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.

There is something troubling about such a policy. Put simply, using war rules when law-enforcement rules could reasonably be followed is dangerous. Errors, common enough in ordinary criminal investigations, are all the more likely when a government relies on the kind of murky intelligence that drives many terrorist investigations. If law-enforcement rules are used, a mistaken arrest can be rectified at trial. But if war rules apply, the government is never obliged to prove a suspect's guilt. Instead, a supposed terrorist can be held for however long it takes to win the "war" against terrorism. And the consequences of error are even graver if the supposed combatant is killed, as was al-Harethi. Such mistakes are an inevitable hazard of the battlefield, where quick life-and-death decisions must be made. But when there is no such urgency, prudence and humanity dictate applying law-enforcement standards.

Washington must also remember that its conduct sets an example for governments around the world. After all, many other states would be all too eager to find an excuse to eliminate their enemies through war rules. Israel, to name one, has used this rationale to justify its assassination of terrorist suspects in Gaza and the West Bank. It is not hard to imagine Russia doing the same to Chechen leaders in Europe, Turkey using a similar pretext against Kurds in Iraq, China against Uighurs in Central Asia, or Egypt against Islamists at home.

Moreover, the Bush administration should recognize that international human rights law is not indifferent to the needs of a government facing a security crisis. Criminal trials risk disclosure of sensitive information, as the administration has discovered in prosecuting Zacarias Moussaoui. But under a concept known as "derogation," governments are permitted to suspend certain rights temporarily when they can show that it is necessary to meet a "public emergency threatening the life of the nation." The International Covenant on Civil and Political Rights, which the United States has ratified, requires governments seeking derogation to file a declaration justifying the move with the un secretary-general. Among the many governments to have done so are Algeria, Argentina, Chile, Colombia, Peru, Poland, Russia, Sri Lanka, and the United Kingdom. Yet the United States, determined to avoid the formal scrutiny involved, has not bothered.

The Justice Department has defended the administration's use of war rules by citing a U.S. Supreme Court decision from World War II, Ex Parte Quirin. In that case, the Court ruled that German army saboteurs who landed in the United States could be tried as enemy combatants before military commissions. The Court distinguished its ruling from an earlier Civil War-era case, Ex Parte Milligan, which held that a civilian resident of Indiana could not be tried in military court because local civil courts remained open and operational. Noting that the German saboteurs had entered the United States wearing at least parts of their uniforms, the Court in Quirin held that the Milligan protections applied only to people who are not members of an enemy's armed forces.

There are several reasons, however, why Quirin does not justify the Bush administration's broad use of war rules. First, the saboteurs in Quirin were agents of a government -- Germany's -- with which the United States was obviously at war. Whether the United States is actually at "war" with al Qaeda, however, remains uncertain under the law. Second, although the Court in Quirin defined a combatant as anyone operating with hostile intent behind military lines, the case has arguably been superseded by the 1949 Geneva Conventions (ratified by the United States), which, as noted above, rule that people are combatants only if they either are members of an enemy's armed force or are taking active part in hostilities. Quirin thus does not help determine whether, under current law, people such as Padilla and al-Marri should be considered civilians (who, under Milligan, must be brought before civil courts) or combatants (who can face military treatment). Moreover, Quirin only establishes who can be tried before a military tribunal. The Bush administration, however, has asserted that it has the right to hold Padilla, al-Marri, and other detained "combatants" without a trial of any kind -- in effect, precluding serious independent assessment of the grounds for potentially lifelong detention. Finally, whereas the government in Quirin was operating under a specific grant of authority from Congress, the Bush administration has acted on its own in taking the difficult decision to treat Padilla and al-Marri as combatants, without allowing the popular input that a legislative debate would provide.

STAY SAFE

The United States should not lightly suspend due process rights, as the Bush administration has done with its "enemy combatants" -- particularly when a mistake could result in death or lengthy detention without charge or trial. Law-enforcement rules should presumptively apply to all suspects in the "war" on terror, and the burden should fall on those who want to invoke war rules to demonstrate that they are necessary and appropriate.

The best way to determine if war rules should apply would be through a three-part test. To invoke war rules, Washington should have to prove, first, that an organized group is directing repeated acts of violence against the United States, its citizens, or its interests with sufficient intensity that it can be fairly recognized as an armed conflict; second, that the suspect is an active member of an opposing armed force or is an active participant in the violence; and, third, that law enforcement means are unavailable.

Within the United States, the third requirement would be nearly impossible to satisfy -- as it should be. Given the ambiguities of terrorism, we should be guided more by Milligan's affirmation of the rule of law than by Quirin's exception to it. Outside the United States, Washington should never resort to war rules away from a traditional battlefield if local authorities can and are willing to arrest and deliver a suspect to an independent tribunal -- regardless of how the tribunal then rules. War rules should be used in such cases only when no law-enforcement system exists (and the other conditions of war are present), not when the rule of law happens to produce inconvenient results. Even if military forces are used to make an arrest in such cases, law-enforcement rules can still apply; only when attempting an arrest is too dangerous should war rules be countenanced.