The Law of War in the War on Terror

Kenneth Roth

From Foreign Affairs, January/February 2004

Summary:  The Bush administration has literalized its "war" on terrorism, dissolving the legal boundaries between what a government can do in peacetime and what's allowed in war. This move may have made it easier for Washington to detain or kill suspects, but it has also threatened basic due process rights, thereby endangering us all.

Kenneth Roth is Executive Director of Human Rights Watch.

HARD CASES

Given that so much confusion exists about whether to apply wartime or law-enforcement rules to a given situation, a better approach would be to make the decision based on its public policy implications. Unfortunately, the Bush administration seems to have ignored such concerns. Consider, for example, the cases of Jose Padilla and Ali Saleh Kahlah al-Marri. Federal officials arrested Padilla, a U.S. citizen, in May 2002 when he arrived from Pakistan at Chicago's O'Hare Airport, allegedly to scout out targets for a radiological ("dirty") bomb. As for al-Marri, a student from Qatar, he was arrested in December 2001 at his home in Peoria, Illinois, for allegedly being a "sleeper" agent: an inactive terrorist who, once activated, would help others launch attacks. President Bush, invoking war rules, has declared both men to be "enemy combatants," allowing the U.S. government to hold them without charge or trial until the end of the war against terrorism -- whenever that is.

But should Padilla and al-Marri, even if they have actually done what the government claims, really be considered warriors? Aren't they more like ordinary criminals? A simple thought experiment shows how dangerous are the implications of treating them as combatants. The Bush administration has asserted that the two men planned to wage war against the United States and therefore can be considered de facto soldiers. But if that is the case, then under war rules, the two men could have been shot on sight, regardless of whether they posed any immediate danger to the United States (although they might have been spared under what is known as the doctrine of "military necessity," which holds that lethal force should not be used if an enemy combatant can be neutralized through lesser means). Under the administration's logic, then, Padilla could have been gunned down as he stepped off his plane at O'Hare, and al-Marri as he left his home in Peoria. That, after all, is what it means to be a combatant in time of war.

But the Bush administration has not claimed that either suspect was anywhere near to carrying out his alleged terrorist plan. Neither man, therefore, posed the kind of imminent threat that would justify the use of lethal force under law-enforcement rules. Given this fact, it would have been deeply disturbing if they were shot as enemy soldiers. Of course, the White House has not proposed killing them; instead, it plans to detain the two men indefinitely. But if Padilla and al-Marri should not be considered enemy combatants for the purpose of killing them, they should not be considered enemy combatants for the purpose of detaining them, either.

A similar classification problem, although with a possibly different result, arose in the case of Qaed Salim Sinan al-Harethi. Al-Harethi, who Washington alleges was a senior al Qaeda official, was killed by a drone-fired missile in November 2002 while driving in a remote tribal area of Yemen. Five of his companions, including a U.S. citizen, also died in the attack, which was carried out by the CIA. The Bush administration apparently considered al-Harethi to be an enemy combatant for his alleged involvement in the October 2000 U.S.S. Cole bombing. In this instance, the case for applying war rules was stronger than with Padilla or al-Marri (although the Bush administration never bothered to spell it out). Al-Harethi's mere participation in the 2000 attack on the Cole would not have made him a combatant in 2002, since he could have subsequently withdrawn from al Qaeda; war rules permit attacking only current combatants, not past ones. And if al-Harethi were a civilian, he could not have legally been attacked unless he was actively engaged in hostilities at the time. But the administration alleged that al-Harethi was a "top bin Laden operative in Yemen," implying that he was in the process of preparing future attacks. If true, this would have made the use of war rules against him more appropriate. And unlike in the cases of Padilla and al-Marri, arresting al-Harethi may not have been an option. The Yemeni government has little control over the tribal area where he was killed; indeed, 18 Yemeni soldiers had reportedly died in an earlier attempt to arrest him.

Although there may have been a reasonable case for applying war rules to al-Harethi, the Bush administration has applied these rules with far less justification in other episodes outside the United States. For example, in October 2001, Washington sought the surrender of six Algerian men in Bosnia. At first, the U.S. government followed law-enforcement rules and secured the men's arrest. But then, after a three-month investigation, Bosnia's Supreme Court ordered the suspects released for lack of evidence. Instead of providing additional evidence, however, Washington simply switched to war rules. It pressured the Bosnian government to hand the men over anyway and whisked them out of the country -- not to trial, but to indefinite detention at the U.S. naval base at Guantánamo Bay.

The administration followed a similar pattern in June 2003, when five al Qaeda suspects were detained in Malawi. Malawi's high court ordered local authorities to follow the law and either charge or release the five men, all of whom were foreigners. Ignoring local law, the Bush administration then insisted that the men be handed over to U.S. security forces instead. The five were spirited out of the country to an undisclosed location -- not for trial, but for interrogation. The move sparked riots in Malawi. The men were released a month later in Sudan, after questioning by Americans failed to turn up any incriminating evidence.

A BAD EXAMPLE

These cases are not anomalies. In the last two and a half years, the U.S. government has taken custody of a series of al Qaeda suspects in countries such as Indonesia, Pakistan, and Thailand. In many of these cases, the suspects were not captured on a traditional battlefield. Yet instead of allowing the men to be charged with a crime under local law-enforcement rules, Washington had them treated as combatants and delivered to a U.S. detention facility.