administration's declaration that those captured
in the war would face trial before military tribunals. And as the major
campaigns of the war have come to a close, the celebrated issue has
become the present and future legal status of the quite different fighters,
supporters, and operatives of al-Qaeda and the former Taliban government
who are in U.S. custody.
The prevailing U.S. government approach to the rules that pertain
to these concerns-and to the areas of concern examined by the Roundtable
essayists-has been to claim that the unprecedented nature and form of
the September 11 attacks warranted unprecedented means in response.
In short, new threats and actions by a new enemy demand new rules. At
the same time, U.S. government action seems to indicate that as these
rules take form and are implemented, they will continue to be adapted
to the new circumstances and the ongoing puzzles of this unique situation.
Clearly, the United States is developing the rules as it goes along
in this war. Such ad hoc rule making has not come out badly for the
United States, both as measured against some of the old rules and because
the "push" that such new dictates face has not yet come to "shove."
But soon it will. And the result will pose more complex and controversial
challenges than the new rules developed in the earlier phases of this
war. This demands a higher level of democratic discussion about which
rules apply to the issues of civilian casualties, military tribunals,
and the status of detainees.
CIVILIAN CASUALTIES
The U.S. approach to dealing with collateral damage in the form of
the death of Afghan civilians serves as a first area for deeper scrutiny.
As President Bush stated in his address to the General Assembly in November
2001, firmly embedded in the U.S. heritage of political and moral concerns
is the rule to limit the death of civilian nationals.1
Any fair assessment would conclude that in a number of ways, the first
phase of the war was demonstrably more humane-certainly in design, and
in much of its execution-than any previous U.S. war-waging enterprise.
The commitment to limit loss of civilian life during the massive bombing
that opened the U.S. military campaign in October was so strong that
pilots often checked with command headquarters in Florida to obtain
up-to-date intelligence for certain targets. This practice led some
political figures and news analysts to suggest that such efforts were
overly scrupulous and may have permitted key members of the enemy to
escape. However admirable this behavior during the early phases of the
war, as conditions have begun to shift on the ground, so too have the
rules that apply to Afghan civilian casualties. Since the installation
of the interim government, there have been more civilian casualties
per week from U.S. attacks than during the war to overthrow the Taliban.
Frustrated by the less-than-aggressive policy of an interim Afghan government
to capture and hold former Taliban and al-Qaeda members, anxious over
the continued elusiveness of the very top leadership of both the Taliban
and al-Qaeda, and still engaged in various actions of a police nature
against pockets of resistance, the Pentagon has now selected new targets,
many located in more populous areas.
Details about new missions of ground troops and Special Forces are
hushed. Secretary of Defense Donald Rumsfeld discusses civilian casualties
only in response to direct questions about them. Since mid-December
these "answers" have reiterated two themes: the responsibility for civilian
casualties rests squarely with the Taliban and al-Qaeda as they seek
to hide among the general population; and the Pentagon is not going
to keep track of civilian casualties or talk about them. The implication
is that no one is counting the dead because the numbers do not matter.
The doctrine of proportionality regarding the number of lives lost
in war (whether in international law or just war theory) never was meant
to be treated as a mathematical equation or an equal balance. But this
war situation places the United States in a unique position as more
information about the deaths of innocent civilians is revealed. The
number of deaths on the U.S. side continues to be revised downward from
the initial fear of some 7,000 dead in mid-September to an estimate
of 5,000 dead at the World Trade Center and, in early 2002, to just
under 3,000 people killed. Meanwhile, the civilian casualties mount
in Afghanistan beyond the 4,000 mark in what we are told is necessary
action to accomplish war aims. Without critical comment-and certainly
without the detailed discussion that has developed regarding military
tribunals-the press accepts the unwillingness of the Pentagon to discuss
any figures on civilian casualties. Moreover, the press has not been
reporting the myriad of alternative sources, from academics through
human rights NGOs, that are attempting to record civilian casualties
accurately.
MILITARY TRIBUNALS
For all the ambiguity ofdefinition and rules for dealing with those
captured in Afghanistan, this "learning as we go" approach may actually
be producing clarity and greater consensus regarding the development
of military tribunals. Ruth Wedgwood is among those who believe that
both prevailing international law and the exigencies of this situation
place the original Bush administration proposal on defensible grounds.
One reading of William Nash's essay is to interpret these tribunals
as a second-best alternative to existing mechanisms already available
in the military code of conduct. This difference represents one dimension
of what has become-to the surprise of many-a broad-ranging democratic
debate about military tribunals.
This debate has blossomed further into an evolutionary dialogue about
the political, philosophical, and legal dilemmas associated with military
tribunals, with the discussion quickly turning to the potential for
modifying the original idea put forward by the administration. The strong
critique included a thoughtful analysis by former president Jimmy Carter
in early December and a systematic exploration by Human Rights Watch
of the costs and benefits of the tribunal compared to viable alternatives.2
In stark contrast to their examination of other aspects of the war
on terrorism, such as prisoners and civilian casualties, the concept
of tribunals has been seized upon by the media for a wide range of open
debate. The venue has ranged from National Public Radio, with its balanced
pros and cons, through major and regional TV networks, as well as the
press, which have given more than equal time to those who argued that
the military tribunal approach was shortsighted. This has resulted in
greater caution, a toning down of administration claims about the necessity
of such a court, and the "floating" of a range of options.
By January 2002, and with an interim Afghan government in place, the
Bush administration was talking openly about modifications that would
occur should military tribunals be needed. Thus, without much political
fanfare, the indictment, arraignment, and pretrial procedures for the
suspected twentieth hijacker of September 11 proceeded without a hitch
within the existing U.S. federal court system in Virginia. And John
Walker Lindh, whom so many believed would come before a tribunal, was
handed over to the U.S. Justice Department to face criminal charges
of conspiring to kill Americans. This "learn as we go" approach regarding
courts and legal proceedings for the crimes of September 11 does appear
more democratized and productive in searching for the best option than
do actions in other areas of the conduct of the war. But the results
come less from administration leadership and conceptualization than
from the steadfast pressure of the broader civil society.
PRISONERS
As I write, in February 2002, the United States has announced that
it holds more than 300 members of the Taliban and al-Qaeda as "detainees"
and has transferred a number of them to a detention center at the Guantánamo
naval base in Cuba. Wedgwood and others argue that much of this action
seems consistent with prevailing international law. Human Rights Watch
and a host of other NGOs disagree, noting that specific legal and politicaldecisions
about the status of these fighters beyond the term "the enemy" or "illegal
combatants" or "detainees" must be designated, and that the individuals
held must be charged with a particular offense.3
From the Pentagon's point of view, decisions about
the legal status of prisoners should be left in abeyance, and the rules
governing them covered in generalities. But the circumstances of such
prisoners are beginning to defy this approach.
Along the way to defining and seemingly winning the first phase of
the war, the United States has developed an identity problem regarding
"the enemy" that has led to this current dilemma. By deciding (quite
possibly correctly, or at least within the realm of defensible action)
that the Taliban’s refusal to turn over bin Laden necessitated
bringing down that protective government structure as a means for catching
him, and for closing down much of al-Qaeda, the United States mixed
two (perhaps three) types of enemies as targets/foes/combatants.
First, the United States attacked the Taliban as an outlaw government
that harbors terrorists. This clearly made that government and its troops
the enemy of the United States in the (undeclared in a legal sense)
war on terrorism. In a declared war, the Taliban and its fighters would
fall under the rules of the Geneva Conventions. But U.S. actions seem
to counter this designation in favor of a more ambiguous "war" on terrorism,
which lends an equally nebulous status to all Afghan fighters and officials
captured in that war.
The United States might have opted for a different strategy and enemy
designation scheme. The recent history of the international community's
dealings with the Taliban provided ample cause for legally grounding
U.S. military action in existing Security Council resolutions, thus
making Taliban government officials and the Taliban army enemy combatants,
who constituted a "threat to international peace." As such, the Geneva
Convention rules would apply. But in the absence of such a specification,
we await the choice of rules.
This ambiguity may have been best exemplified in the case of Mullah
Zaif, the former foreign minister of the Afghan government to Pakistan,
who was captured on January 5, 2002. By late February, it was still
unclear whether Zaif would be considered a prisoner of war, as a former
government official who acted in defiance of Security Council resolutions,
or whether he will be protected by the diplomatic rules of various conventions.
That he was being interrogated and held was widely known, but his legal
status under interrogation remained unclear.
A second interpretation is that Taliban fighters and government officials
were the defeated side in a civil war, in which the massive aid and
actions of an external nation, the United States, helped the Northern
Alliance to topple a government. Under these conditions, international
principles that govern the conduct of internal and civil wars, with
its own set of Geneva Protocols, prescribe the rules. While it may be
neat and convenient to assume that all Taliban fighters supported bin
Laden, the truth is that many fighters were first motivated and then
captured while fighting under their local warlords, in their own civil
war. And ill-advised allegiance is not a war crime, save in a system
of victor's justice-which we would assume the United States must avoid.
Third, and most certainly, al-Qaeda members belong to an illegal organization.
The rules against them are different from those against Afghan warriors.
Surely the United States would not want to withdraw the applicability
of the Geneva Conventions from the latter force simply because it was
too poor to have uniforms and too poorly led to comprise much of a modern
fighting force. Al-Qaeda fighters who are not Afghans can be designated
and charged with any number of criminal offenses, depending on the evidence
against them. In all cases of current detainees, however, the United
States seems anxious to preserve the ambiguous status out of a desire
to continue interrogation for intelligence-gathering purposes. <DIVclass=para21Thus
we have an ambiguous and varied "enemy" as current detainee, not yet
classified as either prisoner of war or criminal terrorist. As the situation
develops, two issues heighten the puzzlement regarding why Washington
is so hesitant to designate a clear legal status for these individuals.
The first is that the actual treatment by the United States of the detainees
with regard to food, clothing, shelter, and care regarding religious
issues seems to fall well within the guidelines of the Geneva Conventions.
What falls outside those parameters is the right to legal counsel, resort
to secret interrogation, and failure to provide permanent housing. Second,
the quietest, yet most vigilantly concerned, sector of the United States
regarding this detainee ambiguity is the U.S. military. These officials
and soldiers know the potentially dangerous precedent that the absence
of legal designation may pose for U.S. service personnel captured by
an enemy in some future conflict. As the debate moves on, these voices
may well win concessions and clarifications from Secretary Rumsfeld
and the White House that civil society has not yet been able to obtain.
In a style that can only be labeled "making the rules as we go along,"
the U.S. administration's approaches to the new war on terrorism, from
its inception to its current police-style actions, have been modified-sometimes
by changing circumstances, sometimes by the heat of criticism or the
light of open discussion within the wider body politic. But some areas
of the war on terrorism have not evolved so productively. Despite the
early U.S. commitment to limit collateral damage, under the interimAfghan
government, U.S. forces are killing more civilians than during the air
and ground war. Continuing drama and legal ambiguities dominate the
holding and interrogation of the diverse fighters and former Taliban
operatives who are prisoners of the United States. Only in the area
of military tribunals have the wider civil society and the media had
an impact on deciding which rules apply to this new war. This may give
us some cause for celebrating the virtues of democracy. But the fact
that placing the war more centrally within the standards of Western
law must be achieved from the bottom up rather than through administration
leadership will continue to cause concern.
1
Remarks by the President to United Nations General Assembly, November
10, 2001, UN Headquarters, New York, New York : "We're making progress
against military targets, and that is our objective. Unlike the enemy,
we seek to minimize, not maximize, the loss of innocent life." [Back]
2 Remarks offered
by President Carter at the dedication of the Joan B. Kroc Institute
for Peace and Justice, University of San Diego, December 6, 2001;
Thomas Malinowski, "Court Martial Code Offers a Fair Way to Try Terrorist
Suspects," International Herald Tribune, December 29, 2001. [Back]
3 Thomas Malinowski,
"What To Do with Our 'Detainees'?" Philadelphia Inquirer, January
28, 2002; Background Paper on Geneva Conventions and Persons Held
by US Forces, Human Rights Watch, New York, New York, January 29,
2002. [Back]
|
|
