Playing by the rules: combating al Qaeda within the law of war.

• Author: Glazier, David

ABSTRACT

Although the conflict formerly known as the "war on terror" is now in its eighth year, key legal issues governing the use of force and military detention remain largely unresolved. These questions survive the Bush administration, as the United States continues to launch aerial strikes against al Qaeda and President Obama has indicated his intention to continue the use of preventative detention and military trials even after Guantanamo is closed. Military victory is not possible, but good faith application of authority from the law of war can effectively complement traditional criminal law in combating the threat. Even if the Geneva Conventions do not formally apply to this conflict, there is a large body of customary international law, including many Geneva rules, that should. If the war is limited to those adversaries authorized by Congress, and the opposition is validly classified under the law of war, the military (but not the CIA) can legally target members oral Qaeda and detain them without requiring a criminal trial. But the conditions of that detention and any trials that are held must meet international standards, which they currently do not. Good faith application of law of war rules also offers better protections for civil liberties than other proposed solutions, such as national security courts, which offer less due process than regular federal trials. Such measures start down a slippery slope of compromising legal standards on the basis of expediency that can be avoided through the faithful application of existing international law.

TABLE OF CONTENTS INTRODUCTION I. THE CHALLENGE A. Terrorism Under Criminal Law B. Terrorism as Piracy? C. Terrorism Under the Law of War 1. Practical Roots of the Law of War 2. War as a Protector of Civil Liberties II. DEFINING AND CHARACTERIZING THE WAR A. Defining the Conflict B. War Against a Nonstate Actor? C. Characterization of the Conflict III. CLASSIFYING THE ENEMY IN THE "WAR ON TERROR" A. Combatant Status Under the Law of War B. Civilian Status Under the Law of War C. Unlawful Combatants D. Unlawful Combatants as a Subset of Combatant Status IV. JUS IN BELLO IN A WAR AGAINST AL QAEDA A. Lawful Combatants and the Distinction Requirement B. Location of Hostilities C. Detention Under the Law of War 1. The Legitimacy of Detaining Those Held at Guantanamo 2. Conditions of Detention D. Interrogation Under the Law of War E. Trial V. THE WAY FORWARD A. Classifying the Enemy B. Determining Who Can Be Held C. Conforming Detention Conditions to International Standards D. Interrogation Standards E. Conducting Fair Trials Meeting International Standards F. Habeas Corpus CONCLUSION [F]or winning friendships, of which for many reasons nations as well as individuals have need, a reputation for having undertaken war not rashly nor unjustly, and of having waged it in a manner above reproach, is exceedingly efficacious. No one readily allies himself with those in whom he believes that there is only a slight regard for law, for the right, and for good faith.

--Hugo Grotius, 1625 (1)

INTRODUCTION

Although more than eight years have elapsed since the September 11, 2001 attacks (9/11) precipitated the so-called "war on terror," core legal issues concerning the conduct of America's response remain unresolved. Immediately following 9/11, the Bush administration perceived the need for extraordinary measures to protect the nation, evidenced by its adoption of the "war" nomenclature and the extensive roles assigned to the military in combating, detaining, and interrogating suspected terrorists. (2) But these measures were largely divorced from legal rules governing their application; administration lawyers saw the law of war as a relic unsuited to the post-9/11 challenge and crafted narrow interpretations in an effort to avoid its constraints. (3) Their opinions allowed the government to function in something close to a law-free zone while exercising substantial executive power. (4)

This approach met with strident criticism. Many critics called for strict conformance to existing law, particularly the 1949 Geneva Conventions, (5) while some questioned whether the fight against terrorism could be a war at all. (6) Predictably, these disputes carried over into the courts. A host of cases have been litigated, including five already decided by the Supreme Court, (7) yet basic questions still lack definitive answers. If this is actually a "war," what international law provisions apply? Who can be killed or captured? How long can those captured be held, and under what conditions? How may prisoners be interrogated? Can detainees be criminally tried? If so, by what courts and on what charges?

The Supreme Court's decisions have actually confused, rather than clarified, these issues. In 2004, for example, Justice O'Connor's plurality opinion in Hamdi v. Rumsfeld held that detention of enemy fighters was a "fundamental incident" of waging the conflict Congress sanctioned in the September 2001 Authorization for the Use of Military Force (AUMF). (8) Although not explicitly stated in the opinion, the authority discussed is logically sourced in the law of war governing international armed conflict. (9) Two years later in Hamdan v. Rumsfeld, however, Justice Stevens's plurality opinion seemed to hold that the conflict is "non-international," governed by Common Article 3 of the 1949 Geneva Conventions. (10) But the law of war provides no authority for detention in noninternational conflicts; it must be provided by domestic law, and no U.S. law addresses this issue or could logically govern extraterritorial conduct in this realm. (11) And in its 2008 Boumediene v. Bush decision, the Court held that Guantanamo detainees had a constitutional right to habeas corpus review but gave little guidance as to the substantive law to be applied in judging their cases on the merits. (12)

The need to resolve these questions did not end with the Bush administration. President Obama has pointedly distanced himself from some of his predecessor's more controversial positions, including a move toward abandoning the "war on terror" terminology, (13) committing to close Guantanamo, (14) and backing away from the overbroad categorization of adversaries as "enemy combatants." (15) But Obama has indicated that he intends to preventively detain some suspected terrorists (16) and continues relying on legal authority sourced in the law of war, conducting missile strikes against suspected militants sheltering in Pakistan's remote tribal regions, and announcing plans to resume military commission trials. (17)

This Article endeavors to address this void by critically assessing what rules should govern a "war" against al Qaeda conducted in accordance with international law. It will show that, properly applied, the law of war can play a key role in dealing with the al Qaeda threat. The widespread view that 9/11 constituted an actual armed attack offered the opportunity to go beyond the one-time strikes that followed previous terrorist bombings. (18) Unlike the metaphorical wars against crime or drugs, or the stillborn "war on illiteracy," (19) key international organizations and Congress endorsed legal application of the armed conflict paradigm. (20) This can be a real war.

For a short time it might have even been just a war. It might have been "won" if a] Qaeda's leadership had been killed or captured before escaping into Pakistan's tribal regions. (21) But even then military force may have been inadequate. Terrorist cells embedded in western nations, for example, can only be countered through intelligence and law enforcement activity, not warfare. (22) In any event, by early 2002 the primary threat was geographically dispersed into nonhostile states that are not legitimate battlegrounds, (23) and a "war on terror" could not be won by force of arms alone. International cooperation is now a key requirement, and "war" at most can only be one component of a larger legal and political effort. (24) Nevertheless, authority can be drawn from the law of war for direct military action, preventive detention, and even military trials as adjuncts to regular criminal procedure in ways that could assist in achieving legitimate national security objectives while maintaining international public support. (25)

In fairness to the Bush administration, some law of war provisions, including the full 1949 Geneva Conventions, (26) may be inapplicable to fighting a nonstate actor like al Qaeda. (27) But this is a far cry from holding that no legal rules govern. There are many other treaties and a large body of customary law that provided the basis for thousands of war crimes trials following World War II. (28) The Martens Clause, first incorporated in the 1899 Hague Land Warfare Regulations, explicitly addresses gaps in law of war treaty coverage:

Pending the preparation of a more complete code of the laws of war, the high contracting parties deem it opportune to state that, in cases not provided for in the rules adopted by them, the inhabitants and the belligerents shall remain under the protection of and subject to the principles of the law of nations, as established by the usages prevailing among civilized nations, by the laws of humanity, and by the demands of public conscience. (29) In other words, customary international law and other accepted norms govern when there are treaty gaps. (30) The law of war takes precedence over conflicting general rules as alex specialis during armed conflict, but international human rights law remains applicable, governing when there are lacunae in law of war coverage. (31) So even if government lawyers correctly identified gaps in Geneva Convention applicability, this should have been only the beginning of their work. Legal compliance is an important element in securing necessary international cooperation in the fight against terrorists. To succeed, the United States must be seen as a just party...