Introductory essay: international law implications of the United States' 'war on terror'.

• Author: Nanda, Ved P.

1. INTRODUCTION

   The term "war on terror" has undoubtedly entered our common usage, notwithstanding heavy criticism that instead of using it as a metaphor, as in the [degrees]'war on poverty" or the "war on drugs," terminology which has primarily served a rhetorical purpose, the US views the struggle against al Qaeda and associated terrorist groups and individuals as a real war. (1) Other critics have argued that employing the law of armed conflict is not an effective tool to counter terrorism, urging instead to consider terrorism as primarily a law enforcement problem. Thus, they suggest using the traditional criminal justice system to arrest, prosecute, and punish terrorists if they are found guilty. (2) President George W. Bush directly and unequivocally responded to such critics in his 2004 State of the Union Address to the Congress:

   I know that some people question if America is really in a war at all. They view terrorism more as a crime, a problem to be solved mainly with law enforcement and indictments. After the World Trade Center was first attacked in 1993, some of the guilty were indicted and tried and convicted, and sent to prison. But the matter was not settled. The terrorists were still training and plotting in other nations, and drawing up more ambitious plans. After the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers. The terrorists and their supporters declared war on the United States, and war is what they got. (3) Although Secretary of State Hillary Clinton reportedly said in March 2009 that the new Administration had dropped "war on terror" from its lexicon, as she told reporters, "the [Obama] administration has stopped using the phrase and I think that speaks for itself .... " (4) President Barack Obama stated in his national security remarks on May 21, 2009, "Now let me be clear. We are indeed at war with al Qaeda and its affiliates." (5)

   It seems appropriate to acknowledge that if and when terrorist acts are committed in situations of armed conflict, the laws of war apply to such acts, which may constitute war crimes; and when they are committed outside of situations of armed conflict, individuals suspected of committing such acts are not subject to the laws of war. (6) And along with the application of the laws of war, when they are applicable, human rights norms, some of which are non-derogable, must govern trial and detention of suspected terrorists. Also, suspected terrorists must be entitled to independent judicial review and the application of customary international law principles enshrined in Common Article 3 of the 1949 Geneva Conventions (7) and the pertinent provisions of Additional Protocols I (8) and II (9) of 1977.

   The Bush administration's counter-terrorism policies in waging war on terror raised questions about the administration's real--contrasted with its professed--commitment to faithfully adhere to the rule of law. The administration's questionable practices included the following: designating "suspected" terrorists accused of belonging to or associated with the Taliban or al Qaeda terrorist network as "illegal/unlawful enemy combatants"; the initial decision by the administration not to apply the Geneva Conventions to these detainees subjected to indefinite detention without trial and with inadequate review and the establishment of military commissions to try some of them; secret detention of "high value detainees;" harsh interrogation techniques to which several were subjected resulting in systematic infliction of pain and suffering, rising to the level of torture; warrantless electronic wiretapping and searches and invasive surveillance; and the use of extraordinary renditions of prisoners to countries where they were tortured.

   As the Bush administration characterized its efforts in combating terrorism as fighting a global war on terror, its claim to use force for targeted killings even beyond the zone of active armed conflict, such as in Yemen, and the US invasion of Iraq, justified, in part, on Saddam Hussein's alleged contacts with al Qaeda and terrorism, also came under scrutiny.

   While campaigning for president, then-Senator Barack Obama promised to close the military detention facility at Guantanamo Naval Base if elected, and was critical of several of the Bush administration's counter terrorism practices mentioned above. True to his promise, on his third day in office, President Barack Obama signed several executive orders charting a new direction by reversing most of these questionable policies and practices, some of which will be the subject of review in this essay.

2. SELECTED COUNTERTERRORISM POLICIES AND PRACTICES OF THE BUSH ADMINISTRATION AFTER 9/11 AND THE NEW DIRECTION TAKEN BY THE OBAMA ADMINISTRATION

   The following selected policies and practices will be reviewed here: detention; interrogation techniques; military commissions; extraordinary rendition; and targeted killing.

   1. The Guantanamo Detention Camp and the Issue of Detention

      1. Trends

         On January 22, 2009, President Barack Obama issued an Executive Order directing that Guantanamo detention facility be closed within one year. (10) This was based on the findings that over the past seven years the Department of Defense had detained at Guantanamo approximately 800 suspected terrorists as "enemy combatants," raising "significant concerns nationally and internationally," (11) and that "prompt and appropriate disposition of the individuals currently detained at Guantanamo and closure of the facilities in which they are detained would further the national security and foreign policy interests of the United States and the interests of justice." (12) The Executive Order also stated that the Guantanamo detainees have the constitutional privilege of the writ of habeas corpus. (13)

         The President ordered 1) immediate review of the status of each Guantanamo detainee (14) and 2) the detainees' confinement to be in accordance with humane standards, including the application of Common Article 3 of the Geneva Conventions. (15) During the review period, all proceedings before military commissions were halted. (16) The approximately 240 who remained in detention (more than 525 detainees were released before President Obama took office) "shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a matter consistent with law and the national security and foreign policy interests of the United States." (17)

         Subsequently, in his May 21, 2009, address, President Obama discussed in detail the detainees' cases at Guantanamo, which he said fell into five distinct categories: 1) to try those who have violated American criminal laws in US federal courts whenever feasible; 2) detainees who have violated the laws of war to be tried through revised and reformed military commissions which are "fair, legitimate, and effective;" 3) detainees who have been ordered released by the courts; 4) detainees who can be transferred safely to another country; and 5) detainees who cannot be prosecuted for past crimes because, for example, evidence may be tainted, but who pose a clear danger to the security of the United States will not be released. (18) As of July 21, 2009, eleven prisoners had been transferred--four to Bermuda, three to Saudi Arabia, and one each to Chad, Iraq, France, and the United Kingdom. (19)

         Elaborating on the fifth category, the President stated:

         Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture--like other prisoners of war--must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone. That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. (20) He said that the objective is to construct a legitimate legal framework for the remaining Guantanamo detainees whom the administration cannot transfer and will not release.

         Earlier, on March 13, 2009, the Justice Department filed a memorandum in the District of Columbia District Court regarding the administration's detention authority pertaining to Guantanamo detainees. (21) While it abandoned the Bush administration's term "enemy combatant," the Obama administration argued in the memorandum for the continued detention of Guantanamo detainees. This, it said, was pursuant to a valid exercise of the administration's authority to use force against "members of an opposing armed force ... [including] the irregular forces of an armed group like al-Qaeda" or "members of enemy forces," even if "they have not actually committed or attempted to commit any act of depredation or entered the theater or zone of active military operations." (22)

         The Obama administration relied on the principles of the laws of war and on the statutory authority given by Congress in its Authorization for the Use of Military Force (AUMF) (23) to contend that "the President has authority to detain persons who he determines planned, authorized, committed, or aided the terrorist attacks" of September 11,2001, and persons who harbored those responsible for these attacks, and also

         to detain in this armed conflict those persons who were part of, or substantially supported Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces. (24) The...