The Law of War in the War on Terror

What are the boundaries of the Bush administration's "war on terrorism?" The recent battles fought against the Afghan and Iraqi governments were classic wars between organized military forces. But President George W. Bush has suggested that his campaign against terrorism goes beyond such conflicts; he said on September 29, 2001, "Our war on terror will be much broader than the battlefields and beachheads of the past. The war will be fought wherever terrorists hide, or run, or plan."

This language stretches the meaning of the word "war." If Washington means "war" metaphorically, as when it speaks about a "war" on drugs, the rhetoric would be uncontroversial, a mere hortatory device intended to rally support for an important cause. Bush, however, seems to think of the war on terrorism quite literally—as a real war—and this concept has worrisome implications. The rules that bind governments are much looser during wartime than in times of peace. The Bush administration has used war rhetoric precisely to give itself the extraordinary powers enjoyed by a wartime government to detain or even kill suspects without trial. In the process, the administration may have made it easier for itself to detain or eliminate suspects. But it has also threatened the most basic due process rights.

LAW AT PEACE, LAW AT WAR

By literalizing its "war" on terror, the Bush administration has broken down the distinction between what is permissible in times of peace and what can be condoned during a war. In peacetime, governments are bound by strict rules of law enforcement. Police can use lethal force only if necessary to meet an imminent threat of death or serious bodily injury. Once a suspect is detained, he or she must be charged and tried. These requirements—what one can call "law-enforcement rules"—are codified in international human rights law.

In times of war, law-enforcement rules are supplemented by a more permissive set of rules: namely, international humanitarian law, which governs conduct during armed conflict. Under such "war rules," unlike during peacetime, an enemy combatant can be shot without warning (unless he or she is incapacitated, in custody, or trying to surrender), regardless of any imminent threat. If a combatant is captured, he or she can be held in custody until the end of the conflict, without any trial.

These two sets of rules have been well developed over the years, both by tradition and by detailed international conventions. There is little law, however, to explain exactly when one set of rules should apply instead of the other. For example, the Geneva Conventions—the principal codification of war rules —apply to "armed conflict," but the treaties do not define the term. Fortunately, in its commentary on them, the International Committee of the Red Cross (ICRC), the conventions' official custodian, has provided some guidance. One test that the ICRC suggests can help determine whether wartime or peacetime rules apply is to examine the intensity of hostilities in a given situation. The Bush administration, for example, has claimed that al Qaeda is at "war" with the United States because of the magnitude of its attacks on September 11, 2001, its bombings of the U.S. embassies in Kenya and Tanzania, its attack on the U.S.S. Cole in Yemen, and the bombing of residential compounds in Saudi Arabia. Each of these attacks was certainly a serious crime warranting prosecution. But technically speaking, was the administration right to claim that they add up to a war? The ICRC's commentary does not provide a clear answer.

In addition to the intensity of hostilities, the ICRC suggests considering factors such as the regularity of armed clashes and the degree to which opposing forces are organized. Whether a conflict is politically motivated also seems to play an unacknowledged role in deciding whether it is a "war" or not. Thus organized crime or drug trafficking, although methodical and bloody, are generally understood to fall under law-enforcement rules, whereas armed rebellions, once sufficiently organized and violent, are usually seen as "wars." The problem with these guidelines, however, is that they were written to address political conflicts rather than global terrorism. Thus they do not make it clear whether al Qaeda should be considered an organized criminal operation (which would not trigger the application of war rules) or a rebellion (which would).

Even in the case of war, another factor in deciding whether law-enforcement or war rules should be applied is the nature of a given suspect's involvement. Such an approach can be useful because war rules treat as combatants only those who are taking an active part in hostilities. Typically, this category includes members of a military who have not laid down their arms as well as others who are fighting or approaching a battle, directing an attack, or defending a position. Under this rule, even civilians who pick up arms and start fighting can be considered combatants and treated accordingly. But this definition is difficult to apply to terrorism, where roles and activities are clandestine and a person's relationship to specific violent acts is often unclear.

HARD CASES

Given that so much confusion exists about whether to apply wartime or law-enforcement rules to a given situation, a better approach would be to make the decision based on its public policy implications. Unfortunately, the Bush administration seems to have ignored such concerns. Consider, for example, the cases of Jose Padilla and Ali Saleh Kahlah al-Marri. Federal officials arrested Padilla, a U.S. citizen, in May 2002 when he arrived from Pakistan at Chicago's O'Hare Airport, allegedly to scout out targets for a radiological ("dirty") bomb. As for al-Marri, a student from Qatar, he was arrested in December 2001 at his home in Peoria, Illinois, for allegedly being a "sleeper" agent: an inactive terrorist who, once activated, would help others launch attacks. President Bush, invoking war rules, has declared both men to be "enemy combatants," allowing the U.S. government to hold them without charge or trial until the end of the war against terrorism—whenever that is.

But should Padilla and al-Marri, even if they have actually done what the government claims, really be considered warriors? Aren't they more like ordinary criminals? A simple thought experiment shows how dangerous are the implications of treating them as combatants. The Bush administration has asserted that the two men planned to wage war against the United States and therefore can be considered de facto soldiers. But if that is the case, then under war rules, the two men could have been shot on sight, regardless of whether they posed any immediate danger to the United States (although they might have been spared under what is known as the doctrine of "military necessity," which holds that lethal force should not be used if an enemy combatant can be neutralized through lesser means). Under the administration's logic, then, Padilla could have been gunned down as he stepped off his plane at O'Hare, and al-Marri as he left his home in Peoria. That, after all, is what it means to be a combatant in time of war.

But the Bush administration has not claimed that either suspect was anywhere near to carrying out his alleged terrorist plan. Neither man, therefore, posed the kind of imminent threat that would justify the use of lethal force under law-enforcement rules. Given this fact, it would have been deeply disturbing if they were shot as enemy soldiers. Of course, the White House has not proposed killing them; instead, it plans to detain the two men indefinitely. But if Padilla and al-Marri should not be considered enemy combatants for the purpose of killing them, they should not be considered enemy combatants for the purpose of detaining them, either.

A similar classification problem, although with a possibly different result, arose in the case of Qaed Salim Sinan al-Harethi. Al-Harethi, who Washington alleges was a senior al Qaeda official, was killed by a drone-fired missile in November 2002 while driving in a remote tribal area of Yemen. Five of his companions, including a U.S. citizen, also died in the attack, which was carried out by the CIA. The Bush administration apparently considered al-Harethi to be an enemy combatant for his alleged involvement in the October 2000 U.S.S. Cole bombing. In this instance, the case for applying war rules was stronger than with Padilla or al-Marri (although the Bush administration never bothered to spell it out). Al-Harethi's mere participation in the 2000 attack on the Cole would not have made him a combatant in 2002, since he could have subsequently withdrawn from al Qaeda; war rules permit attacking only current combatants, not past ones. And if al-Harethi were a civilian, he could not have legally been attacked unless he was actively engaged in hostilities at the time. But the administration alleged that al-Harethi was a "top bin Laden operative in Yemen," implying that he was in the process of preparing future attacks. If true, this would have made the use of war rules against him more appropriate. And unlike in the cases of Padilla and al-Marri, arresting al-Harethi may not have been an option. The Yemeni government has little control over the tribal area where he was killed; indeed, 18 Yemeni soldiers had reportedly died in an earlier attempt to arrest him.

Although there may have been a reasonable case for applying war rules to al-Harethi, the Bush administration has applied these rules with far less justification in other episodes outside the United States. For example, in October 2001, Washington sought the surrender of six Algerian men in Bosnia. At first, the U.S. government followed law-enforcement rules and secured the men's arrest. But then, after a three-month investigation, Bosnia's Supreme Court ordered the suspects released for lack of evidence. Instead of providing additional evidence, however, Washington simply switched to war rules. It pressured the Bosnian government to hand the men over anyway and whisked them out of the country—not to trial, but to indefinite detention at the U.S. naval base at Guantánamo Bay.

The administration followed a similar pattern in June 2003, when five al Qaeda suspects were detained in Malawi. Malawi's high court ordered local authorities to follow the law and either charge or release the five men, all of whom were foreigners. Ignoring local law, the Bush administration then insisted that the men be handed over to U.S. security forces instead. The five were spirited out of the country to an undisclosed location—not for trial, but for interrogation. The move sparked riots in Malawi. The men were released a month later in Sudan, after questioning by Americans failed to turn up any incriminating evidence.

A BAD EXAMPLE

These cases are not anomalies. In the last two and a half years, the U.S. government has taken custody of a series of al Qaeda suspects in countries such as Indonesia, Pakistan, and Thailand. In many of these cases, the suspects were not captured on a traditional battlefield. Yet instead of allowing the men to be charged with a crime under local law-enforcement rules, Washington had them treated as combatants and delivered to a U.S. detention facility.

There is something troubling about such a policy. Put simply, using war rules when law-enforcement rules could reasonably be followed is dangerous. Errors, common enough in ordinary criminal investigations, are all the more likely when a government relies on the kind of murky intelligence that drives many terrorist investigations. If law-enforcement rules are used, a mistaken arrest can be rectified at trial. But if war rules apply, the government is never obliged to prove a suspect's guilt. Instead, a supposed terrorist can be held for however long it takes to win the "war" against terrorism. And the consequences of error are even graver if the supposed combatant is killed, as was al-Harethi. Such mistakes are an inevitable hazard of the battlefield, where quick life-and-death decisions must be made. But when there is no such urgency, prudence and humanity dictate applying law-enforcement standards.

Washington must also remember that its conduct sets an example for governments around the world. After all, many other states would be all too eager to find an excuse to eliminate their enemies through war rules. Israel, to name one, has used this rationale to justify its assassination of terrorist suspects in Gaza and the West Bank. It is not hard to imagine Russia doing the same to Chechen leaders in Europe, Turkey using a similar pretext against Kurds in Iraq, China against Uighurs in Central Asia, or Egypt against Islamists at home.

Moreover, the Bush administration should recognize that international human rights law is not indifferent to the needs of a government facing a security crisis. Criminal trials risk disclosure of sensitive information, as the administration has discovered in prosecuting Zacarias Moussaoui. But under a concept known as "derogation," governments are permitted to suspend certain rights temporarily when they can show that it is necessary to meet a "public emergency threatening the life of the nation." The International Covenant on Civil and Political Rights, which the United States has ratified, requires governments seeking derogation to file a declaration justifying the move with the un secretary-general. Among the many governments to have done so are Algeria, Argentina, Chile, Colombia, Peru, Poland, Russia, Sri Lanka, and the United Kingdom. Yet the United States, determined to avoid the formal scrutiny involved, has not bothered.

The Justice Department has defended the administration's use of war rules by citing a U.S. Supreme Court decision from World War II, Ex Parte Quirin. In that case, the Court ruled that German army saboteurs who landed in the United States could be tried as enemy combatants before military commissions. The Court distinguished its ruling from an earlier Civil War-era case, Ex Parte Milligan, which held that a civilian resident of Indiana could not be tried in military court because local civil courts remained open and operational. Noting that the German saboteurs had entered the United States wearing at least parts of their uniforms, the Court in Quirin held that the Milligan protections applied only to people who are not members of an enemy's armed forces.

There are several reasons, however, why Quirin does not justify the Bush administration's broad use of war rules. First, the saboteurs in Quirin were agents of a government—Germany's—with which the United States was obviously at war. Whether the United States is actually at "war" with al Qaeda, however, remains uncertain under the law. Second, although the Court in Quirin defined a combatant as anyone operating with hostile intent behind military lines, the case has arguably been superseded by the 1949 Geneva Conventions (ratified by the United States), which, as noted above, rule that people are combatants only if they either are members of an enemy's armed force or are taking active part in hostilities. Quirin thus does not help determine whether, under current law, people such as Padilla and al-Marri should be considered civilians (who, under Milligan, must be brought before civil courts) or combatants (who can face military treatment). Moreover, Quirin only establishes who can be tried before a military tribunal. The Bush administration, however, has asserted that it has the right to hold Padilla, al-Marri, and other detained "combatants" without a trial of any kind—in effect, precluding serious independent assessment of the grounds for potentially lifelong detention. Finally, whereas the government in Quirin was operating under a specific grant of authority from Congress, the Bush administration has acted on its own in taking the difficult decision to treat Padilla and al-Marri as combatants, without allowing the popular input that a legislative debate would provide.

STAY SAFE

The United States should not lightly suspend due process rights, as the Bush administration has done with its "enemy combatants"—particularly when a mistake could result in death or lengthy detention without charge or trial. Law-enforcement rules should presumptively apply to all suspects in the "war" on terror, and the burden should fall on those who want to invoke war rules to demonstrate that they are necessary and appropriate.

The best way to determine if war rules should apply would be through a three-part test. To invoke war rules, Washington should have to prove, first, that an organized group is directing repeated acts of violence against the United States, its citizens, or its interests with sufficient intensity that it can be fairly recognized as an armed conflict; second, that the suspect is an active member of an opposing armed force or is an active participant in the violence; and, third, that law enforcement means are unavailable.

Within the United States, the third requirement would be nearly impossible to satisfy—as it should be. Given the ambiguities of terrorism, we should be guided more by Milligan's affirmation of the rule of law than by Quirin's exception to it. Outside the United States, Washington should never resort to war rules away from a traditional battlefield if local authorities can and are willing to arrest and deliver a suspect to an independent tribunal—regardless of how the tribunal then rules. War rules should be used in such cases only when no law-enforcement system exists (and the other conditions of war are present), not when the rule of law happens to produce inconvenient results. Even if military forces are used to make an arrest in such cases, law-enforcement rules can still apply; only when attempting an arrest is too dangerous should war rules be countenanced.

This approach would recognize that war rules have their place—but that, given the way they inherently compromise fundamental rights, they should be used sparingly. Away from a traditional battlefield, they should be used, even against a warlike enemy, as a tool of last resort—when there is no reasonable alternative, not when a functioning criminal justice system is available. Until there are better guidelines on when to apply war and law-enforcement rules, this three-part test, drawn from the policy consequences of the decision, offers the best way to balance security and civil rights. In the meantime, the Bush administration should abandon its excessive use of war rules. In attempting to make Americans safer, it has made all Americans, and everyone else, less free.