In remarks given in November of 2007, President George W. Bush, reminded the Congress that…
According to their reasoning, since there is no “war,” terrorists should be dealt with in the same manner as they were prior to September 11, 2001, by the domestic criminal process.
Undoubtedly, the friction between those who believe that the War on Terror is a real war and should be fought under the international law of war verses those who do not has created deep fissures in the legal community and, by extension, in society as a whole. While individual citizens of every vocation in life are certainly entitled to their personal opinions on the matter, what ultimately resonates in a representative democracy is what the government asserts. In short, does the executive, legislative, and judicial branch of the United States government view the War on Terror as a real war? In other words, if one accepts the premise that the United States is in a state of war, then various actions taken by the government, e.g., the use of military commissions, targeted killings, and detention facilities is perfectly legitimate. On the other hand, if one does not accept the premise that the War on Terror is a real war, then a very strong case can be made in a number of arenas of interest that the United States has engaged in activities that clearly violate both domestic and international law.
Even in the wake of the horrific terror attacks of 9/11, the proposed international definition of terrorism offered by the Ad Hoc Committee on Terrorism was not adopted by the General Assembly. The primary obstacle to acceptance emanated from the 56-member Organization of Islamic Conference. Incredibly, in an ends justifies the means analysis, the Organization of Islamic Conference wanted the definition of terrorism to exempt so-called wars of national liberation against foreign occupation.
To date, the best definitional effort emanating from the United Nations was offered by the former Secretary General, Kofi Annan. Mr. Annan’s 2005 definition ignored any reference to the issue of the “cause” that prompted the terrorist act while simultaneously rejecting the duplicity inherent in the old adage that ones man freedom fighter is another mans terrorist. His proposed definition of international terrorism simply encompassed anyone who intentionally targeted civilians:
[A]ny action constitutes terrorism if it is intended to cause death or serious bodily harm to civilians or non-combatants, with the purpose of intimidating a population or compelling a Government or an international organization to do or abstain from doing any act.
From Annan’s definition, one can list four key characteristics of terrorism that reflect the activity and ignore the cause:
1. The illegal use of violence directed at civilians to produce fear in a target group.
2. The continuing threat of additional future acts of violence.
3. A predominately political or ideological character of the act.
4. The desire to mobilize or immobilize a given target group.
Of course, the fact that the United Nations has no accepted definition of terrorism does not keep it from engaging in endless rhetoric about “terrorism.” For instance, U.N. Security Council Resolution 1368, passed on September 12, 2001, uses the term terrorism six times in the short one page condemnation of the “horrifying terrorist attack” of 9/11.
From a domestic perspective, the United States has many definitions of terrorism spread across a wide variety of criminal statutes, regulations, and directives. For example, the USA PATRIOT Act contains a definition for both domestic terrorism and international terrorism. Domestic terrorism is defined in the USA PATRIOT Act as the “unlawful use, or threatened use, of force or violence by a group or individuals based [in the United States] … committed against persons or property to intimidate or coerce a government, the civilian population … in furtherance of political or social objectives.”
International terrorism is defined as follows:
International terrorism involves violent acts or acts dangerous to human life that violate the criminal laws of the United States or any state, or that would be a criminal violation if committed within the jurisdiction of the United States or any state. These acts appear intended to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion, or affect the conduct of a government by assassination or kidnapping. International terrorist acts occur outside the United States or transcend national boundaries in terms of how terrorists accomplish them, the persons they appear intended to coerce or intimidate, or the place in which the perpetrators operate.
Those nations which engage in unlawful aggression are subject to the provisions of Chapter VI and VII of the U.N. Charter. Chapter VI authorizes the Security Council to investigate any situation that might endanger the maintenance of international peace and security and to make recommendations for the peaceful resolution of such disputes. Chapter VII of the U.N. Charter authorizes the Security Council to determine the existence of a threat, a breach of peace, or act of aggression, and to take appropriate measures in response. While the U.N. has no standing military arm to enforce specific findings, the U.N. Charter does recognize at Article 51 the “inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.”
Article 51 states:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures to maintain international peace and security. Measures taken by Members in the exercise of the right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
Acknowledging that Article 51 employs the term “armed attack” and not the term “aggression,” it is imperative to understand what exactly is meant by “armed attack.” In order to better define when an unlawful use of force in violation of Articles 2(3) and (4) occurs, one must look at the definition of aggression as adopted by resolution of the U.N. General Assembly. A State engages in aggression in the following ways according to the U.N. Definition of Aggression:
Aggression is the use of armed force by a State against the sovereignty, territorial integrity, or political independence of another State, or in any manner inconsistent with the Charter of the United Nations ….
The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression ….
Any of the following acts, regardless of a declaration of war, shall … qualify as an act of aggression:
(a) The invasion or attack by the armed forces of a State … of another State or part thereof;
(b) Bombardment by the armed forces of a State against the territory of another State …
(c) The blockade of the ports or coasts of a State by the armed forces of another State;
(d) An attack by the armed forces of a State on the land, sea, or air forces, or marine and air fleets of another State;
(e) The use of armed forces of one State … in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;
(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;
(g) The sending by or on behalf of a State of armed bands, groups, irregulars, or
mercenaries, which carry out acts of armed force against another State of such
gravity as to amount to the acts listed above, or its substantial involvement
C. The Law of War
• Geneva Convention of August 12, 1949, for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field;
• Geneva Convention of August 12, 1949, for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea;
• Geneva Convention of August 12, 1949, Relative to the Treatment of Prisoners of War; and
• Geneva Convention of August 12, 1949, Relative to the Protections of Civilian Persons in Time of War.
In the United States, Department of Defense Directive 5100.77, para. 5.3.1 requires all American military forces to comply with the law of war in the conduct of military operations in all armed conflicts regardless of how a particular conflict is characterized. Incorporating the provisions of the Geneva Conventions and all existing international laws relating to the conduct of armed conflict, the U.S. military has codified the law of war in Field Manual 27-10, Department of the Army Field Manual of the Law of Land Warfare (FM 27-10). FM 27-10 affirms that the basic goal of the law of war is to limit the impact of the inevitable evils of war by:
• protecting both combatants and noncombatants from unnecessary suffering;
• safeguarding certain fundamental human rights of persons who fall into the hands of the enemy, particularly prisoners of war, the wounded and sick, and civilians; and
• facilitating the restoration of peace.
Examples of the law of war include such common sense rules as the requirement to treat prisoners and detainees humanely; they may not be abused under any circumstances. Also, the probation on intentionally targeting for military attack civilians or protected places, such as hospitals and religious sites; the duty to treat all noncombatants with dignity and respect; and the obligation to protect those who surrender are integral components of the law of war.
The law of armed conflict describes lawful targets which can be destroyed in the proper context of military operations. The general principle is that the military acting in a wartime environment may kill the enemy, whether lawful combatants or unprivileged belligerents, and may include in either category civilians who take part in the hostilities. An enemy combatant, whether part of an organized military or a civilian who undertakes military activities, is a legitimate target at all times and may be lawfully killed, even if by surprise.
Thus, unannounced attacks do not preclude the use of violence involving the element of surprise. All “combatants are subject to attack if they are participating in hostilities through fire, maneuver and assault; providing logistic, communications, administrative, or other support.”
The law of war absolutely prohibits the killing of noncombatants, except as a matter of collateral damage where civilians may be killed ancillary to the lawful attack of a military objective. Civilians that maintain close proximity to a military objective assume the risk of being killed by enemy fire. Specifically targeting innocent civilians as a military objective is always illegal and criminal.
D. War Crimes
E. The Rule of Law
F. The War on Terror
Nevertheless, there is no doubt that the phrase “War on Terror” is not an accurate description of the conflict and can be very misleading. Terrorism is not an enemy, it is a method employed by an enemy. In turn, the conflict is not against all terrorist groups in the world; there are thousands. It is not even meant to encompass all Islamic radical terror groups such as Hamas.
G. Enemy Combatants
After some internal debate, the Bush Administration affirmed that the Geneva Conventions of 1949 did apply to the 2002 conflict in Afghanistan and, hence, the Taliban government. However, President Bush also unilaterally determined that the captured al-Qa’eda and Taliban fighters were not eligible for prisoner of war status nor were they entitled to protections contained in Common Article 3 of the 1949 Geneva Conventions, which sets out the minimum standards of treatment for detainees in armed conflict.
The Bush Administration reasoned that since the al-Qa’eda fighters belong to a terrorist organization and are not recognized members of an armed force, they are unlawful enemy combatants or unlawful belligerents under the law of war. Paragraph 60(b) of FM 27-10 indicates that “[p]ersons who are not members of the armed forces as defined in [the Geneva Conventions], who bear arms or engage in other conduct hostile to the enemy thereby deprive themselves of many of the privileges attaching to the members of the civilian population.” This means that they are responsible for breaches of the law of war, but are not entitled to the status of prisoners of war. As to the captured Taliban fighters, the United States determined that they were likewise not entitled to prisoner of war status under the Geneva Conventions because of their failure to comply with the Conventions’ criterion which requires lawful combatants to wear distinctive military insignia, i.e., uniforms which would make them distinguishable from the civilian population at a distance. The Taliban had “not effectively distinguished themselves from the civilian population.” The Bush Administration’s technical view of the detainees was rejected by the June 2006 Supreme Court decision in Hamdan v Rumsfeld. The Court found that Common Article 3 of the Geneva Conventions did in fact protect the detainees from being subjected to violence, outrages on personal dignity, torture, and cruel, humiliating, or degrading treatment. Although existing DOD directives, orders, policies, and doctrine conformed already to the standards of Common Article 3, the DOD quickly issued new treatment guidelines for detainees that incorporated the basic standards set out in Common Article 3.
After the 2002 military campaign in Afghanistan, the vast majority of the Taliban fighters were processed and released in Afghanistan. Approximately 1,000 al-Qa’eda and Taliban fighters were turned over to American forces for disposition. Those turned over to the U.S. military were deemed to be either too dangerous to parole or were suspected of committing war crimes. By early 2008, less than 300 were still being held at the detention facility at Guantanamo Bay, Cuba. All of these individuals are currently being detained until either they are deemed to be no longer a threat, hostilities cease, or in the cases of about 80 individuals, specific charges are levied against them for associated war crimes to be tired by military commission.
II. EXECUTIVE BRANCH
Article II, Section 1 of the Constitution provides that the “executive Power shall be vested in a President of the United States of America.” Section 2 states that the “President shall be Commander in Chief of the Army and Navy of the United States ….” As the nation’s Commander in Chief, none can challenge the assertion that President Bush has remained absolutely firm in his belief that the al-Qa’eda terror attacks of September 11, 2001, marked the beginning of a War on Terror which the President has consistently characterized as in fact a real war.
The President’s authority to order the American military to armed conflict is unquestioned under the terms of the United States Constitution. In fact, there is a long history of American presidents ordering the deployment of military forces abroad in situations of armed conflict or potential conflict. The number of instances where the president has used his Commander in Chief powers with a Congressional declaration of war, well exceeds 200 in number. Selected instances include: 1798–1800, undeclared naval war with France; 1801–1805, the First Barbary War (Tripoli declared war but not the United States); 1806, Mexico Incursion; 1806–1810, Gulf of Mexico Incursion; 1810, West Florida Incursion; 1812, Amelia Island in Florida; 1813, West Florida; 1813–1814, Marquesas Islands; 1814–1825, Caribbean (engagements between pirates and American war ships in response to over 3,000 pirate attacks on merchantmen between 1815–1823); 1815, Second Barbary War; 1950–1953, Korean War; 1958, Lebanon; 1962, Cuba; 1962, Thailand; 1964, Congo; 1964–1973, Vietnam War; 1965, Dominican Republic; 1980, Iran; 1981, El Salvador; 1982, Lebanon; 1983, Honduras; 1983, Chad; 1983, Grenada; 1986, Libya; 1989, Panama; 1989, Andean Region; 1991, Persian Gulf War; 1993, Bosnia; 1993–1995, Somalia; 1993–1995, Haiti; 1997, Serbia; 2001, Afghanistan; and 2003, Iraq.
The authority of the executive to order the military to engage in war and the authority of Congress to declare war or to otherwise share in the process of war making has been the source of much debate over the life of the Republic. By providing both branches of government with war making powers the framers established both a system of “checks and balances” and a built-in source of friction. In modern times, the most well known example of this friction is the 1973 War Powers Resolution, enacted over President Richard Nixon’s veto in 1973. The War Powers Resolution seeks to curtail or limit the power of the executive in the employment of American forces abroad. Among other things, it requires the President to consult with Congress if American forces are introduced into hostilities or into situations where hostilities are imminent and, after a time set at a maximum of ninety days, either obtain Congressional approval of any continued military action or withdraw. Needless to say, the War Powers Resolution raises serious separation of powers issues which, to date, the United States Supreme Court has refused to address. Not surprisingly, no American president from either political party has directly complied with the War Powers Resolution, viewing it as an infringement on the executive authority as Commander in Chief. At most, when presidents have employed United States armed forces in hostile situations or in places where conflict was imminent, Congress has simply been notified in writing “consistent with the War Powers Resolution.”
Without question, the President has firmly indicated that the nation is engaged in an ongoing armed conflict with the Taliban, al-Qa’eda and al-Qa’eda-styled combatants. In the view of the executive branch of government, this continuing armed conflict between the Taliban, al-Qa’eda, and al-Qa’eda-styled terrorists is lawfully framed as an international armed conflict and the law of war properly applies.
III. LEGISLATIVE BRANCH
What Congress did do was to do in the week following 9/11 is what it normally does in time of armed conflict and that is to issue a strongly worded joint resolution. Cited as the Authorization for Use of Military Force (AUMF), this document authorized the President to use military force, if necessary, to respond to the attacks with “all necessary and appropriate force against those nations, organizations, or persons he determines [emphasis added]” were associated with the terror attacks of September 11, 2001. In addition, the resolution also authorized the President to take additional action to “prevent any future acts of international terrorism against the United States.” In an unprecedented show of unity, this resolution was passed by every member of the Senate and every member of the House of Representatives, save one member from California. The AUMF provides:
AUTHORIZATION FOR THE USE OF MILITARY FORCE
To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States. NOTE: Sept. 18, 2001—[S.J. Res. 23]
Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and
Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and
Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and
Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and
Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, NOTE: Authorization for Use of Military Force.
SECTION 1. SHORT TITLE.
This joint resolution may be cited as the “Authorization for Use of Military Force.”
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) In General.—That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements.—
(1) Specific statutory authorization.—Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) Applicability o