The war on terror: where we have been, are, and should be going.

• Author: Aronofsky, David

It is with pleasure and gratitude that I write this Chapter to honor Professor Ved Nanda and the Denver Journal of International Law and Policy ("Journal") in commemoration of the Journal's 40th Anniversary. Before getting to know Professor Nanda as a friend and colleague, I long admired his work and insight into the crucial international law issues of the day while using his ideas in my own teaching. I have participated in several Sutton Colloquium programs since first meeting Professor Nanda in Montana, and always welcome these opportunities to come to the University of Denver to share thoughts. I also greatly appreciate the Journal's willingness to publish several of my past writings. I have chosen one of these writings here, co-authored with Matt Cooper who is one of Professor Nanda's very best international law students among the many he has taught and inspired, to assess the war on terror as to where we have been, where we are, and perhaps most importantly, where we should be going. (2)

In 2009, Matt and I wrote that Europe, and particularly the European Court of Human Rights ("ECHR"), seemed to have a much sounder approach, based on established rule of law and human rights law principles set forth in the European Human Rights Convention ("Convention"), than the U.S. in confronting most legal aspects of the war on terror. We looked at case law developments involving extraordinary renditions, military commissions, and related habeas corpus proceedings to challenge them in connection with suspected terrorist detentions, warrantless electronic surveillance, official complicity in aiding human rights violations--including torture against terrorist suspects by overseas governments and their officials--state secrets as a basis to bar legal claims, and the marked U.S. court tendency to dismiss legal claims against the U.S. and its officials on various technical grounds. These developments were contrasted with the ECHR decisions allowing lawsuits against European states to proceed. We concluded that the U.S. should follow the European approach of allowing lawsuits challenging alleged violations of basic rights of terrorist suspects to be decided on their legal merits. In retrospect and based on a review of U.S. and European case decisions since publication of our article, nothing has altered my position.

Before getting into reasons, however, I think it is appropriate here to cite some of Professor Nanda's own legal views regarding the War on Terror as it has progressed since the September 11, 2001 tragedy because he has, in many respects, been a voice for all of us in identifying legal issues which matter. For example, in 2001 he reminded us that international law is a fundamental weapon in waging the war on terrorism and stated that "the war against terrorism will be won only if concerted national action is taken... for that to happen, we need to provide credible leadership that we can be proud of and we need to take the moral high ground that will set an exemplary precedent." (3) That same year, he also noted:

Among policy alternatives to combat terrorism, the use of military force dominates the U.S. agenda today. The implications of this are far-reaching. As historically unprecedented as the challenges are, it would appear that more creative approaches are urgently called for, approaches that do justice to the multi-faceted character of this problem. (4) Even more to the point, he cautioned:

The use of military force to combat terrorism must be seen as a new powerful tool being wielded by the United States. Having employed it first in Afghanistan and now in Iraq, the US has been emboldened by its reception at home and seemingly undaunted by criticism of it overseas. Its implications are far-reaching, perhaps especially for the integrity of the law itself. (5) Time and circumstances proved Professor Nanda to be an accurate prophet.

Professor Nanda studied the U.S. approach to waging the war on terror as it continued after 9/11, and in 2006 he addressed the issue of terrorist suspect detentions head-on by urging that the detainees "must be treated humanely" and with "basic fairness." (6) He captured the sentiments of many by stating that those directing the U.S. war on terror "must not lose sight of the need to strengthen international human rights law and not even inadvertently dilute it." (7)

It is with Professor Nanda's foregoing thoughts in mind that we now view where we have been, where we are, and where we ought to be going with the U.S. war on terrorism.

EXTRAORDINARY RENDITIONS

Matt and I sharply criticized the seeming U.S. judicial willingness to condone extraordinary renditions by finding no viable cause of action in U.S. courts to challenge them in Arar v. Ashcroft. After we published our article, the Second Circuit reheard its prior decision en banc and a sharply divided court reaffirmed its initial decision barring any legal claim against U.S. officials or the government itself. (8) The U.S. Supreme Court refused to hear the appeal. (9) Mr. Arar, the plaintiff, was neither a U.S. citizen nor a U.S. permanent resident alien, thus deferring for another day the question of whether U.S. citizens would fare differently in challenging renditions. The Seventh Circuit recently suggested an affirmative answer in a non-rendition overseas torture case, Vance v. Rumsfeld, (10) but the Court recently vacated this three-judge decision and granted en banc review in a development which bodes ill for rendition case plaintiffs. (11) Meanwhile, U.S. district courts seem to follow Arar in rejecting rendition claims by any plaintiffs. (12) In addition, it now seems clear that suits against private, non-governmental defendants participating in rendition are likewise barred whenever plaintiffs require evidence available solely from classified information to sustain them. (13)

Meanwhile, the ECHR goes in a much different direction: "[E]xtraordinary rendition, by its deliberate circumvention of due process, is anathema to the rule of law and the values protected by the Convention." (14) Although the Court recognized that sending suspected terrorists to other countries is permissible, this can only be done when there are strong, legally binding assurances by the sending and receiving countries that all legal rights protected in the Convention will be respected. (15) As noted in our prior article, the ECHR has little hesitation about granting rule of law primacy over security.

ENEMY COMBATANT HABEAS LITIGATION

As Matt and I pointed out in our prior article, the issues of enemy combatants status and their detention conditions, including indefinite detention status, has been one pitting the U.S. Government against the mainstream of international law jurists' views. (16) We expressed concerns about the limited right of habeas corpus and its viability. Our concerns proved well founded. In case after case since then, detainees in Guantanamo and elsewhere have used habeas to no avail in their efforts to challenge their detentions. The U.S. Court of Appeals for the D.C. Circuit, which now has exclusive jurisdiction over these detainee habeas petitions, has proved a habeas legal graveyard, and its decisions recently prompted a pair of commentators to accuse this Court of "undermining" the right of meaningful habeas review. (17) Another has identified four individual judges on this Court who seem to steer these cases to predetermined outcomes whenever at least two are on the same judicial panel, making it impossible for detainee habeas petitioners to prevail. (18) One specific category of cases involves the evidentiary requirements to prove these petitioners belong in detention as either supporters of, or persons who are part of, terrorist organizations like Al-Qaeda, under a lax preponderance standard the D.C. Circuit has yet to find unmet. (19) This Court most recently reversed a lower court grant of one detainee's habeas petition because federal executive branch actions enjoy a "presumption of regularity" supposedly not considered by the lower court even though the latter appeared to find ample basis to overcome any such presumption. (20) These results in and of themselves might not warrant serious criticisms given the small numbers of habeas corpus writs granted by U.S. courts generally, but here the law is still unclear about who may be lawfully detained under what status and evidentiary circumstances. As Professor Chesney notes, "[T]he precise boundaries of the government's detention authority remain unclear despite the passage of more than nine years since the first post-9/11 detainees came into U.S. custody." (21) Professor McNeal states it better: "Counterterrorism detention policy in the United States is a mess." (22)

This problem has likely just been exacerbated by President Obama's December 31, 2011 signing of the National Defense Authorization Act of 2012, which now authorizes indefinite military detentions of anyone, including U.S. citizens who are "part of or [have] substantially supported al-Qaeda, the Taliban, or associated forces... engaged in hostilities against the United States" or anyone who commits a "belligerent act" against the U.S. or a U.S. ally regardless of whether the detainee committed any such act on a battlefield and even such act is committed in the United States. (23) The ACLU has described President Obama's approval of the legislation as "a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law." (24) There is more to say below about the overall Obama approach to the war on terror and military commissions.

One black letter legal rule regarding detention seems to be emerging from these U.S. cases, namely that non-U.S. citizen and nonresident alien detainees held outside U.S. jurisdiction lose their right to sue even in the face of horrible atrocities such as those seen in Abu Ghraib. (25) This...