Armed Conflict With Al Qaida: A Response

Let me first say thanks to all that have taken the time to respond to my first posting. I had originally planned to wait until Friday to provide a comprehensive response to the various issues raised, but I have been so impressed by the quality of the dialogue so far that I’ve decided to post this interim response tonight. I apologize that I can’t provide responses in real time and that I can’t respond to all of the questions, but my government responsibilities prevent me from doing that. I should also note that I have addressed many of the points in my post from this morning on Common Article 3, or will address them in my next post tomorrow on unlawful enemy combatants. I will keep my responses here to those comments most directly responding to yesterday’s entry.

I’ll begin by thanking Charles Garraway and Eric Posner for taking the time to respond in depth to my comments. With regard to Charles’ comments, I appreciate that he agrees with us that it is possible to be at war with a non-state actor, that we can hold combatants in that war until the end of the conflict, and that at the least, we can agree that the conflict in Afghanistan, in which the vast majority of our detainees were picked up, continues.

Charles does seem to suggest that criminal law should be used to prosecute al Qaida operatives found outside Afghanistan (Marko also raised a similar point). As I have noted, we have used criminal law to prosecute some al Qaida operatives found in the United States, such as Zacharias Moussaoui, but I would ask you to consider—in addition to the legal arguments underpinning wartime detention—the practical difficulties of prosecuting an al Qaida member not found in the United States. To begin with, our criminal courts simply do not have extraterritorial jurisdiction over many of these individuals or many of their activities. Some of them had never set foot in the United States or planned specific criminal acts in violation of our federal criminal statutes. One thing that all of our countries have learned since September 11th is that we are facing a different kind of terrorism than we used to face, and we have to expand the reach of our criminal laws. There has been a flurry of activity in the United States and other countries to do just that. But the current effort to expand our criminal laws cannot be made retroactive. Therefore, in many cases there would have been no legal basis to try al Qaida operatives in our courts for violations of our domestic criminal laws. Moreover, in many instances the evidence against these operatives was obtained on the battlefield, even where the detainees themselves were captured elsewhere. Our federal courts require a chain of custody to be presented for all evidence introduced at trial, and this could pose a great deal of difficulty for our forces. Ultimately, we think we are not legally obligated to try al Qaida combatants under the laws of war, but have set up military commissions to prosecute those who have committed the most serious violations of the laws of war.

Eric Posner invites me to say what is as stake in the argument about the applicability of international law to the conflict with al Qaida. Fundamentally, what is at stake is the reputation of the United States as a nation that takes international law seriously and that does not bend the law to meet our immediate needs. It is true that when novel situations present themselves, governments have some flexibility in how they adapt traditional rules to new realities. But United States cannot regard international law as something to be completely redone whenever a new challenge presents itself, and must care about the implications down the road of the positions that it decides to defend today. A reputation for consistency and reasonableness in its approach to its international obligations is valuable to the United States. Without that, other countries will be less willing to cooperate with us and live up to their own international law commitments. Even though international law constraints are sometimes limited, they are nevertheless real and substantive and we cannot maintain that we are a nation that abides by law if we say we have the choice of disregarding international law. As lawyers, we must take into account not just the texts and decisions that make up the building blocks of international law, but also the quality and integrity of the arguments we make and the analogies we draw in framing our positions on international law. It is in the broader interests of the United States not to let these arguments become merely a matter of convenience.

Turning now to some of the other posts, “Non liquet” asks how we will know when the war with al Qaida is over. This is an important question. Of course, in any war, you don’t know how long the war is going to go on. There have been wars that have gone on for five years, ten years, thirty years, one hundred years. But the fact that a particular conflict with an enemy may go on indefinitely does not mean we should simply release all members of the enemy we are holding so long as that conflict is continuing. There is a reason that under customary principles of international law, you may hold the people until the end of a conflict, and that is to keep dangerous people off the battlefield.

Nevertheless, we recognize that the conflict with al Qaida is not a traditional conflict that will end with an armistice agreement on a battleship. We could reach the point where we have so decimated al Qaida that there may be so few operatives left that we don’t think they are actually engaged in a major war with us. But as a practical matter, with respect to the people we are holding in Guantánamo, we have added an annual administrative review process to determine whether an individual detainee continues to pose a threat to the United States or its allies. In a sense, we ask if the war is over with respect to that person. Even if al Qaida continues to be fighting us, if an individual can credibly say, “I want to stop fighting, I want to just go back and join my community,” and in fact the community will credibly commit, “We will take responsibility for this person, and make sure that he doesn’t go back to fighting,” then we will release people. We have released or agreed to release, subject to their countries taking them back, more than one hundred people pursuant to that process. Thus, the ARBs balance our authority to detain fighters so they do not come back to fight us again against our desire not to hold anyone any longer than necessary.

Marko asks how the United States interprets the Supreme Court’s decision in Hamdan. As I described in depth this morning, the Supreme Court has held that the armed conflict with al Qaida is not a conflict between states, and that the conflict is governed by Common Article 3 of the Geneva Conventions. As Marty Lederman accurately anticipated, the Administration reads the Hamdan decision to accept that the U.S. is in an armed conflict – and therefore that the laws of war are appropriate to apply – but that the armed conflict is not of an international character. If the Supreme Court had thought that we were in a state of armed conflict with al Qaida, it is hard to see how the Court could have applied the Geneva Conventions or Common Article 3 at all. Marko further suggests that if the Geneva Conventions don’t apply to an armed conflict, it cannot be considered one under international law. I agree with Marty Lederman’s on point critique of this argument.

Marko also argued that “the vast majority of legal scholars” believe that a state cannot be in an armed conflict with a non-state actor. While I recognize there is some disagreement among international lawyers on this point, there are certainly numerous lawyers and academics who believe that the better legal position is that a state of armed conflict may exist between a state and a non-state actor. As my previous entry describes, 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, and law of war treaties that govern the treatment of detainees in armed conflict, including Additional Protocol 1 of the Geneva Conventions, contemplate conflicts between state and non-state actors across national borders. I have already cited Thomas Franck’s article “Terrorism and the Right of Self-Defense, available here. I would also refer readers to Roy Schondorf’s excellent recent article analyzing the legal regime applicable to conflicts between states and non-state actors: “Extra-State Armed Conflicts: Is There A Need for A New Legal Regime?” available here.

But I take Marko’s larger point to be an expression of frustration with what he considers to be the inadequate protections provided enemy combatants by Common Article 3. But to be clear, this is a dispute on policy, not law. As I will explain in more depth tomorrow, there are good policy reasons why the United States is not treating the al Qaida detainees as POWs even though they are not legally entitled to that status. But it’s important to identify this as a policy, not legal, disagreement.

Katherine’s questions seem to go to the concern I mentioned in yesterday’s post, that to say that we are in an armed conflict with al Qaida is to give the United States a blank check to act as it pleases in combating the threat. To pick up on some of her particular points, however, one finds that in fact in war there are specific legal protections to address the concerns she raises. First, she suggests that because we are in an armed conflict the Convention Against Torture does not apply. While the law of armed conflict is the lex specialis governing the detainee operations in our conflict with al Qaida, torture is clearly and categorically prohibited under the law of armed conflict, as well as under the CAT. Obligations to prevent cruel, inhuman, or degrading treatment are similarly found in both bodies of law.

Second, she suggests that detainees in this war get inadequate review before being detained. Admittedly, identifying members of the Taliban and al Qaida is difficult, because—among other things—unlike in a traditional war, the Taliban and al Qaida do not wear uniforms and insignia. Nevertheless, our forces worked hard to detain only those individuals who were part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. To ensure that we are holding the right people, every detainee in Guantanamo has his case reviewed by a formal Combatant Status Review Tribunal, which determines whether a detainee is properly classified as an enemy combatant. The detainee has the assistance of a military officer, may present evidence, and may appeal the determination of the CSRT to our federal courts. Nearly 40 detainees have been released as a result of this process. It is simply not correct to say that detainees do not have meaningful review of their detention.

Finally, on Kashi’s comments about my discussion of the Caroline case—that case involved private persons on the American side of the US-Canadian border supporting insurrectionist efforts in Canada, then retreating back to sanctuaries on the American side of the border in upstate New York, where they were attacked by the British. The case involved two issues relevant here: first, whether acts by private actors (as opposed to acts by state militaries) could trigger a right of self-defense where the government of the host state was unable or unwilling to take action; and, second, whether the threat posed by those private actors satisfied the conditions of necessity, proportionality and immediacy so that the British action would be justified. But there was no question that the acts of private actors could trigger the right of self-defense where the host government was unable or unwilling to deal with the situation. Secretary Webster may not have accepted that the facts were right to legally justify the use of force in the Caroline case, but the British and Americans both accepted the underlying principle.

With respect to immediacy, or what is usually referred to as imminence, the longstanding US view has been that a state need not wait until it is actually attacked before using force in self-defense, and that view has been more strongly embraced than ever in recent years, including for example by the UN Secretary-General in his In Larger Freedom report in 2005. The US continues to accept the importance of the distinction between imminent and non-imminent threats, but—in the face of the threats now posed by terrorism and proliferation of weapons of mass destruction—the principles of self-defense must be understood and applied in the security environment in which the US and other states now find themselves. But it is also important to note that, insofar as the conflict with al-Qaida is concerned, imminence is not a “live” issue, as the United States has been subject to actual—as opposed to anticipated—attack.

I look forward to continuing this discussion over the rest of the week.