The Law of War in the War on Terror
By Kenneth Roth
From Foreign Affairs, January/February 2004


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Summary: The Bush administration has literalized its "war" on terrorism, dissolving the legal boundaries between what a government can do in peacetime and what's allowed in war. This move may have made it easier for Washington to detain or kill suspects, but it has also threatened basic due process rights, thereby endangering us all.
Kenneth Roth is Executive Director of Human Rights Watch.


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."

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.


LAW AT PEACE, LAW AT WAR

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.

These two sets of rules have been well developed over the years, both by tradition and by detailed international conventions. There is little law, however, to explain exactly when one set of rules should apply instead of the other. For example, the Geneva Conventions -- the principal codification of war rules -- apply to "armed conflict," but the treaties do not define the term. Fortunately, in its commentary on them, the International Committee of the Red Cross (ICRC), the conventions' official custodian, has provided some guidance. One test that the ICRC suggests can help determine whether wartime or peacetime rules apply is to examine the intensity of hostilities in a given situation. The Bush administration, for example, has claimed that al Qaeda is at "war" with the United States because of the magnitude of its attacks on September 11, 2001, its bombings of the U.S. embassies in Kenya and Tanzania, its attack on the U.S.S. Cole in Yemen, and the bombing of residential compounds in Saudi Arabia. Each of these attacks was certainly a serious crime warranting prosecution. But technically speaking, was the administration right to claim that they add up to a war? The ICRC's commentary does not provide a clear answer.

In addition to the intensity of hostilities, the ICRC suggests considering factors such as the regularity of armed clashes and the degree to which opposing forces are organized. Whether a conflict is politically motivated also seems to play an unacknowledged role in deciding whether it is a "war" or not. Thus organized crime or drug trafficking, although methodical and bloody, are generally understood to fall under law-enforcement rules, whereas armed rebellions, once sufficiently organized and violent, are usually seen as "wars." The problem with these guidelines, however, is that they were written to address political conflicts rather than global terrorism. Thus they do not make it clear whether al Qaeda should be considered an organized criminal operation (which would not trigger the application of war rules) or a rebellion (which would).

Even in the case of war, another factor in deciding whether law-enforcement or war rules should be applied is the nature of a given suspect's involvement. Such an approach can be useful because war rules treat as combatants only those who are taking an active part in hostilities. Typically, this category includes members of a military who have not laid down their arms as well as others who are fighting or approaching a battle, directing an attack, or defending a position. Under this rule, even civilians who pick up arms and start fighting can be considered combatants and treated accordingly. But this definition is difficult to apply to terrorism, where roles and activities are clandestine and a person's relationship to specific violent acts is often unclear.


HARD CASES

Given that so much confusion exists about whether to apply wartime or law-enforcement rules to a given situation, a better approach would be to make the decision based on its public policy implications. Unfortunately, the Bush administration seems to have ignored such concerns. Consider, for example, the cases of Jose Padilla and Ali Saleh Kahlah al-Marri. Federal officials arrested Padilla, a U.S. citizen, in May 2002 when he arrived from Pakistan at Chicago's O'Hare Airport, allegedly to scout out targets for a radiological ("dirty") bomb. As for al-Marri, a student from Qatar, he was arrested in December 2001 at his home in Peoria, Illinois, for allegedly being a "sleeper" agent: an inactive terrorist who, once activated, would help others launch attacks. President Bush, invoking war rules, has declared both men to be "enemy combatants," allowing the U.S. government to hold them without charge or trial until the end of the war against terrorism -- whenever that is.

But should Padilla and al-Marri, even if they have actually done what the government claims, really be considered warriors? Aren't they more like ordinary criminals? A simple thought experiment shows how dangerous are the implications of treating them as combatants. The Bush administration has asserted that the two men planned to wage war against the United States and therefore can be considered de facto soldiers. But if that is the case, then under war rules, the two men could have been shot on sight, regardless of whether they posed any immediate danger to the United States (although they might have been spared under what is known as the doctrine of "military necessity," which holds that lethal force should not be used if an enemy combatant can be neutralized through lesser means). Under the administration's logic, then, Padilla could have been gunned down as he stepped off his plane at O'Hare, and al-Marri as he left his home in Peoria. That, after all, is what it means to be a combatant in time of war.

But the Bush administration has not claimed that either suspect was anywhere near to carrying out his alleged terrorist plan. Neither man, therefore, posed the kind of imminent threat that would justify the use of lethal force under law-enforcement rules. Given this fact, it would have been deeply disturbing if they were shot as enemy soldiers. Of course, the White House has not proposed killing them; instead, it plans to detain the two men indefinitely. But if Padilla and al-Marri should not be considered enemy combatants for the purpose of killing them, they should not be considered enemy combatants for the purpose of detaining them, either.

A similar classification problem, although with a possibly different result, arose in the case of Qaed Salim Sinan al-Harethi. Al-Harethi, who Washington alleges was a senior al Qaeda official, was killed by a drone-fired missile in November 2002 while driving in a remote tribal area of Yemen. Five of his companions, including a U.S. citizen, also died in the attack, which was carried out by the CIA. The Bush administration apparently considered al-Harethi to be an enemy combatant for his alleged involvement in the October 2000 U.S.S. Cole bombing. In this instance, the case for applying war rules was stronger than with Padilla or al-Marri (although the Bush administration never bothered to spell it out). Al-Harethi's mere participation in the 2000 attack on the Cole would not have made him a combatant in 2002, since he could have subsequently withdrawn from al Qaeda; war rules permit attacking only current combatants, not past ones. And if al-Harethi were a civilian, he could not have legally been attacked unless he was actively engaged in hostilities at the time. But the administration alleged that al-Harethi was a "top bin Laden operative in Yemen," implying that he was in the process of preparing future attacks. If true, this would have made the use of war rules against him more appropriate. And unlike in the cases of Padilla and al-Marri, arresting al-Harethi may not have been an option. The Yemeni government has little control over the tribal area where he was killed; indeed, 18 Yemeni soldiers had reportedly died in an earlier attempt to arrest him.

Although there may have been a reasonable case for applying war rules to al-Harethi, the Bush administration has applied these rules with far less justification in other episodes outside the United States. For example, in October 2001, Washington sought the surrender of six Algerian men in Bosnia. At first, the U.S. government followed law-enforcement rules and secured the men's arrest. But then, after a three-month investigation, Bosnia's Supreme Court ordered the suspects released for lack of evidence. Instead of providing additional evidence, however, Washington simply switched to war rules. It pressured the Bosnian government to hand the men over anyway and whisked them out of the country -- not to trial, but to indefinite detention at the U.S. naval base at Guantánamo Bay.

The administration followed a similar pattern in June 2003, when five al Qaeda suspects were detained in Malawi. Malawi's high court ordered local authorities to follow the law and either charge or release the five men, all of whom were foreigners. Ignoring local law, the Bush administration then insisted that the men be handed over to U.S. security forces instead. The five were spirited out of the country to an undisclosed location -- not for trial, but for interrogation. The move sparked riots in Malawi. The men were released a month later in Sudan, after questioning by Americans failed to turn up any incriminating evidence.


A BAD EXAMPLE

These cases are not anomalies. In the last two and a half years, the U.S. government has taken custody of a series of al Qaeda suspects in countries such as Indonesia, Pakistan, and Thailand. In many of these cases, the suspects were not captured on a traditional battlefield. Yet instead of allowing the men to be charged with a crime under local law-enforcement rules, Washington had them treated as combatants and delivered to a U.S. detention facility.

There is something troubling about such a policy. Put simply, using war rules when law-enforcement rules could reasonably be followed is dangerous. Errors, common enough in ordinary criminal investigations, are all the more likely when a government relies on the kind of murky intelligence that drives many terrorist investigations. 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. And the consequences of error are even graver if the supposed combatant is killed, as was al-Harethi. Such mistakes are an inevitable hazard of the battlefield, where quick life-and-death decisions must be made. But when there is no such urgency, prudence and humanity dictate applying law-enforcement standards.

Washington must also remember that its conduct sets an example for governments around the world. After all, many other states would be all too eager to find an excuse to eliminate their enemies through war rules. Israel, to name one, has used this rationale to justify its assassination of terrorist suspects in Gaza and the West Bank. It is not hard to imagine Russia doing the same to Chechen leaders in Europe, Turkey using a similar pretext against Kurds in Iraq, China against Uighurs in Central Asia, or Egypt against Islamists at home.

Moreover, the Bush administration should recognize that international human rights law is not indifferent to the needs of a government facing a security crisis. Criminal trials risk disclosure of sensitive information, as the administration has discovered in prosecuting Zacarias Moussaoui. But under a concept known as "derogation," governments are permitted to suspend certain rights temporarily when they can show that it is necessary to meet a "public emergency threatening the life of the nation." The International Covenant on Civil and Political Rights, which the United States has ratified, requires governments seeking derogation to file a declaration justifying the move with the un secretary-general. Among the many governments to have done so are Algeria, Argentina, Chile, Colombia, Peru, Poland, Russia, Sri Lanka, and the United Kingdom. Yet the United States, determined to avoid the formal scrutiny involved, has not bothered.

The Justice Department has defended the administration's use of war rules by citing a U.S. Supreme Court decision from World War II, Ex Parte Quirin. In that case, the Court ruled that German army saboteurs who landed in the United States could be tried as enemy combatants before military commissions. The Court distinguished its ruling from an earlier Civil War-era case, Ex Parte Milligan, which held that a civilian resident of Indiana could not be tried in military court because local civil courts remained open and operational. Noting that the German saboteurs had entered the United States wearing at least parts of their uniforms, the Court in Quirin held that the Milligan protections applied only to people who are not members of an enemy's armed forces.

There are several reasons, however, why Quirin does not justify the Bush administration's broad use of war rules. 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. 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. Quirin thus does not help determine whether, under current law, people such as Padilla and al-Marri should be considered civilians (who, under Milligan, must be brought before civil courts) or combatants (who can face military treatment). 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. 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.


STAY SAFE

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.

This approach would recognize that war rules have their place -- but that, given the way they inherently compromise fundamental rights, they should be used sparingly. Away from a traditional battlefield, they should be used, even against a warlike enemy, as a tool of last resort -- when there is no reasonable alternative, not when a functioning criminal justice system is available. Until there are better guidelines on when to apply war and law-enforcement rules, this three-part test, drawn from the policy consequences of the decision, offers the best way to balance security and civil rights. In the meantime, the Bush administration should abandon its excessive use of war rules. In attempting to make Americans safer, it has made all Americans, and everyone else, less free.

http://www.foreignaffairs.org/20040101facomment83101/kenneth-roth/the-law-of-war-in-the-war-on-terror.html?mode=print

Combatants or Criminals? How Washington Should Handle Terrorists
By Ruth Wedgwood & Kenneth Roth
From Foreign Affairs, May/June 2004



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Fighting a War Under Its Rules

Ruth Wedgwood
Kenneth Roth chides the Bush administration for using armed force and the law of armed conflict to capture and detain al Qaeda's key operatives ("The Law of War in the War on Terror," January/February 2004). It is not clear, says Roth, that the "war on terrorism" is a real war, and in any event, U.S. criminal laws should be sufficient for dealing with the terrorists.

But a war is in fact raging, and criminal law is too weak a weapon. That was the lesson the United States learned too late, on September 11, 2001, after a decade of arresting and trying terrorist suspects. As a former head of the fbi's Joint Terrorist Task Force has remarked, the U.S. government could not stop al Qaeda bombings by treating them as ordinary homicides. Using such techniques, Washington did manage to take some people off the international street, but it was not able to shut down the offshore camps that taught thousands of al Qaeda recruits how to fight or wire deadly explosives. Nor could prosecutors compel Pakistani and Saudi intelligence agencies to stop subsidizing the Taliban and al Qaeda. Destroying the infrastructure of al Qaeda's operations has required diplomacy and the use of force as well as criminal law.

The purpose of domestic criminal law is to inflict stigma and punishment, and so it must be applied cautiously. Such reticence is proper for civil government in peacetime, but it is not always appropriate in war. Different priorities come to the fore when an international foe embarks on a campaign to kill or wound thousands of people. The law of armed conflict thus allows measures, such as the preventive internment of enemy combatants during the conflict, that do not require the full-dress procedure of criminal trials.

The difficulties of relying on criminal law, especially on its cumbersome standards of proof, may not be self-evident to nonlawyers. Roth suggests that criminal justice can provide all the tools necessary to defend a democratic public against catastrophic terrorism. But few criminal cases can be built on circumstantial evidence alone, and criminal proof demands near certainty -- or proof "beyond a reasonable doubt" -- a very high hurdle that even first-rate intelligence cannot usually meet. In a typical case, defendants cannot be arrested or sent to trial unless the state can find eyewitnesses or co-conspirators willing to testify against them publicly, braving the dangers of retaliation. Similarly, the rules of evidence used in criminal trials keep critical information out of the courtroom. Items that were seized without a search warrant or that lack a flawless chain of custody -- for example, the al Qaeda computer hard drives chock full of organizational data that a Wall Street Journal reporter found in a Kabul marketplace -- might not be admissible, no matter how important they are. Statements made by combatants in custody might also be rejected if the fighters were denied access to counsel at the time. Any defense lawyer sent to the battlefield would advise captured combatants to stop talking, undermining chances of uncovering timely intelligence about al Qaeda's plans. And criminal law requires that sensitive methods of surveillance be disclosed when they yield information offered as evidence, even though such transparency may prevent intercepting telltale signs of future attacks.

All these restrictions make sense in a civil society, where criminal law can provide adequate deterrence even with a limited success rate in the courtroom. But in the fight against al Qaeda and its compartmentalized network, deterrence does not work. There is no obvious way to dissuade fighters programmed by extremist cults or international terrorist organizations that are not bound by the commitments of nation-states. Half-measures will not do, because the stakes in this war are higher than in many others. Mistakenly releasing a single enemy soldier means little when battles are fought en masse. But in al Qaeda's asymmetric, high-tech campaign, it takes only a few combatants to destroy scores of innocent civilians. And al Qaeda remains keenly interested in using weapons of mass destruction.

Roth may doubt that the United States is at war, but it pays to ask the other side. Al Qaeda has declared jihad against the United States, and in fatwa after fatwa, Osama bin Laden has announced that all Americans are valid targets. The U.S. Congress has understood that threat well: after the September 11 attacks, it authorized the president "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons" (emphasis added). That resolution confirmed the constitutional authority of the president, as commander-in-chief, to capture and hold enemy combatants in an armed conflict, a practice that international law also permits during active fighting.

Common sense and proportionate rules of engagement are crucial, of course. No one is advocating shootouts at the landing gates of O'Hare Airport, as Roth seems to suggest. The U.S. government should continue individualized assessments of captured combatants and gauge at regular intervals whether they have given up the fight and can be safely released. It should also continue to respect the sovereignty of allies and neutrals (but warn rogue governments and rogue leaders that sheltering international terrorists is an actionable offense).

On the face of it, Roth's three-part test sounds attractive. It allows resort to the rules of war against suspects only when the violence suffered by the United States is so intense and sustained that it amounts to an armed attack, when the suspects actively engage in plans for the attack, and when "law enforcement means are unavailable" to deal with them. But "unavailability" means different things to different people, and the foreign tribunals to which Roth proposes we defer often have idiosyncratic values or could be corrupt or intimidated. And while such ambiguities are debated, dangerous suspects might slip away.

Consider the case of Jose Padilla, a Chicago youth-gang graduate allegedly interested in "dirty bombs," who could not have been effectively countered under criminal law. According to the U.S. government affidavit filed in federal court, Padilla traveled to Afghanistan in 2001 to see a senior al Qaeda military planner named Abu Zubaydah, then went to Pakistan for explosives training. He agreed to return to the United States to stage multiple simultaneous bombings at gas stations and hotels and pick out targets for a radiological "dirty bomb" attack. Padilla flew back from Pakistan via Switzerland with agents in hot pursuit and, on landing in Chicago in May 2002, was immediately detained as a "material witness" for a federal grand jury.

The limitations of criminal law soon became clear. The Fifth Amendment privilege against self-incrimination meant that Padilla did not have to testify, and could not be held, unless the government agreed to protect him against any future criminal liability. Arresting Padilla on criminal charges was not an option, because the lead witness against him is Zubaydah, who remains in custody abroad as a crucial source of information on al Qaeda's future plans. The only alternative under standard criminal law was to open the jail door, let Padilla go, and hope that the police tail would not lose him.

To overcome this obstacle, the Bush administration decided to detain him as an enemy combatant under the law of war. Padilla was, after all, a saboteur behind enemy lines planning an act of war against his own country in cooperation with an international terrorist network. A federal district court agreed, although it granted Padilla access to defense counsel to assist in a habeas corpus hearing. But an appellate court has reversed that decision, ruling that the Bush administration did not have the power to detain any U.S. citizen as an enemy combatant, even under these dire circumstances, without express authorization from Congress. The case is now before the Supreme Court.

Roth says we should not cavil when "the rule of law happens to produce inconvenient results." But the potential success of a dirty bomb plot is more than just an "inconvenient result." And it is a result not worth risking when, thanks to another applicable set of laws, we can protect ourselves against it.

RUTH WEDGWOOD is Edward Burling Professor of International Law and Diplomacy at Johns Hopkins University's School of Advanced International Studies.


Roth replies

Ruth Wedgwood attacks a straw man when she says that I find criminal law "sufficient for dealing with the terrorists." Of course force is sometimes required. And when armed conflict breaks out, as in Afghanistan or Iraq, war rules appropriately apply.

But Wedgwood also wants to invoke war rules in settings far from these traditional battlefields. In her view, the "war against terrorism" is open-ended and global, allowing the U.S. government unilaterally to designate terrorism suspects as "enemy combatants," at home or abroad, and to summarily detain or kill them. That radical proposition jettisons the most basic guarantees of criminal justice, leaving our liberty and our lives protected only by the government's professions of good faith.

Wedgwood trivializes the issue by conjuring up images of "defense lawyer[s] sent to the battlefield," which no one advocates. The real issue is whether suspects are entitled to a lawyer and due process away from the traditional battlefield, in Peoria or Manchester. The Bush administration has decided on its own that they are not. The congressional resolution that Wedgwood cites never addressed the matter.

Wedgwood contends that the U.S. government is entitled to detain Jose Padilla, the alleged dirty bomber, indefinitely, without charge or trial, because another suspect, held incommunicado under "stress and duress" interrogation, has named him. Such "evidence" would never be admitted in a U.S. court of law, let alone establish guilt beyond a reasonable doubt. Yet Wedgwood dismisses these safeguards of criminal justice as unreasonable obstacles rather than recognizing them as essential protections against government overreaching.

If Padilla were really an "enemy combatant," the government need not have detained him; it could have killed him as he stepped off the plane in Chicago. Wedgwood insists that "no one is advocating shootouts at the landing gates of O'Hare Airport." But the Bush administration has never rejected the power to kill "enemy combatants" wherever it finds them, which is precisely the treatment the rules of war allow. If we are uncomfortable applying these rules far from traditional battlefields -- as even Wedgwood seems to be -- the problem lies not in these long-established norms but in the designation of non-battlefield suspects as enemy combatants.

Even summary detention without trial should give us pause. Wedgwood concedes that the U.S. government should "continue to respect the sovereignty of allies and neutrals." But Bosnia and Malawi are two countries where the U.S. government has already seized suspects despite the protests of local courts. Since these governments are hardly part of the axis of evil, Wedgwood is wrong to speak of Washington's "continue[d]" respect for their sovereignty.

Some Americans may take comfort in the fact that most terrorist suspects to date do not look like them. But exceptions to the guarantees of criminal justice, once accepted, can come back to haunt us all. If the government can unilaterally declare a global war without regard to an actual battlefield, there is nothing to stop it from, say, citing the "war" on drug trafficking -- a violent enterprise that kills far more Americans than terrorism -- to summarily detain or kill suspected drug dealers. And one can also imagine "wars" on crime, "wars" on corruption, and so on. Detaching the notion of "war" from a traditional battlefield is easy. But it is much too dangerous to indulge.