Armed Conflict With Al Qaida?

My next three posts will cover issues relating to the law of war. I know that many people have objected passionately to some of the Administration’s policies and legal positions relating to detainees. I have heard many assertions that U.S. detainee policies violate international law, and I must say that I think many of the criticisms are based on an inaccurate understanding of applicable international law or on aspirational statements of international law as critics wish it were, rather than as it now exists. I am not going to try in this limited space to rebut or discuss every one of these criticisms. I want instead to describe in detail our legal thinking on three specific matters. My purpose is not to persuade readers to agree with Administration policies. But I would ask readers to engage in serious legal analysis. If you question our approach, I would ask you to consider whether a different approach is actually legally required or simply preferable as a matter of policy. Did a realistic alternative approach exist, and how would that approach have worked better in practice?



I want to begin by addressing two related issues that have come up frequently in my discussions with my European colleagues. The first issue is whether the law of war is an appropriate legal framework in which to respond to terrorist attacks. The second issue is whether a state can be in an armed conflict with a non-state actor outside that state’s territory.



The phrase “the global war on terror”—to which some have objected– is not intended to be a legal statement. The United States does not believe that it is engaged in a legal state of armed conflict at all times with every terrorist group in the world, regardless of the group’s reach or its aims, or even with all of the groups on the State Department’s list of Foreign Terrorist Organizations. Nor is military force the appropriate response in every situation across the globe. When we state that there is a “global war on terror,” we primarily mean that the scourge of terrorism is a global problem that the international community must recognize and work together to eliminate. Having said that, the United States does believe that it is in an armed conflict with al Qaida, the Taliban, and associated forces.



Let me start back in 2001. There was widespread recognition that the United States suffered an armed attack by al Qaida on September 11, and that, under the principle of self-defense, the United States was entitled to use force against al Qaida and Taliban forces in Afghanistan. No one in the international community suggested at that time that the United States was not entitled to use force to respond to those terrible attacks. (See here for a discussion about why law enforcement tools were not – and are not – sufficient on their own to stop future imminent attacks against the United States from al Qaida.)



Why did we have a right to use military force? We did so in self-defense against the Taliban because it had allowed al Qaida to use Afghanistan as an area from which to plot attacks and train in the use of weapons, and it was unwilling to prevent al Qaida from continuing to do so. After giving the Taliban an opportunity to surrender those it was harboring (an opportunity it refused), we took military action against its members.



We also were justified in using military force in self-defense against al Qaida, as an entity that planned and executed violent attacks with an international reach, magnitude, and sophistication that previously could be achieved only by nation states. Its leaders explicitly declared war against the United States, and al Qaida members attacked our embassies, our military vessels, our financial center, and our military headquarters, killing more than 3,000 people. Al Qaida also had a military command structure and world-wide affiliates. In our view, the United States was justified in responding in self-defense, just as we would have been if a nation had committed these acts against us. Indeed, the UN Security Council recognized our right of self-defense in resolution 1368 on September 12. And if the United States did not have the right to use force against al Qaida and the Taliban, we would have had no acceptable way to defend our citizens after the most devastating attack against the United States in history. Given the Taliban’s unwillingness to cooperate with the international community to bring the perpetrators of the September 11th attack to justice, one cannot reasonably argue that the only recourse the United States had against al Qaida was to file diplomatic protests or futile extradition requests to Mullah Omar.



So we found ourselves in an armed conflict in Afghanistan starting in October 2001. In the course of that conflict, we detained members of al Qaida and the Taliban, some of whom are now in Guantanamo. U.S. or allied forces captured the majority of these detainees in late 2001 or early 2002 in or near Afghanistan. One of the most basic precepts in the law of armed conflict is that states may detain enemy combatants until the cessation of hostilities. It cannot reasonably be argued that the United States and its allies had the right to use force in Afghanistan but did not have the right to detain individuals as an incident to the armed conflict that ensued, unless we planned to charge them with a crime. The Supreme Court explicitly has affirmed in Hamdi that the United States had the right to detain enemy combatants in the armed conflict that ensued after our decision to act in self-defense.



Some critics agree that we were in a war with the Taliban and al Qaida in Afghanistan in 2001-02, and that our detention of at least some of the detainees was justified under the law of war. But they argue that the conflict ended in June 2002 with the establishment of Afghanistan’s new government and that our legal basis for holding any detainees ended at that time. But this assertion is not consistent with the facts on the ground, because the Taliban continues to fight U.S. and coalition forces in Afghanistan. We see the Afghanistan conflict as a continuing conflict that began in 2001, and believe that the United States is not obligated to release any Taliban detainees we currently hold in Afghanistan or Guantanamo, only to see them return to kill U.S. and coalition forces. Anybody who questions whether this conflict continues should consider that combat operations over the past few months have resulted in the deaths of several hundred Taliban fighters and a number of U.S., European, and Canadian forces.



Equally important, however, we believe that the United States was and continues to be in an armed conflict with al Qaida, one that is conceptually and legally distinct from the conflict with the Taliban in Afghanistan. It cannot reasonably be argued that the conflict with al Qaida ended with the closure of al Qaida training camps and the assumption of power by a new government in Afghanistan. Al Qaida’s operations against the United States and its allies continue not only in and around Afghanistan but also in other parts of the world. And because we remain in a continued state of armed conflict with al Qaida, we are legally justified in continuing to detain al Qaida members captured in this conflict.



Let me respond to two arguments I often hear as to why it is not correct to characterize this conflict as a war. First, some argue that a legal state of armed conflict can only occur between two nation states and that a state may not use force against a non-state entity. This contention is incorrect. The international rules regarding the right to use force, including those reflected in Article 51 of the UN Charter, do not differentiate between an armed attack by a state and an armed attack by another entity. This makes logical sense: The principle of self-defense permits a state to take armed action to protect its citizens against external uses of force, regardless of the source. It is true that most past wars were between states, or existed within the territorial limits of a single state, but this is an historical fact, not a legal limitation on the concept of armed conflict.



Over a century of state practice supports the conclusion that a state may respond with military force in self defense to attacks by a non-state actor from outside the state’s territory, at least where the harboring state is unwilling or unable to take action to quell the attacks. This includes the famous 1837 case of the Caroline, in which British forces in Canada entered the United States and set fire to a vessel that had been used by private American citizens to provide support to Canadian rebels, killing two Americans in the process. Even law of war treaties that govern the treatment of detainees in armed conflict contemplate conflicts between state and non-state actors across national borders. Common Article 3 of the Geneva Conventions expressly contemplates armed conflicts between a state party and non-state actors. And any country that is party to Additional Protocol I of the Geneva Conventions, which contains additional rules applicable to international armed conflicts and also applies to certain conflicts with groups engaged in wars of national liberation, has acknowledged implicitly that a state may be in an international armed conflict with a non-state actor.



For an explanation of how U.N. Security Council resolutions and the U.N. Charter also contemplate States engaging in armed conflict with non-state actors, please see Thomas Franck’s article “Terrorism and the Right of Self Defense,” available here.



The second argument I hear is that the United States may have been justified in using force against, and detaining members of, al Qaida in Afghanistan, but it is not lawful for us to use military force against or detain members of al Qaida who were picked up outside Afghanistan. This argument seems more motivated by a fear of the implications about the possible scope of the conflict than by actual legal force or logic. We would all be better off if al Qaida limited itself to the territory of Afghanistan, but unfortunately, that is not the reality we face. No principle of international law limits to a single territory a state’s ability to act in self-defense, when the threat comes from areas outside that territory as well. This is not to suggest that, because the United States remains in a state of armed conflict with al Qaida, the United States will use military force against al Qaida in any state where an al Qaida terrorist may seek shelter. The U.S. military does not plan to shoot terrorists on the streets of London. As a practical matter, though, a state must prevent terrorists from using its territory as a base for launching attacks. As a legal matter, where a state is unwilling or unable to do so, it may be lawful for the targeted state to use military force in self-defense to address that threat.



One reason critics vigorously refuse to acknowledge that we have been and continue to be in a legal state of war with al Qaida is that they fear such an acknowledgement would give the United States a blank check to act as it pleases in combating al Qaida. However, recognizing a state’s right to take certain actions in self-defense is not to give a state carte blanche in responding to the terrorist threat. A state acting in self-defense must comply with the UN Charter and fundamental law of war principles. And whether a state legitimately may use force will necessarily require a careful review of the relevant law and specific facts, and will depend on a variety of factors, including the nature and capabilities of the non-state actor; the patterns of activity of that non-state actor; and the level of certainty a state has about the identity of those it plans to target. It also will depend on the state from which a non-state actor is launching attacks – specifically, whether that state consents to self-defense actions in its territory, or whether the state is willing and able to suppress future attacks. Rather than suggest that the use of force against al Qaida, including the detention of al Qaida operatives, is illegitimate, it makes more sense to examine the conditions under which force and detention may be used.



Let me close by emphasizing that I am not suggesting that military force and the laws of war are the ONLY appropriate or legal approach to dealing with international terrorism generally or al Qaida in particular. We recognize that other countries, like the UK, Germany, and Spain, may choose to use their criminal laws to prosecute members of al Qaida. Indeed, the United States itself continues to use its criminal laws to prosecute members of al Qaida, like Zacharias Moussaoui, who find their way inside our own territory in appropriate cases. But we do believe that it was – and continues to be – legally permissible to use military force and apply the laws of war, rather than rely on criminal laws, to deal with members of al Qaida in certain cases, such as those fighting or detained by U.S. military personnel outside the United States.