No, the Attack on the USS Cole Did Not Take Place in Armed Conflict

I argued more than three years ago that the US decision to prosecute Abd al-Rahim Abdul al-Nashiri in a military commission was illegitimate, because the attack on the USS Cole did not take place during an armed conflict. (I also pointed out that al-Nashiri was systematically tortured, including through the use of mock executions and waterboarding.) Peter Margulies takes a whack at the contrary position today at Lawfare, and the results aren’t pretty. Here, for example, is what he says about the Tadic test:

Under international law, the existence of a noninternational armed conflict depends on the intensity and duration of violence and the existence of an organized armed group (OAG) responsible for the violence. The OAG criterion is readily met: “core” Al Qaeda ordered the Cole attack and used it as a basis for recruiting more terrorists. The geographic distance between Yemen and Afghanistan is irrelevant given the centrality of Al Qaeda’s planning, which placed Osama bin Laden and Al-Nashiri in the same OAG.

The duration and hostility factors also break against Al-Nashiri. In the MCA, Congress gave military commissions jurisdiction over acts committed before September 11, recognizing that Al Qaeda’s military efforts against the US predated that event. The conduct of the US prior to the Cole bombing buttresses Congress’s finding. In August, 1998, President Clinton responded to the Al Qaeda-planned East African Embassy bombings, which killed over 250 persons, with a wave of Cruise missile strikes in Afghanistan and Sudan. That sounds pretty intense to me, although the intensity seems lost on Al-Nashiri’s advocates.

Margulies gets the NIAC test right, and he is even likely right that al-Nashiri was part of “core” al-Qaeda at the time of the attack on the USS Cole. But his discussion of the duration and intensity factors is deeply flawed. To begin with, as I have pointed out before (numerous times), the existence of a NIAC is a purely objective question, one determined by the facts on the ground, irrespective of the subjective perception of the parties to the hostilities. The MCA’s jurisdictional provisions are thus irrelevant to whether the US was involved in a NIAC with core al-Qaeda when the USS Cole was attacked.

More importantly, it is clear that no such NIAC existed at the time of the attack. The 1998 attacks that Margulies mentions — al-Qaeda’s bombings of the US embassies in Tanzania and Kenya, and the cruise-missile attacks launched by the US in Afghanistan and Sudan as part of the hyperbolically-named Operation Infinite Reach — do not constitute the kind of “protracted armed violence” that Tadic requires, no matter how intense they may appear to Margulies. More importantly, though, those attacks took place more than two years before the attack on the USS Cole, with no significant hostilities between al-Qaeda and the US in the interim. It is thus even less plausible to argue that the 1998 attacks created a NIAC between the US and core al-Qaeda that persisted until the attack on the USS Cole in 2000. That’s simply not the way NIAC works: once hostilities are no longer adequately protracted, NIAC ends until adequately intense armed violence begins again — at which time a new NIAC is created.

Margulies, it’s worth noting, seems to recognize that his international-law argument is flawed. Here is what he argues later in his post:

Al-Nashiri’s argument relies on a stylized view of the nature of armed conflict that bears little similarity to actual wars. Wars frequently feature peaks and valleys. Consider the “Phony War” between Germany and the Allies in 1939-40 after Germany’s conquest of Poland. In current events, consider the uneasy impasse that prevailed in the Ukraine between Russia’s March move into Crimea and Friday’s fighting between Ukraine’s government and pro-Russian militias – not peace, to be sure, but a pause with little actual violence. Israel’s continuing armed conflict with Hamas has the same episodic character. Sporadic violence may not fit the stereotype of war, but it has always been part of war’s reality.

Margulies’ first two examples are irrelevant to whether a NIAC can survive “peaks and valleys” in fighting, because they are classic international armed conflicts: unlike NIAC, which requires protracted armed violence, an IAC is triggered and maintained by any use of interstate force. (It is also triggered, of course, by a formal declaration of war — as was the case with the Phoney War.) And his third example mixes apples and oranges, because the episodic conflict between Israel and Hamas has taken place largely, if not completely, in the context of a belligerent occupation, making it an IAC, as well. (To be sure, some consider the events in Gaza between December 2008 and January 2009 to have created a separate NIAC — but that position actually hurts Margulies’ cause, because it foregrounds that NIAC exists only when hostilities between a state and an organized armed group are genuinely protracted.)

Margulies may be right that “sporadic violence… has always been part of war’s reality.” Unfortunately for him, such violence is anathema to the law’s reality regarding non-international armed conflict. There was no protracted armed violence between the US and core al-Qaeda in 2000. So there was no NIAC between the US and core al-Qaeda when al-Nashiri allegedly masterminded the attack on the USS Cole.