Debating the Issues

• Author: Kenneth Roth - Robert F. Turner
• Position: Executive Director of Human Rights Watch - Associate Director, Center for National Security Law at the University of Virginia School of Law
• Pages: 395-416

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Debating the Issues

Kenneth Roth and Robert F. Turner*

Moderator: The last set of questions to the preceding panel members is aperfect

segue to questions oflaw enforcement and military responses to fighting terrorism,

and in this particular case, targeting terrorists. We are now going to take acloser

look at questions of preemption and prevention, as well as specific techniques that

might apply to combating terrorists and terrorist groups.

Iam ajournalist and generally examine the issue of targeting terrorists through

adomestic lens focused on homeland security and criminal justice, so Iam looking

forward to adebate that broadens the focus to include international law and mili-

tary operations. This debate is much more interesting when we start to compare

activities conducted beyond the borders of the United States with activities con-

ducted within our borders, and then determining what standards will be applied in

targeting terrorists abroad versus within the United States.

Our first speaker is Mr. Ken Roth, who has been Executive Director of Human

Rights Watch since 1993, and served as the deputy director of that organization

from 1987 to 1993. Human Rights Watch is the largest human rights organization

based in the United States. Its researchers conduct fact-finding investigations into

human rights abuses in all regions ofthe world and then publishes those findings in

dozens of books and reports every year, generating extensive coverage in local and

international media.

*Mr. Kenneth Roth is the Executive Director of Human Rights Watch. Professor Robert F.

Turner is Associate Director, Center for National Security Law at the University of Virginia

School of Law.

Debating the Issues

Mr. Roth: It is an honor to be here. Iam grateful for the invitation. Iam also grate-

ful to the Supreme Court for waiting to hear the benefits of today's conversation

before deciding the Hamdi and Padilla cases now pending before it so that we can

address the issues from ablank slate. What Iwill address this morning is the ques-

tion: what are the limits to the war on terror. More specifically, when is the war on

terror areal war and when is it ametaphor more akin to the war on drugs or the

war on poverty or various other efforts to mobilize the population to pursue an

important goal.

Obviously Afghanistan was awar. There is no question that armed conflict

occurred there. Insofar as Iraq had anything to do with terrorism, no question,

that was awar, too. But what about elsewhere? President Bush has spoken about

the war on terror being global, since al Qaeda has cells around the world, so the

war against it and the war on terrorism must be pursued globally. Is he speaking in

ametaphoric sense or literally? The answer to that question is important because if

we're talking only metaphor, then we are obviously applying the rules of peace-

time law enforcement. And under those rules, as you all know, you have aduty to

arrest asuspect if at all possible—indeed only arrest the suspect upon probable

cause. Then the suspect is brought before ajudge, represented by alawyer, entitled

to a trial, et cetera. Lethal force can sometimes be used but only if strictly necessary

to stop athreat to life or athreat of serious bodily injury to another. And so lethal

force is carefully circumscribed. In awar context, you look at the law of armed

conflict. If you have detained an enemy combatant, there is no need to give him a

lawyer, no need to give him atrial, no need to charge him with anything. In the

midst of battle, you can shoot to kill. You don't have to attempt arrest. Obviously,

if an enemy surrenders, you have to respect that. But if, for example, the enemy

combatant is walking down the street or operating on patrol, you can shoot to kill.

You don't need to first attempt an arrest. Those are big differences. The question

is: which set of rules should apply to combating terrorists—those for law enforce-

ment or those for law of armed conflict.

Unfortunately, the law of armed conflict provides relatively little guidance for

making that decision. It sets forth detailed rules that apply once you have an armed

conflict. But it is unclear, however, exactly when the circumstances are such that

they may be considered to be an armed conflict.

If you look at the commentary to the 1949 Geneva Conventions, for example,

there are references to the intensity of the violence and to the regularity of armed

clashes. You can argue that the series of al Qaeda operations from the African

embassies to the USS Cole to the World Trade Center are but aseries ofvery impor-

tant criminal acts, or you might argue that those are various acts ofwar. There is no

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