This is the first in a weeklong series on the law and war on terrorism.
Of all the measures taken since September 11, the detention ofcapturedal Qaeda and Taliban members, including a handful of American citizens, has proven to be the most controversial. To some extent, this is not surprising. These men are held (mostly at Guantanamo Bay, Cuba) without trial, without access to lawyers and with no set date of release.
In ordinary circumstances, the policy would violate numerous constitutional rights, including the rights to due process of law, to a speedy and public trial and to counsel. The circumstances, of course, are not normal. The detainees are not criminal suspects, but enemy combatants captured while prosecuting a war against the United States. That makes their detention both necessary and legal. This series of essays will discuss both points, as well as the protections for the individual that do continue in wartime, and additional measures that, while not legally required, might make sense.
The most important legal question, of course, is whether the United States is actually “at war.” It can be readily conceded that, if the United States is not engaged in an “armed conflict,” then the administration cannot do what it has done, either as a matter of international or domestic law. Indeed, much of the opposition to the detentions is based on an implicit (or explicit) denial that the United States is engaged in anything other than a new and challenging criminal law enforcement effort, more like “the war on drugs,” than Vietnam, Korea, or World War I and World War II. Here, it is sometimes noted that: (1) the Constitution gives Congress the sole power to “declare war,” and it hasn’t; and (2) al Qaeda is not, in any case, a state with which the United States can be “at war.” Neither point, however, undercuts the administration’s position that the September 11 attacks were acts of war, and that the United States is now engaged in a legally cognizable armed conflict, to which the laws of war apply.
First, as early as 1801, the Supreme Court made clear that the United States can, without a declaration of war, invoke the laws of armed conflict. As John Marshall wrote in a case arising out of the 1798-1800 undeclared naval war with France: ” … congress may authorize general hostilities, in which case the general laws of war apply … or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed.” Since the power to detain captured enemy combatants is so central in war, it arises whenever the United States engages in an armed conflict, with or without a formal declaration.
Second, although “war” generally involves nation-states, there is no rule or doctrine prohibiting application of the laws of war to hostilities between a state and non-state actor. Indeed, the modern laws of war began to develop at a time when private companies of condottiere often participated in combat, both on behalf of and against sovereign states. Moreover, since World War II, most wars have involved at least one non-state party — usually in the form of an insurgency movement. Because insurgencies generally are limited to a single state, a certain level of intensity (approaching civil war) must be reached before an “armed conflict” is said to exist. When an attack comes from abroad, however, the laws of war apply immediately.
Al Qaeda, of course, is not a home-grown insurgency, but a transnational organization with global ambitions. Its tactics are illegal, but its goals are political. Indeed, they are geopolitical — to drive American influence from the Islamic world, to establish a new caliphate there and to renew the medieval war for dominance between Islam and the West. On September 11, al Qaeda did what few modern states can do — it projected power.
At the same time, treating September 11 as a law enforcement problem, where “suspects” must be indicted, arrested (without excessive force) and processed through the civilian justice system, instead of war, where enemies can be attacked without notice and captives held until victory, would simply have courted further disaster. Such a strategy is particularly ineffective when fighting an illusive and ruthless foe that ignores the laws of war and attacks civilians as its preferred strategy.
Finally, to have any hope of success over the long haul, a law enforcement approach would require the American justice system’s transformation. The police are neither trained nor equipped to meet the type of threat posed by al Qaeda. They are organized to investigate and punish crime, not to prevent it. Moreover, it has long been illegal in the United States (under the “Posse Comitatus Act”) to use the Armed Forces — specifically the Army and the Air Force — in law enforcement.
Consequently, to meet the threat posed by al Qaeda and its allies, the police would have to become true paramilitary formations, or the armed forces would have to be granted a central role in “law enforcement.” Either result would be fundamentally inconsistent with basic American traditions, and human rights would suffer far more than in any war against terror.
David B. Rivkin Jr. and Lee A. Casey are partners in the Washington office of Baker & Hostetler LLP and served in the Reagan and Bush 41administrations.