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Old Wine in New Bottles:  Must we Rethink the Rules for Responding to Terrorism?

 

Anthony C.E. Quainton

 

CCADD

 

September 1, 2007

 

There is a tendency to think of global terrorism as a new post-9/11 phenomenon which requires dramatic adaptation of national response mechanisms to meet this new threat. This by no means the case. The United States has been grappling with terrorism since the late 1960’s when the first of four United States Ambassadors was taken hostage and subsequently murdered.  Not only have we seen kidnappings and murders, but massive truck bomb attacks on our embassies in Lebanon, Kuwait, Kenya and Tanzania, but also an array of lesser events involving hijackings and attacks on maritime targeted  (the USS Cole, for example).

 

Throughout these thirty years, two thirds of which were set against the background of the Cold War, the United States and its western allies grappled with the question of how best to respond to such attacks. The typical responses fell into three broad categories: legal actions, intelligence sharing, and development of military response capabilities. The first effort took place primarily in multilateral fora, but had domestic legal counterparts as well.  We sought to develop international conventions and domestic legal frameworks to criminalize terrorist acts so that when perpetrators were caught they could be brought swiftly and effectively to justice.  Terrorists when caught were tried in national courts with all the legal and procedural safeguards guaranteed to any other alleged criminal.

 

The second response relied on the intelligence and security services of governments. These services set out to gather information about terrorist groups, to penetrate them when possible and to thwart their activities, disrupt their financial networks and ultimately to enable governments to capture and bring to justice those who had committed or were plotting to commit terrorist acts. Governments acted unilaterally using their own intelligence agencies or with other countries through established liaison channels. These liaison relationships continue to this day and have become increasingly fruitful.

 

The third element was the development of military response capabilities.  The British 22 SAS, the French GIGN, the German GSG9 were pioneers in this effort. The Delta Force and its joint service successor, the Joint Special Operations Command, became the American equivalent.  These sophisticated and highly specialized military units were originally designed to deal with hijackings and other hostage barricade situations, but in recent years they have developed ever more specialized functions enabling them, when necessary, to operate in a clandestine mode behind enemy lines to carry out renditions and other types of counter-terrorist operations.

 

 Even more traditional military operations were used against terrorist targets as in the case of the bombing of Libya in 1986 following a terrorist attack against la Belle discotheque in Berlin and the use of cruise missiles against al Qaida camps in 1998 by the Clinton Administration following terrorist attacks on US Embassies in Nairobi and Dar es Salaam.

 

Thus an array of international conventions, military capabilities and joint intelligence programs were in place when the Twin Towers fell in September of 2001.  The American response, as is well known, was far more dramatic than anything seen before. The first step was the invasion of Afghanistan to bring down the Taliban regime as the patron and protector of al Qaida, to destroy al Qaida bases and to capture al Qaida’s leader Osama Bin Laden. As in the case of the August 1998 bombings of Sudan and Afghanistan the United States stated that it was acting in legitimate exercise of the right to self-defense as provided for under Article 51 of the United Nations Charter.  Few challenged that argument. 

 

However when a year and a half later the United States launched a preemptive war against Iraq there was far less consensus about the legitimacy of United States actions.  I do not wish to revisit that complex question here.  We all know that the US decision to go to war was at least in part a result of faulty intelligence about weapons of mass destruction and links between Saddam Hussein and al Qaida.  But whatever the merits of the Anglo-American decision to invade Iraq, the twin wars in Afghanistan and Iraq were both considered a response to the global terrorist threat of jihadist Islamic terrorism.

 

What is significant for our discussion today, however, is the fact that both wars have had a number of unanticipated secondary consequences and have led to considerable controversy about how a war on terrorism ought to be carried out and whether or not military means are appropriate at all.  These two major military operations, which, of course, are still ongoing, have taken place against the rhetorical backdrop of a Global War on Terrorism (GWOT) as President Bush has characterized it.  Many have questioned the use of the term “War” to characterize the struggle against al Qaida and its allies and have asked whether and to what extent the traditional law of war and the Geneva Conventions are applicable.

 

In a speech at the London School of Economics last October the State Department’s Legal Advisor John Bellinger was at pains to insist that “War” was the appropriate paradigm for the conflict in which the United States was engaged. He argued that the United States was and is in a legal state of armed conflict both with al Qaida and with the Taliban and that this state of war did not end with the overthrow of the Taliban regime and the installation of the Karzai government.  He went on to assert that this conflict was a lawful action in self defense under Article 51 of the UN Charter and that the law of war applied to these actions. He also rejected the argument that a state of war can only exist between nation states and that since al Qaida is clearly not a state thee Article 51 of the UN Charter does not apply.   He noted that Article 51 does not limit the right of self-defense only to attacks from a nation state. 

 

The question of the applicability of the law of war, on which I must quickly confess I am no expert, is directly related to the controversy which has swirled around Guantanamo and the detention of al Qaida and Taliban fighters there over the past five years. The traditional law of war accepts that a belligerent state may detain enemy combatants until the cessation of hostilities, without any necessary right of appeal within the established legal system of the detaining country.

 

However, one of the central problems that immediately arises is what are we to do with these detainees in a war without any discernible termination date.   In past wars the end could be determined by the victory of one side over the other, the destruction of one of the belligerent regimes or by a negotiated cessation of hostilities.  None of these outcomes seems at all likely in the case of the war on terror.  Will we ever be able to say that al Qaida has been vanquished and that organized Islamic terrorism is something of the past?  And in the meantime what is to be the fate of those captured on the battlefields of Afghanistan and Iraq and who are now detained in Guantanamo.  One answer to that question is to close Guantanamo, as President Bush has said he would like to, and transfer the enemy combatants to prisons in the United States or some other country willing to accept them.  Despite considerable efforts to transfer many of the detainees, many countries have simply refused to take back their nationals even when the United States has decided they pose no direct threat to national security. 

 

A related question is whether the individuals detained at Guantanamo, who have been determined to be enemy combatants, have the right to a trial?  Traditionally under the laws of war people captured in an armed conflict do not have the right to trial.  That is certainly the case with most prisoners of war, although paradoxically the American Administration does not want to consider the Guantanamo detainees prisoners of war, but rather “unlawful combatants.”   Whether or not the detainees remain at Guantanamo  or are or are not classified as prisoners of war, issues surrounding  their legal rights continue to present troubling issues not the least of which is the right of habeas corpus.   As some of you may know, the United States Court of Appeals has held that the detainees do not enjoy habeas corpus rights in the traditional sense.  That question is now on appeal to the United States Supreme Court.  I and a number of other former Ambassadors have joined in an Amicus Curiae brief urging the court to uphold the right to habeas corpus, given the damage which the denial is causing to America’s image as a country founded on a deep commitment to the rule of law. While the State Department’s legal position is that “aliens captured outside the United States never had a constitutional right to habeas corpus”.  Legal scholars on the other hand argue that that position is mistaken. For example, Professor Gerald Neuman of the Harvard Law School asserts: “In the Anglo-American tradition, habeas corpus is available for inquiring into the lawfulness of the detention of non citizens brought involuntarily within the national territory, whether as extradited criminal defendants, slaves, interdicted refugees, drug smugglers or purported prisoners of war.”  He does not find persuasive the Government’s argument that Guantanamo is extraterritorial (being Cuban territory) and hence is beyond the reach of the United States Constitution.

 

The current administration has tried to deal with the highly emotional habeas corpus debate by creating with congressional approval military tribunals before which the individual cases of al Qaida combatants can be brought.  In these tribunals the accused will ostensibly have virtually the same procedural rights that they would have in civil courts including the rights to defense attorneys, the ability to review the evidence presented against them (including evidence obtained through confidential or intelligence sources), and the right of appeal from the decision of the tribunal into the civil appeals court system.   Since none of the cases has proceeded very far it is in practice difficult to determine the extent to which these procedural safeguards are adequate.

 

 

The shift from a traditional law enforcement approach to terrorism to the more military approach currently in favor has many other dimensions.  As a legal matter it is apparently not possible to charge the Guantanamo detainees in US civil courts since the crimes of which they are accused were not at they time of their capture on the battlefield crimes under American law.  Some of this has subsequently been rectified, but criminal statutes can not (and should not) be applied retroactively.  One of the other problems associated with the trial of enemy combatants relates to the rather technical issue of the custody of evidence.   US criminal rules of procedure require a clear record of the chain of custody of evidence.   It may not be practicable to impose on soldiers in a combat situation the requirement that they seize, seal and transport evidence according to the same rules that would apply to a domestic law enforcement agency. 

 

The issue of confidentiality of information also raises difficult issues.  The Administration has, for obvious reasons, was reluctant to share with alleged terrorists the intelligence on which their detention was based, particularly when such intelligence may have been the result of the penetration of a terrorist organization.  However, that hurdle has now been overcome, and the government agrees, reluctantly, that detainees will have access to all evidence being brought against them.

 

Finally there is the extremely complex issue of torture and coercion used against alleged terrorists with the purpose of obtaining information about future plans and operations. The Geneva Conventions make quite clear that there is a universal prohibition against torture. However, problems have arisen in Iraq, in Afghanistan and in the secret detention facilities run by the CIA in various European countries, as to what actually constitutes torture. In the United States there are those, such as Professor Alan Dershowitz of Harvard University, who argue that under certain extreme circumstances where the lives of hundreds or thousands may be saved, torture may in those exceptional circumstances be morally justified.  Others would reject this view in its entirety.  But the question of exactly what is torture remains unanswered. It may not be sufficient to argue that if it walks like a duck and quacks like a duck then it must be a duck.  We all know torture when we see it and know that it includes a long list of abusive practices from direct physical abuse to waterboarding and psychological pressure. International documents refer to outrages on personal dignity and to cruel, inhuman, humiliating and degrading treatment.  The Military Commission Act, which governs treatment of the detainees at Guantanamo,  does prohibit cruel and inhuman treatment which  it defines as acts “intended to inflict severe of serious physical or mental pain or suffering”    Serious physical pain or suffering is in turn defined as ”bodily injury that involves either a substantial risk of death, extreme physical pain, a burn or physical disfigurement of a serious nature (other than cuts abrasion or bruises) or significant loss of or impairment of the function of a bodily member, organ or mental faculty”.  Clearly this definition leaves open the possibility of other forms of abusive practices including sexual humiliation.  The Supreme Court wrote a half century ago that even limited abuse could still “afford brutality the cloak of law”.    But it is regrettably true that many police forces in our countries working in the criminal environment use abusive procedures, such as long period of continuous interrogation or sleep deprivation.   Clearly we should extend and refine the definition of torture as widely as possible, recognizing that there still may be a threshold were honest differences of opinion may exist.

 

In any event in Guantanamo an ongoing issue is the extent to which evidence obtained through torture/intimidation will be admissible before the military tribunals.  This determination is now one for judges to make.  The government has accepted that evidence obtained through illegitimate means is not admissible, but it will be up to each individual judge to determine whether the information obtained was coerced.  One can only hope that judges will also err on the side of exclusion when there is even a suggestion of improperly coerced testimony and evidence. 

 

The rule book is being rewritten as we speak. In the war on terrorism the tension between the use of law enforcement procedures and military rules is unresolved.  Questions remain. To what extent should we rely on military measures to defeat our enemies and if so, and what is the role of the police and law enforcement?  It is clear that the struggle against Al Qaida is not only taking place on the battlefields of Iraq, Afghanistan and Pakistan but also in the cities of Western Europe and the United States.   Are new responses going beyond those used in the pre-9/11 period now needed? How should we define them and what limits should we place on them. Those are issues on which our societies and CCADD could well reflect.