The Network of Terror and the Network of Law

by Chris Borgen

Over at NPR’s Justice Talking blog, I have a post trying to tie together some ideas relating to Fourth Generation Warfare and the rule of law.

Here’s the opening:

One of the tropes of the current Administration is that the Global War on Terror is a new kind of war and a new kind of war needs new rules. This has been the heart of arguments supporting “enhanced” interrogation techniques, detaining suspects without charge in Guantanamo and elsewhere, easing of restrictions on domestic wiretapping, and the use of military commissions to try suspected terrorists, among other policies. But does this claim of a new war requiring new rules hold up under scrutiny?

Any comments (either here or at Justice Talking) would be welcome.

http://opiniojuris.org/2007/08/28/the-network-of-terror-and-the-network-of-law/

6 Responses

  1. I’ll jump in (as usual). The first thing I did in thinking about this after 9/11 was to read Grotius’ Laws of War and Laws of Peace. In it he speaks of wars between princes and private men going back to antiquity. The communications revolution certainly permits coordinated efforts by private persons around the world in a decentralized network but aren’t we seeing the state do the same? For example, rather than a gulag in a place we can now have the virtual moving gulag where the place someone is held is a room in a building in one country, a soviet era base in another, and a prison in Mauretania.

    We should not spend so much time focusing on the risks of non-state actors in this war to belittle the enormous power that states have to work together to counteract those non-state actors. The question (I would say it is the fundamental enlightenment question we confront) is banding together to do what? To go back to colonial style destruction of populations, reprisals, etc like the Herrero in Southwest Africa at the turn of the 20th century or the Belgians in the Congo?

    I would encourage people to do what de Gaulle did. de Gaulle understood that the mechanization of the German military was the key difference between defeat and victory for the French military – not some special quality of the Germans.

    In the current setting, the network of persons involved in non-state actors that do violence reminds me of the networks of other types of non-state actors that are able to move information around rapidly to have effect in different places. It also reminds me of the networks of resistance cells in France during WWII where the structure was to ensure survivability of the cell.

    In all of these are humans, and the question that is central to me is what is a state doing to preserve dignity while it fights for its survival. The constraints of the laws of war bind us. The non-state actor who does not follow those rules but takes up arms can be killed and if captured can be subject to war crimes (POW or security detainee) trial for not following the laws of war.

    I love these new visions of 4GW and all that, but I hope that we keep in mind that ultimately it is human passions and thoughts that are driving the action and that we have not changed that much in 2000 years (at least it seems to me). And that the rules that have developed to civilize war are hopefully ones that help us turn enemies into at least colleagues if not friends simply because we recognize their humanity in the way we act. There are mad dogs in every group who want to kill and they are killed. But, I am less certain that there are vast legions of mad dogs in the non-state actors or fellow travelers.

    Best,

    Ben

  2. I also would like to say that sometimes I am acerbic in my comments here or may be perceived as that, but I do appreciate the chance provided by the exchanges that you put up here to discuss or raise concerns. It helps me in my research and in my thinking about international law.

    Best,

    Ben

  3. Chris: Very interesting post. I agree with almost all of your ideas; the only place I differ is on your conclusion that 4GW cannot threaten the existence of the state. On one level, that’s true: al Qaeda and other international terrorists will never destroy the American infrastructure or occupy the US as happened to Germany during WWII. But that’s not quite the right metric as the real threat from terrorism is from the reaction of the state to the attacks. The US is uniquely ill-suited to respond to terrorism in a calm, rational fashion, due to the media, civil libertarians, governmental structure and incentives, public opinion, et cetera, et cetera. We need to take steps to change that reaction, but we also need to be realistic about how the US will react to the next attack.

    To that end, while I don’t support many/most of the policies implemented by the Bush Administration, I do recognize the need to make reasonable and appropriate trade-offs. For example, I support the domestic wiretapping program (with appropriate congressional authorization and oversight) as a reasonable and necessary encroachment on domestic liberty. The same logic and thinking needs to be applied to international law. The Geneva Conventions are excellent and relevant to 3GW, but not so much for 4GW. I’m not saying that the approach of Bush has been right, but the answer isn’t just to rely on our old tools. Terrorism does pose a serious threat to this country and the western democracies, albeit not the existential one claimed by Bush.

  4. This is not a new type of war, but a very old one. When 19 members of an al Qaeda special operations unit hijacked airliners, they became “pirates” under international law. A pirate has always been a member of a private (non-state) military organization that depended on out-gunning regular merchant ships. The only way to defeat them was to send regular military forces in a Ship of the Line.

    The law was fairly simple. Captured pirates received a short military trial and were then hung from the yardarm. Nobody imagined they were entitled to civilian justice. Nobody claimed that the British government or its democratic institutions were diminished when captured pirates faced summary justice. If Britain and the US have survived for 300 years with that history, we will survive the next few years.

    Do not confuse the current war on al Qaeda pirates with some ambiguous war on “terrorism”. The 9/11 attack was a military attack on the Pentagon and a major economic/industrial target conducted by a force that methods banned by international law. Terrorists blow up schools, pizza parlors, and Oklahoma City Federal Buildings. If al Qaeda had F-16s and used them to attack the Pentagon and World Trade Center, we would have trouble distinguishing their attacks from any the US has conducted in our recent wars.

    Home grown terrorism is a legitimate law enforcement problem. A military attack from a foreign army that on 9/11 numbered 18,000 Mujahidin light infantry is a military problem. The proper response to a foreign pirate unit is to send the modern version of a Ship of the Line and Marines, not a bunch of lawyers or investigators.

    When will the war end? Well piracy continues today and was not wiped out by any successful sinking of a pirate ship or hanging of a pirate crew. The war on al Qaeda will end when the last Mujahidin is swinging from whatever we use for a yardarm now that ships are no longer powered by wind. Meanwhile, while the basic things that the US stands for will damaged if we substitute force for legitimate law enforcement, nothing will be improved and a lot of people will be killed if we fail to use military force to defend ourselves from a clear military (though non-state) threat.

    When the pirates learn to use the Internet, commercial jet aircraft, disposable cell phones, and maybe even WMD, they clearly have updated their technology. Well, nobody would be threated by some guys in a wooden ship firing cannonballs. However, al Qaeda remains a problem that was familiar in the 18th Century for which we already have well established legal structures. We should not invent some “4GW” hype just to create the misapprehension that we start with a blank slate.

  5. The 9/11 attack was a military attack on the Pentagon and a major economic/industrial targetconducted by a force that methods banned by international law. Terrorists blow up schools, pizza parlors, and Oklahoma City Federal Buildings. If al Qaeda had F-16s and used them to attack the Pentagon and World Trade Center, we would have trouble distinguishing their attacks from any the US has conducted in our recent wars.

    I really don’t know if the WTC would count as a legitimate target even assuming Al Qaeda had obeyed the rules of war. Its use was in no way military, and the equivalent economic disruption could probably have been caused by murdering the equivalent number of American businessmen in some other location, which would appear to be a violation of the laws of war.


  6. The second group of 61 targets expanded the first group and added storage facilities, railway assets, vital rail/highway bridges, and, most importantly, the mining of North Vietnam’s ports. This target set was pivotal. As was appreciated at the time, 85 percent of North Vietnam’s military imports came by sea, primarily through Haiphong–a prime candidate for mining. [18] Most of the remainder entered via the northeast and northwest rail lines to China. As Sir Robert Thompson, renowned British counterinsurgency expert, noted, “In all the insurgencies of the past twenty-five years, since the Second World War, none has been sustained, let alone successful, without substantial outside support.” [The JCS 94-Target List – U.S. air warfare strategy in Vietnam War

    Aerospace Power Journal, Spring, 2001 by Charles Tustin Kamps]

    Facilities involved in trade, particularly strategic imports, have been a primary target of US bombing strategy. Obviously there is a big difference between the economic impact of continued US bombing in Hanoi and the one time strike on the WTC. However, the legitimacy under international law of a bombing target depends on its type, not the strategic effectiveness of the attack. Clearly the Windows on the World restaurant was civilian, but there is collateral damage in any strike. If you accept the common ideological assumption that US policy is driven by economic motives, an obvious conclusion would be that the best way to deter the US would be to attack Wall Street or at least one of its more visible extensions.

    That said, I certainly don’t want to get involved in a deep discussion about how the laws of war have changed since WWII (Dresden, Tokyo, Hiroshima) and what is or isn’t regarded as a lawful bombing target according to dozens of different interpretations of international law. Somewhere between the modern European aversion to force in any form and Curtis LeMay’s famous “bomb them back to the stone age” it seems reasonable for a foreign military (not terrorist) prioritization of targets along the East Coast of the US to hold the WTC and Pentagon as relatively high priority.

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