Family Feud: The Law in War and Peace

Family Feud: The Law in War and Peace

Mini Teaser: American law treats terrorism like an act of war, not a crime. The fact that Europeans don’t doesn’t make their way better.

by Author(s): David B. Rivkin, Jr.Lee A. Casey

In addition to these efforts at generating international political pressure, hundreds of members of the British and European Parliaments have interposed themselves in the U.S. domestic debate over the rights and treatment to be accorded Al-Qaeda and Taliban detainees, filing friend-of-the-court briefs (in the Supreme Court and lower federal courts) in a number of War on Terror cases, including Rasul v. Bush (dealing with federal court jurisdiction over Guantanamo Bay) and Hamdan v. Rumsfeld (dealing with the legality of military commissions).

More recently, Germany and Italy have undertaken prosecutions of individual Americans based on U.S. War on Terror policies. A German court recently issued arrest warrants for thirteen CIA agents for detaining (in Macedonia) a German national on suspicion of Al-Qaeda ties and transporting him to Afghanistan for interrogation. Similarly, Italian prosecutors in Milan have brought indictments against several CIA agents for allegedly taking an imam from Italy to Egypt in an act of "extraordinary rendition." Another Italian court has also ordered an American soldier to be tried in absentia for killing an Italian intelligence officer (who failed to stop for a U.S. checkpoint) in Baghdad, even though the man was exonerated after a U.S. Army investigation.

Although these various efforts-diplomatic, political and judicial-have not yet worked a significant change in U.S. policy, the outcome of this ideological struggle is highly important. This is because-at least in the West-compliance with the rules of warfare has always mattered. Contrary to popular depictions of war, far from being the domain of pure unbridled violence, armed conflict has always been a highly organized affair driven by an elaborate set of rules-in large part because the act of killing human beings requires a great deal of legitimacy to justify it, as compared with normal peacetime pursuits. Accordingly, it is law that provides the necessary legitimacy for key aspects of war, such as how it is launched, how it is prosecuted and the nature of the post-conflict settlement.

What is remarkable about the European assault on the legitimacy of Washington's preferred legal architecture for fighting the War on Terror is its determination to hamper the use of American power even when that use may be, broadly speaking, in European interests. Anti-Americanism has, of course, been a growing phenomenon in Europe since well before the War on Terror began. Its seeds, certainly, could be discerned even before the Cold War ended-in elite European attitudes towards the Reagan Administration's efforts to modernize NATO's defense systems (and has arguably been something of a norm when the sweep of American history is examined). Today, the attitude appears to be "Anybody but the United States." This is rather like the 15th-century Byzantine statesman Lucas Notaras who proclaimed "better the Sultan's turban than the Cardinal's hat", in response to suggestions that Constantinople seek assistance from the Western states in its final struggle with Islamic jihad.

Indeed, there are a number of intriguing parallels between contemporary European attitudes towards the United States and the opinions of the later Byzantines towards the Western European states then growing in power and influence on the international stage. As the senior heirs of a shared religious, cultural and philosophical heritage, the Byzantines viewed these ascendant states at best with an air of amused superiority and often with a vague (and sometimes explicit) contempt. As a Greek historian noted with respect to Westerners at the beginning of the 13th century:

Between us and the Latins is set the widest gulf. We are poles apart. We have not a single thought in common. They are stiff-necked, with a proud affectation of an upright carriage, and love to sneer at the smoothness and modesty of our manners. But we look on their arrogance and boasting as a flux of the snivel which keeps their noses in the air.[3]

Also, the later Byzantines displayed a marked derision for military solutions (diplomacy was very much more their line) at a time when their own armed strength was at a low ebb. The belief that defeat by the Turks was preferable to rescue by the West (although it is not at all clear that this could have been accomplished by a divided West at the time) was, of course, not shared by all Byzantines any more than anti-Americanism is shared by all Europeans. In the end, however, the Sultan's turban is exactly what they all got-and the "Latins" of the West ended up with a real and immediate threat in the very heart of Europe. In other words, everyone lost.

At any rate, whether driven by a Byzantine-style hostility towards its American cousins, by the instinctive desire of all children of the Enlightenment to validate policy choices in moral terms or by a more utilitarian impulse to impose legal restraints on the use of American power which they are otherwise unable to constrain, Europe's decision to challenge the United States on the terrain of law and values is a very serious matter. There can be little doubt that the relentless attacks by European officials and opinion-makers on virtually every one of the Bush Administration's War on Terror policies (even those fully supported by Congress, such as the initial decision to deploy military force against Al-Qaeda and the just-enacted Military Commissions Act of 2006) have undermined support for the American position in Europe and in the United States itself. What these officials have not offered is a plausible alternative that does not require fundamental changes in the American judicial system or expose the civilian population to additional and unnecessary risk.

The Bush Administration did not, following the September 11 attacks, invoke the laws of war on a lark. Nor, despite the tortured (and increasingly tedious) dreams of the president's domestic political enemies, did George W. Bush adopt a "war paradigm" as a means of increasing his personal power. Armed conflict was, and remains, the only legal framework through which the United States could effectively confront Al-Qaeda, taking direct action against its bases and assets around the world. Supporters of the criminal-enforcement model, whether in Europe or America, have never grappled with this stark reality and all of its implications. The key one is that, detention issues aside, if Al-Qaeda and other jihadists are merely criminals, then they cannot be attacked by the military-regardless of where they are or what they are doing. Criminal suspects must be arrested, ordinarily pursuant to a lawful warrant. They cannot just be killed.

Indeed, even the civil law, for all of the advantages it gives prosecutors, does not countenance the extrajudicial killing of suspects. And, if the law of armed conflict is not properly applicable, that is precisely what attacks on terrorists and their bases would be-including the Clinton Administration's 1998 cruise missile attacks on six Al-Qaeda camps in Afghanistan and what appears to have been a pharmaceutical factory in Sudan. The lawful alternative would be to investigate, gather evidence against any individuals who have been identified (if they can be identified) and seek indictments and international arrest warrants. If a government sympathetic to the terrorists in question chose not to honor such warrants, it could effectively shield them from retaliation or justice for their actions since military action would arguably be an act of illegal aggression. In this legal framework, officials of the state who launched an attack on the state harboring the terrorists may well be subjected to criminal liability by an international or domestic tribunal.

At the same time, although a state's permitting the combatants (lawful or unlawful) in an armed conflict to train, plan operations and even launch attacks from its territory against another state would clearly be a casus belli-supporting the use of force in response-it is not at all clear that merely refusing to honor warrants for "criminal suspects" would be sufficient to justify a military attack. Indeed, even the UN Security Council might not be able to authorize the use of force in such a situation.

Other types of pressure could, of course, be brought to bear on a terror-friendly state, but the record of similar past efforts is not promising. Despite a serious sanctions regime, Libya agreed to pay compensation for the destruction of Pan Am Flight 103 only after the United States deployed major military assets against terrorists and their state backers in the region. Abu Nidal, a Palestinian terrorist responsible for more than twenty terrorist attacks killing hundreds of people, lived safely in Libya and Iraq until Saddam Hussein was deposed. Moreover, the criminal justice system's proven inability to prevent attacks by determined, and especially by suicidal, terrorists on the civilian population suggests that reliance on the law-enforcement model would result in additional and unnecessary deaths.

In fact, the United States can physically disrupt Al-Qaeda's overseas operations only if it is at war, and therefore has the legal right to attack and destroy terrorist bases, training centers and operations centers without warning. That said, admittedly, the "War on Terror" was always an unfortunate formulation. Terror, obviously, is a tactic, not an enemy. The Bush Administration appears to have chosen this phrase-whose roots can be traced to the even more politically correct Clinton Administration's claim that the "target" of its 1998 anti-Al-Qaeda strikes was "terror"-not for legal precision, but because it is broad enough to cover wide-ranging hostilities against Al-Qaeda and its many jihadi allies, yet (theoretically) ambiguous enough to avoid giving offense to the Muslim world at large. Unfortunately, as with so many definitional compromises, the term "War on Terror" has caused as many problems as it has solved.

Essay Types: Essay