• 10 January 2011

Playing by the Rules: Combating Al Qaeda Within the Law of War

David Glazier - Loyola Law School Los Angeles

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The September 2001 Authorization for Use of Military Force (AUMF)1 permitted President Bush to wage war against those behind the 9/11 attacks, but the military actions that followed were largely divorced from governing international legal rules. President Obama has renounced some of the more extreme Bush positions but continues to employ measures notionally grounded in the law of war, including preventive detention, military trials, and lethal drone strikes, without serious effort to restore U.S. law of war compliance.

This failure has real consequences. Al Qaeda might have been militarily defeated in late 2001. But the failure to prevent the dispersal of senior leadership into Pakistan’s tribal regions and the emergence of cells in third countries means military measures can now be only a partial solution. Intelligence sharing, law enforcement cooperation, and winning support from Islamic populations to undermine terrorist financing and recruiting are now at least as important as military actions. Unlawful U.S. conduct chills international cooperation while providing the gist for adversarial propaganda efforts.

The lack of coherent legal grounding is both driving and complicating judicial review. The Supreme Court has already decided five “war on terror” cases,2 yet basic questions still lack definitive answers. Who can be killed or captured? How long can detainees be held? Under what conditions? How can they be interrogated? Where can they be tried? On what charges?

The Court’s decisions have actually confused these issues. In 2004 Justice O’Connor’s Hamdi plurality opinion held that detention was a “fundamental incident” of waging the conflict approved by the AUMF,3 implicitly assuming an international armed conflict. Two years later, Justice Steven’s Hamdan plurality opinion suggested this is a “non-international” conflict, governed by the Geneva Conventions’ Common Article 3,4 although the law of war provides no detention authority for such conflicts. Most recently the 2008 Boumediene decision found Guantánamo detainees had a constitutional right to habeas review but gave no guidance on applicable substantive law.5

This Article addresses this void by critically assessing what rules should govern “war” conducted as part of the larger legal and political effort to defeat al Qaeda. The law of war can provide authority for direct military action, preventive detention, and even military trials in ways that could facilitate U.S. national security objectives while maintaining international public support.

Some provisions, including the full Geneva Conventions, are logically inapplicable to fighting non-state actors. But this is a far cry from holding that no legal rules govern. To the contrary, other treaties and the large body of customary law applied in thousands of World War II war crimes trials should control. The law of war prevails as lex specialis during armed conflict, but international human rights law remains applicable, governing lacunae. So even if government lawyers correctly identified gaps in Geneva Convention applicability, this should have been only the beginning of their work.

 
I.
The Challenge

The legal basis for treating terrorists as criminals is indisputable. Multilateral treaties address specific terrorist acts. Many implicitly authorize universal jurisdiction, mandating offenders’ prosecution or extradition and obligating international cooperation within the criminal law paradigm. U.S. law provides significant prosecution authority including specialized offenses like providing material support and inchoate offenses such as conspiracy.

Proponents of alternate prosecution schemes, including hybrid courts and military commissions, overstate concerns about federal courts. Postulated difficulties in Fourth Amendment battlefield application, for example, is a total red herring since courts hold it inapplicable outside the United States.6 Experienced prosecutors also believe classified evidence is adequately addressed by the Classified Information Protection Act.7 A key advantage of federal trials is the legal legitimacy they confer and the resulting facilitation of international cooperation.

Nevertheless, al Qaeda’s size and remote location mandates a military response while criminal prosecution may be inadequate to incapacitate individuals who were captured before committing serious offenses or without admissible evidence. The law of war can be employed to advantage in these situations. An “enemy” may be attacked with lethal force, and soldiers, unlike policemen, need not ask for surrender first. Collateral civilian casualties are permissible if not disproportionate to the military advantage gained. The war paradigm authorizes liberal preventative detention and military trials for law of war violations. Detainees need only give “name, rank, and serial number,” but there are no explicit limits on the duration of interrogations or right to counsel.

Law of war reliance may better protect individual liberties than proposed hybrid court or special detention regimes. Terrorist threats have led other governments to accept expedient departures from ordinary criminal procedure, but the lack of any principled grounds raises the quandary of how they are to be cabined. The war paradigm, in contrast, is self-limiting; both domestic and international law establish prerequisites for its lawful invocation.

 
II.
Defining and Characterizing the War

The “war on terror” nomenclature is nonsensical, hampering identification of actual conflict parties. The AUMF is limited to “nations, organizations, or persons [who] … planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”8 Al Qaeda was the “organization” responsible for 9/11 while Afghanistan’s Taliban harbored them, so these are the only legitimate adversaries. The “War Against al Qaeda and the Taliban” (WAQT) is thus a more apt description. Some question the legality of fighting non-state actors, but precedents and international law’s expanding coverage of non-state entities and internal state actions both support it.

Armed conflicts are traditionally bifurcated as “international” or “non-international.” The former arise between states while the latter exist between a government and internal opposition. Nations long rejected external regulation of internal conflicts, insisting domestic opponents are common criminals. Participants thus have never been defined as “combatants,” and detention authority is left to domestic law.

Hamdan’s suggestion that the WAQT is “non-international,” that is, not between nations, is linguistically appealing but ignores underlying legal logic. Actual non-international fighters violate a duty of loyalty to the state they fight but get ordinary legal due process when prosecuted. Al Qaeda’s members owe the United States no loyalty nor is the conflict confined to a single state. To classify the WAQT as “non-international” requires asserting a right to dispatch military force into the sovereign territory of a neutral state to kill or snatch foreign nationals, to remove prisoners to territory under the belligerent’s control, and to detain or try them under whatever law the belligerent chooses. The modern development of both International Humanitarian and International Human Rights Law places this claim beyond reasonable belief. Semantically, the WAQT would best be described as “transnational” conflict. Between recognized “international” and “non-international” regimes, the former is both most defensible and consistent with past U.S. practice.

 
III.
Classifying the Enemy in the “War on Terror”

The most controversial U.S. conduct has been its treatment of detainees. Until early 2009 they were classified as “enemy combatants,” a term the Department of Defense made up, and denied protection under any recognized legal regime. International law clearly recognizes two legal classifications for participants in armed conflict, “combatants” and “civilians,” while some commentators argue “unlawful combatants” comprise a discreet third group.

The key right accorded combatants is immunity from domestic prosecution for wartime violence. Often called “the combatant’s privilege,” it is more important than prisoner of war (POW) status, which is the preoccupation of most commentators. Those classified as civilians receive greater humanitarian protection but violate ordinary domestic law by committing any acts of violence. Threat of criminal punishment for non-immunized conduct, not the promise of POW status, is the primary incentive for combatants to obey the law of war. But immunity comes with a substantial price. In exchange for the right to engage in violence, combatants may be attacked at almost any time and place, and may be detained for the conflict’s duration based solely on enemy affiliation.

According al Qaeda combatant status has several advantages. There would be no question of the legality of military action to kill its personnel without attempting their capture. Simply establishing a detainee’s al Qaeda status would justify detention for the duration of hostilities. Combatant status avoids criminal law’s limits on interrogations, and detainees characterized as such are subject to military trial for law of war violations. Potential downsides to this classification include facilitating self-portrayal as “warriors” engaged in jihad and legitimating attacks on actual military targets such as the Pentagon and the USS Cole.

The other indisputable option is characterizing the enemy as “civilians.” This category is broad—Additional Geneva Protocol I Article 50 says anyone not meeting legal criteria for combatant status is a civilian.9 British officers caught in Kuwait during Iraq’s 1990 invasion and U.N. peacekeepers have both been classified as civilians. The Fourth Geneva Convention gives belligerents significant flexibility to deal with civilians posing security threats, including “internment,” but detention must be reevaluated every six months.10 Civilians may only be attacked while taking “direct part” in hostilities, but classifying al Qaeda as civilians means they have no right to participate in hostilities, and any violent acts make them common criminals.

Although the existence vel non of unlawful combatants as a discreet category is debated, I conclude it is validly a subset of the combatant classification, applicable to persons who could be lawful fighters but for their failure to distinguish themselves from civilian populations. Unlawful combatants are entitled to treatment equivalent to that provided POWs but lose combatant immunity and are subject to ordinary criminal prosecution for any acts of violence committed. This view is consistent with the treatment of the Nazi saboteurs at issue in Ex parte Quirin.11 They were employed by the German military and issued uniform items so they could claim POW status if captured while landing on U.S. beaches. Had they continued to wear distinguishing clothing they could have sabotaged U.S. military targets without fear of prosecution. It was the effort to surreptitiously blend into the civilian population that rendered them “unlawful combatants.”

Pejoratively classifying al Qaeda personnel as “unlawful combatants” establishes a U.S. right to flexible targeting, detention, and more prosecution options, including both civilian and military trials, than are possible under either the traditional combatant or civilian classifications. Granting detainees protections equivalent to the customary rules governing POWs would also effectively silence much criticism.

 
IV.
Jus in Bello in a War Against al Qaeda

The United States can only expect international cooperation in the WAQT if it complies with the jus in bello, or law governing the conduct of hostilities. Unfortunately, the United State’s actions have fallen short in both the areas of battlefield conduct and detainee treatment even as it seeks to prosecute its adversaries for alleged law of war violations.

For example, although the government insists that al Qaeda’s lack of uniforms and military structure subjects them to criminal prosecution, U.S. special forces have also participated in Afghan hostilities in civilian clothes. Moreover, the United States employs civilian CIA personnel in combat roles, including conducting drone strikes on suspected terrorist leaders. Military forces have the same capabilities and are lawful combatants; CIA officers are not.

Launching strikes into non-belligerent nations such as Pakistan is also problematic unless the non-belligerent country either consents or is clearly failing to fulfill neutral responsibilities to deny use of its territory to the detriment of a belligerent. Pakistan has protested U.S. operations within its borders, and the law is on its side while it is making efforts to suppress these militants themselves.

U.S. treatment of detainees is also problematic with respect to who is being held and the conditions of their detention. While international law allows indefinite detention of both combatants and civilians posing a serious threat, there is real doubt about whether many detainees ever fell into one of these groups. The challenges facing the federal courts wrestling with Guantánamo habeas petitions demonstrate that the government must do a better job clarifying the legal rules governing who can be held. Serious factual issues in many detainee cases also require detailed review and highlight the need for more careful screening of any future captures. The existing Combatant Status Review Tribunal process seems adequate on paper, but lack of good faith efforts to obtain and objectively review all possible evidence undermines its credibility.

Legal standards governing detention conditions have been almost entirely ignored. Government officials proudly compare Guantánamo with modern U.S. prisons. But the law of war is quite clear that those preventively detained without criminal charges cannot be kept in prison facilities at all—they must be in camps with habitability standards comparable to those of the detaining power’s own military. Plans to replace Guantánamo by purchasing a stateside civilian maximum security prison highlight just how ignorant the government and public remain of this legal mandate.

The law of war confers tangible advantages over criminal law with respect to interrogation, but forbids not just torture, but any cruelty or physical coercion. While the Obama administration has halted the most egregious conduct, it relies on an Army field manual that was rewritten during the Bush years to include procedures of dubious legality. This is wholly indefensible given extensive civilian and military experience showing that lawful rapport building techniques are key to successfully eliciting reliable information.

The Guantánamo military commissions have been a legal and public relations disaster since their inception. Despite tangible improvements in the Military Commissions Act, they still remain legally flawed. To maintain international credibility and cooperation, they should be discontinued in favor of courts-martial (legally preferable for combatants) or regular federal criminal trials. Successful counter-terrorism requires effective international cooperation and undermining public support for America’s adversaries. Faithful U.S. compliance with the law of war is an important component of efforts to achieve these ends.

 

Conclusion

For almost nine years the “war on terror” has been treated as falling outside the express mandates of any legal regime. But as the Supreme Court of Israel held:

The saying “when the cannons roar, the muses are silent” is well known. A similar idea was expressed by Cicero, who said: “during war, the laws are silent” …. Those sayings are regrettable …. Every struggle of the state—against terrorism or any other enemy—is conducted according to rules and law…. There are no “black holes.”12

America should recognize this truth and place the WAQT on sound legal ground. Although actual military force can play only a modest part in a struggle requiring an effective overall legal and political grand strategy, the law of war provides useful tools that can aid in this effort.

  1. Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (codified at 50 U.S.C. § 1541 (Supp. III 2003)) {hereinafter AUMF}.
  2. Boumediene v. Bush, 128 S. Ct. 2229 (2008); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Rumsfeld v. Padilla, 542 U.S. 426 (2004); Rasul v. Bush, 542 U.S. 466 (2004); Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
  3. Hamdi, 542 U.S. at 518-19.
  4. Hamdan, 548 U.S. at 629-31.
  5. See Boumediene, 128 S. Ct. 2229.
  6. See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
  7. See, e.g., Richard B. Zabel & James J. Benjamin, Jr., In Pursuit of Justice 81-90 (2008), available at http://www.humanrightsfirst.info/pdf/080521-USLS-pursuit-justice.pdf.
  8. AUMF, supra note.
  9. Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of International Armed Conflicts art. 50, June 8, 1977, 1125 U.N.T.S. 438.
  10. Geneva Convention Relative to the Protection of Civilian Persons in Time of War arts. 42-43, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
  11. 317 U.S. 1 (1942).
  12. HCJ 796/06 Pub. Comm. Against Torture in Isr. v. The Govt. of Isr. {2006}, available at http://elyonl.court.gov.il/Files_ENG/02/690/007/A34/02007690.A34.pdf.

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