Why unleashing military force against terrorism is illegal, immoral, and just plain dumb.

• Author: Razumovsky, Galina

"Now this nation that I love/ Has fallen under attack/ A mighty sucker punch came flyin' in/ From somewhere in the back/ Soon as we could see clearly/ Through our big black eye/ Man, we lit up your world/ Like the 4th of July." (1)

1. INTRODUCTION

   The U.S. crusade against armed jihad inspired by the war on terror rhetoric has involved excessive use of force and flagrant violations of human rights, has perpetuated the spread of terrorism, and has eroded U.S. moral authority in the international community. (2) The ubiquitous calls by the U.S. President to take an eye for an eye without clearly identifying the enemy and the use of force in the war on terror convey the message that the U.S. government considers foreign civilian lives readily disposable when it suits its political agenda. (3) As a U.S. Marine awaiting orders to attack Fallujah, a city west of Baghdad, put it, "I'm just ready to get this done. I want to go and kill people, so we can go home." (4) Not only has such roughshod politics emboldened terrorists and led to wide proliferation of their networks, it has discredited the United States as a supporter of the rule of law and human rights. (5) To extricate itself out of this quagmire, the United States must reject the ideology of the war on terror and develop long-term law enforcement strategies for apprehending and prosecuting terrorists and their allies. (6)

   This Note demonstrates that using military force against terrorism is a futile course and suggests that the United States should abandon this approach and turn to internationally coordinated law enforcement efforts. (7) Part II discusses the U.S. President's call to fight global terror, the fanning of Islamic hatred due to heavy civilian losses in host states and the war on terror rhetoric, and the emergence of a geographically dispersed terrorist threat the United States cannot defeat militarily. (8) Part III highlights lack of an international consensus on the notion of terrorism and lamentable disregard for the laws of war and human rights reflected in such U.S. counterterrorism practices as preemptive military action against host states and targeted killing. (9) Part III then outlines law enforcement alternatives to use of military force, including extradition of terrorist suspects and extension of the International Criminal Court (ICC) jurisdiction to terrorism, and points out that lack of a universal definition of terrorism precludes implementation of these solutions. (10) Part IV argues that the U.S. use of force finds insufficient justification in international law, perpetuates terrorist activity, and is unsustainable in view of the wide proliferation of terrorist networks and lack of international support of the militant U.S. stance. (11) Part IV suggests that the only reasonable course of action in this situation is globally coordinated law enforcement, which requires an international consensus on terrorism unlikely to be achieved without cessation of the U.S. use of force. (12) Finally, Part V emphasizes the necessity of criminal prosecution for terrorist activity. (13)

2. FACTS: THE DECLARATION OF THE WAR ON TERROR AND THE SUBSEQUENT EMERGENCE OF A GLOBAL TERRORIST THREAT THE UNITED STATES CANNOT DEFEAT MILITARILY

   1. The U.S. President's Call to Fight Global Terror and the Resultant Disproportionate Civilian Casualties Facilitating Islamic Radicalization

      Shortly after September 11, President Bush gave a highly charged speech in which he accused "enemies of freedom" of having committed an act of war against the United States and called on fellow Americans to respond in kind. (14) In making a case for war, the President linked September 11 with the bombing of the USS Cole and American embassies in Tanzania and Kenya and pronounced that al-Qaeda was following in the path of "all the murderous ideologies of the 20th century" with the goal of "remaking the world." (15) The President declared that his purpose was to destroy the "global terror network" through a "lengthy campaign unlike any other" that would involve all resources at his disposal, including "every necessary weapon of war." (16) Following the defeat of the Taliban, President Bush reaffirmed the U.S. commitment to fighting terror on a global scale and set the stage for the Iraq War. (17) The President appeared unfazed by his failure to convince Muslims worldwide of the justness of his cause and indicated that world opinion was a "secondary" concern. (18)

      Even when diligent investigation foiled terrorist attacks, the lesson offered to the public was not confidence in law enforcement but the constantly repeated "[b]eware of terrorists, they lurk nearby." (19) This paranoia reached a feverish pitch in Senator Conrad Burns's phrase about "faceless" terrorists who "drive taxicabs by day and kill at night." (20) Throughout the self-proclaimed war on terror, the Bush Administration nurtured and exploited the feeling of insecurity in an effort to consolidate executive power and eviscerate basic commitments to the laws of war and human rights. (21) This insecurity drove the nation into the infamous Iraq War, which cost thousands of American deaths and innumerable Iraqi losses and paved the way to Guantanamo, Abu Ghraib, secret CIA detention programs, and extraordinary renditions. (22)

      The staggering numbers of civilian casualties in the invasion and occupation of host states combined with the U.S. practice to keep no track of such losses have raised grave concerns among commentators and have facilitated Islamic radicalizaron. (23) While making even rough estimates of Afghan casualties has been difficult due to the U.S. lack of interest in assessing their scope, there is evidence that the Afghan victims of U.S. forces and other foreign troops "number in the many thousands." (24) Iraqi civilian body counts vary greatly depending on the quoted source: for example, the Costs of War project reports 133,000 civilian casualties from March 2003 to May 2014, the Lancet survey informs of 601,000 violent deaths from March 2003 to June 2006, and the Opinion Research Business survey gives more than 1,000,000 casualties from March 2003 to September 2007. (25) As of November 21, 2014, the Iraq Body Count project estimates 132,509-149,174 violent civilian deaths from the beginning of the Iraq War in 2003, and this count continues to rise as more documents surface. (26) The U.S. disregard for heavy civilian losses in the Afghan and Iraq Wars belies any humanitarian motives behind the U.S. use of force and alienates Muslims and Arabs worldwide. (27)

      Furthermore, targeted killing has been far from "surgical" and has involved disproportionate civilian deaths, prompting retaliatory violence and undermining the targeted population's allegiance to its government. (28) The Bureau of Investigative Journalism puts the number of CIA drone strikes in Pakistan from 2004 to 2014 at 403 and the number of Pakistani civilians killed in these attacks at approximately 416-957. (29) An article by counterinsurgency experts published by The New York Times in 2009 estimates the number of killed Pakistani civilians at 700. (30) The article reports fifty civilian deaths for every militant killed, which is a hit rate of only 2%. (31) According to the New America Foundation, eighty-two U.S. drone attacks in Pakistan took lives of approximately 750-1,000 people since 2006, only twenty of whom were targeted leaders of al-Qaeda, the Taliban, and allied groups. (32) In 2011, a U.S. drone killed a U.S. Marine and a U.S. Navy medic when U.S. Marine commanders in Afghanistan mistook them for Taliban fighters. (33) Similarly, in early 2009, at least fifteen Afghan civilians died because a drone crew figured these harmless Afghans were the Talibani about to attack a U.S. special forces unit. (34) Such random killing intensifies anti-American sentiments within host states and erodes their political stability because their population blames its government for failure to protect civilians from U.S. drones. (35)

   2. The Fanning of the Flames of Hatred Through the Media Portrayal of Arabs, Muslims, and Islam as U.S. Enemies

      Taking its cue from the U.S. government, the media has portrayed the war on terror as a monumental clash of civilizations, which has provided terrorist organizations with a powerful recruiting tool. (36) Lack of legal and moral clarity concerning the U.S. response to terror, which the media tends to depict as a confrontation between good and evil, contributes to the long history of fear and distrust between the West and the Islamic world. (37) As a result, public perception does not differentiate well between friend and foe. (38) Racial profiling of Arab and Muslim Americans during security checks is a consequence of pervasive suspicion existing in this context. (39) Such differential treatment intensifies racial and religious tensions and facilitates transformation of Muslims into terrorists. (40)

   3. The Emergence of a Global Terrorist Threat the United States Cannot Defeat Militarily

      1. The Geographical Dispersion of Terrorist Forces

         Since 2001, al-Qaeda has evolved into a significantly different terrorist organization than the one that orchestrated September 11. (41) At that time, al-Qaeda was comprised mostly of veterans of the Afghan insurgency against the Soviet Union, with a centralized leadership structure and the main base in Afghanistan. (42) Over the past few years, al-Qaeda has disintegrated into numerous semi-autonomous and self-radicalized actors with only tenuous ties to either the remaining nucleus in Pakistan or affiliates elsewhere. (43) While some view this disintegration as a sign of weakness, others are concerned that terrorist groups have become more difficult to detect and potentially more lethal. (44) Currently, al-Qaeda continues to attract recruits and encourage key regional affiliates and networks to pursue a global agenda. (45) There is a distinct possibility that al-Qaeda is...