The Bush administration’s response to the terrorist attacks of September 11 has prompted a deluge of legal argument. To its critics, the United States has jettisoned a half-century’s-worth of international law and human rights guarantees, above all through the indefinite detention without judicial oversight of those it deems "enemy combatants". The legal case for the administration’s actions has also been vigorously made – but mostly by legal scholars sympathetic to the government, rather than by government officials themselves. The administration’s elaboration of its own position has been largely confined to legal filings submitted to the various U.S. federal courts where cases related to the campaign against al-Qaeda are being heard.

The Crimes of War Project was recently given the chance to explore the government’s position in detail through an interview with a senior administration official – Charles Allen, the Deputy General Counsel for International Affairs at the Department of Defense. Allen gave a full account of the legal framework that, according to the Pentagon, governs the deployment of U.S. military forces in the campaign against al-Qaeda and the detention under military authority of suspected al-Qaeda and Taliban fighters.

In many people’s eyes, the challenge posed to the United States by al-Qaeda represents something of a hybrid between war and crime. The scale and scope of the assault of September 11 were clearly on the level of an act of war, but in traditional legal thinking, armed conflict has generally been seen as taking place only between states or (in the case of civil wars) between groups in control of part of a country’s territory. Terrorists, by contrast, have tended to be seen as criminals, to be pursued through law-enforcement means and subjected to trial if captured.

U.S. Actions and the Laws of War

At the heart of the administration’s presentation of its policies, however, is the assertion that the United States is engaged in a global war with al-Qaeda, and that the laws of war can be applied to this conflict, as to any other, in a relatively uncomplicated way. "I think that despite the fact that the terrorists present an unconventional foe," Charles Allen told me, "the fundamental principles of the law of armed conflict have proven themselves to be applicable to this conflict. And U.S. military actions in response to these threats to the United States and to many of our friends and allies have been consistent with the principles of the law of armed conflict."

In support of the argument that the United States is at war with al-Qaeda, Allen cited the widespread international recognition that the U.S. had a right to act in self-defence against the attacks of September 11: "The world community – including the United Nations, NATO, the Organization of American States, Australia, New Zealand and many others – have acknowledged the fact that the United States suffered an armed attack on September 11." (It’s worth noting however that it has not always been thought that an armed attack necessarily initiates a state of armed conflict; for instance both President Reagan in the case of Libya, and President Clinton with his strikes against Afghanistan and Sudan, launched military responses to terrorist attacks without claiming that the United States was at war.)

Allen argued, though, that the state of war was defined by a pattern of repeated attacks and continuing threat posed by terrorists against the United States – and therefore that the armed conflict might in fact have started before September 11. "I think you could even characterize the events of September 11 as acts in furtherance of an armed conflict started at an earlier date by al-Qaeda against the United States," he said. "I think it’s very difficult to pin down the precise date and time that the armed conflict began…I don’t know that there’s a clear answer to that question, but there’s no question that we were the victim of an armed attack by al-Qaeda on September 11, and the conflict started no later than that date."

This point may be significant if at some point the level of terrorist attacks mounted against the United States and its allies reverts to the level seen in the years before September 11: the first attack on the World Trade Center, the African embassy bombings, the attack on the USS Cole. If the administration were to claim (as it likely would) that an armed conflict was still ongoing, then it should logically also argue that this level of attack and threat constituted a state of war in the past. (In their recent book The Age of Sacred Terror, Daniel Benjamin and Steven Simon, who worked on counter-terrorism in the Clinton White House, write that after the embassy bombings of August 1998 the United States was involved in an "unknown war.")

Who is the Enemy in this Conflict?

One obvious way in which this conflict differs from traditional wars is the imprecise nature of the enemy. When asked whom the United States was at war with, Allen said, "The enemy includes al-Qaeda and other international terrorists around the world, and those who support such terrorists." He referred to President Bush’s statement to Congress on September 20, 2001 that the war would continue until "every terrorist group of global reach has been found, stopped and defeated," and explained that this phrase should be interpreted as meaning "not only terrorists who can strike within the United States, but who can threaten our forces abroad and our friends and allies." Clearly included in this category are organizations like Jemaah Islamiah in Indonesia, which has ties to al-Qaeda and is believed to have carried out the Bali bombing in October, and similar al-Qaeda affiliates around the world. But what about organizations like Hezbollah, which operates in more than one country, and targets Israel? Allen refused to be drawn on this question.

Allen also insisted that it was too early to give a concrete definition of when the war might be deemed to have ended: "I think that recent events – the Bali bombing, terrorist attacks in the Philippines, Kuwait and elsewhere – only underscore the fact that this conflict remains ongoing and will continue for the foreseeable future." I asked him whether in his view the United States would continue to be at war while there remained any terrorists in the world, not necessarily linked to al-Qaeda, who continued to threaten the U.S. or its allies – a situation that it is likely always to obtain. He replied, "Is it possible that at some point we will consider that we are not any longer subject to widespread terrorist attacks such as the ones that we have suffered in recent years, to the point where there may be more sporadic attacks and that therefore we would no longer be in an ongoing armed conflict? I think that’s a fair question. I think that the questions is at this point premature."

He added, however, "We’re not talking about an absolutely perfect world where we don’t think that it’s possible for any terrorist attack to occur in the future, but rather a world in which there is no reasonable prospect of the resumption of the kind of hostilities that we are now seeing." Although vague, this seems the most readily comprehensible account that I have heard of when the Bush administration might judge that its proclaimed war against terrorism has ended.

The Case for Guantanamo

In keeping with the argument that the campaign against terrorism can be treated straightforwardly as a war, Allen strongly rejected the suggestion that the captives at Guantanamo Bay and in the United States were being held in indefinite detention. "I think it’s maybe an understandable shorthand term when we don’t foresee the end of the conflict at a particular date," he said. But, arguing that the authority to detain enemy combatants during hostilities "is well settled under international law," Allen maintained that regime established for the detainees "is by no means an indefinite detention in the sense that one might attribute to the lawless countries that have no process attaching to the detention of persons in their control."

In this handout photo from the Department of Defense Taliban and al-Qaida detainees in orange jumpsuits sit in a holding area under the watchful eyes of military police at Camp X-Ray at Naval Base Guantanamo Bay, Cuba, during in-processing to the temporary detention facility on Jan. 11, 2002. (AP Photo/Shane T.McCoy, U.S. Navy)

Allen pointed out that the underlying basis for being able to detain enemy fighters in this conflict was exactly the same as in previous wars in which the United States has been engaged: that "simply returning detained enemy combatants would probably result in that person rejoining the battle against the United States." He added that this right of detention was not affected by any separate decision that might be made to prosecute some given individuals for specific crimes committed during the conflict, either in federal U.S. courts or, possibly, before military commissions.

I asked whether there wasn’t a special problem in identifying members of the enemy in this case, since they didn’t wear uniforms, and hadn’t been picked up on a conventional battlefield. Didn’t that mean there was a different kind of requirement to prove that detainees were in fact enemy combatants – perhaps through some sort of judicial hearing – so that we weren’t simply assuming their guilt? And what level of connection to al-Qaeda or another terrorist group was necessary for an individual to be formally classed as a combatant in this armed conflict?

Allen conceded that the absence of any clear, unambiguous way of identifying opposing combatants might well be "one of the elements that creates an issue in the public’s eye." But he insisted this was the terrorists’ own responsibility: "It is the lawless terrorists who do not distinguish themselves by uniforms or distinctive emblem, and who do not comply with the law of armed conflict, who bear responsibility." (Under the laws of war, combatants are required to distinguish themselves from the civilian population when they are engaged in an attack or a military operation preparatory to an attack, or to carry their weapons openly.) Allen referred to the oft-repeated comment by the Secretary of Defense, Donald Rumsfeld, that "we have absolutely no desire to detain anyone any longer than is absolutely necessary" to prevent them taking part in further attacks on U.S. targets; "I assure you we’re very careful about that," Allen said. "And that goes right to the outset of a detention. We have no desire to detain anybody that shouldn’t be detained – anybody, that is, who is not a threat to the United States." As an illustration, he mentioned the four detainees released from Guantanamo Bay in October, and said that the requirement for the continued detention of other captives was being reviewed "on a case-by-case basis."

Allen also sought to emphasize that, in determining who was a combatant, there was no need for them to be fighting on what would conventionally be recognized as a battlefield. “The authority to detain enemy combatants,” he argued, “applies not just to armed soldiers engaged in battlefield combat, but extends to all belligerents, including any individuals who act in concert with enemy forces and aim to further their cause. An individual cannot immunize himself from treatment as an enemy combatant by attempting to extend the battle beyond the traditional battlefield.”

As far as who counted as an enemy combatant, Allen said that the term applied to "those who are a part of that enterprise [al-Qaeda and other global terrorist organizations] and/or threaten the United States." When I asked if he could be any more precise about these categories, he added, "The term includes a member, agent or associate of al-Qaeda or the Taliban. The determination of who is an enemy combatant is dependent on the facts of each individual case."

Should There Be Judicial Oversight?

The issue of whether detainees should have any legal right to challenge their detention is currently before a number of different courts. On December 4, Judge Michael B. Mukasey of the United States District Court for the Southern District of New York ruled that Jose Padilla, a U.S. citizen detained as an enemy combatant within the United States, could consult with a lawyer and ask the court to consider whether his detention was lawful. A case seeking the right of habeas corpus for a group of detainees at Guantanamo Bay is before the Court of Appeals for the District of Columbia Circuit.

On this question, Allen argued that "U.S. law appropriately limits access to the courts by enemy combatants detained outside of the United States during hostilities to challenge their detention as enemy combatants." He said that this did not mean they were without rights, but "rather that the scope of those rights is to be determined by the Executive and the military, not by the courts. This reflects core constitutional principles, avoids the truly dangerous precedent of judicial second-guessing of quintessentially military decisions, and ensures that enemy litigiousness does not jeopardize the war effort or aid the enemy."

Allen further said that U.S. policy was consistent with the international laws of war: "The law of armed conflict makes no provision for judicial review of the detention of enemy combatants who are detained during hostilities solely to take them out of the fight. There is a recognition in the law of armed conflict that during hostilities, the military through its operations and intelligence-gathering has an unparalleled vantage point to learn about the enemy and make judgments as to whether those seized during a conflict are friend of foe."

The fact that the al-Qaeda detainees were not visually distinguishable from non-combatants, argued Allen, was irrelevant here. "It would be contrary to the principles of the law of armed conflict to accord unlawful combatants a right to challenge detention based solely on their status as enemy combatants, when lawful combatants lack the right to raise such challenges," he said. "To do so would reward those who fail to comply with the law of armed conflict."

Allen didn’t directly address the question of whether the administration sees a requirement to allow judicial oversight in the case of U.S. citizens detained as enemy combatants within the United States. But in a recent letter to the American Bar Association, the Defense Department’s General Counsel, William J. Haynes II, wrote that the government welcomed "meaningful judicial review" of its detention of U.S. citizens – as evidenced by the factual declarations it has provided to courts in the cases of Jose Padilla and Yaser Esam Hamdi, another U.S. citizen who was picked up in Afghanistan and is now held in a navy brig in Virginia. However, the government has contested the right of lawyers acting for Padilla and Hamdi to have access to their clients to discuss these declarations, contending that such access could jeopardize ongoing efforts to gather intelligence from the detainees, and could also allow them to pass concealed messages to enemies of the United States.

What International Law Applies to the Conflict?

One of the most controversial aspects of the detention regime has been the question of what legal framework applies to the prisoners in Guantanamo. The White House announced at the beginning of this year that al-Qaeda detainees did not qualify for the protection of the Geneva Conventions, since they did not belong to a state party; Taliban detainees were said to come under the Geneva Conventions, but not to meet the tests to qualify as prisoners of war. In our interview, Allen made it clear that the administration regards all detainees as protected by customary international law, a collection of norms that are followed by law-abiding states, and held to have legal status even when they are not applicable through a specific treaty.

"The regime of law that applies is the customary law of armed conflict," Allen said. In particular, he continued, the principles enshrined in the Geneva Conventions applied to Guantanamo, as to all aspects of the ongoing war: "We apply the existing law of armed conflict and treat the detainees – al-Qaeda and Taliban alike – humanely and in a manner consistent with the principles of the Geneva Conventions, which we believe are a part of the international law of armed conflict." In other words, although the Geneva Conventions are not technically applicable, the administration regards their provisions as now part of established customary law, and therefore recognizes them as binding. The same would apply to many provisions in the first Additional Protocol of 1977, to which the United States is not a party, but which is now thought in large part to be customary law.

One regulation that is particularly relevant here (as Professor Adam Roberts of Oxford University has pointed out) is Article 75 of Additional Protocol I, which sets out a list of fundamental guarantees for detainees who do not qualify for more favourable treatment (e.g. prisoner of war status). Among these guarantees are the right to be treated humanely, not to be subjected to murder, torture, beating, or humiliating and degrading treatment, and the right to be released “as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.”

According to their terms, the Geneva Conventions apply symmetrically – that is to say, they are either applicable to both sides in a conflict, or to neither. Therefore the White House statement that the Geneva Conventions do not extend to al-Qaeda is effectively a declaration that the entire military campaign against terrorism is not covered by the Geneva Conventions. However, Allen emphasized that the United States military does regard customary international law as binding: "With regard to the global war on terrorism, wherever it may reach, the law of armed conflict certainly does apply, not only concerning the treatment of detainees, but also in the sense of the principle of distinction, in the sense of targeting decisions, and in the sense of how those who are removed from the combat are treated."

Similarly, Allen stated firmly, if any US forces were to fall into the hands of a terrorist organization, "We would argue that at least that treatment accorded under the Geneva Conventions would be required of anybody who might capture our people."

Who Can Be Targeted?

U.S. policy on targeting was highlighted recently by the missile strike in Yemen against a car carrying Qaed Sinan al-Harithi – alleged to be a senior al-Qaeda operative – and five associates, which administration sources have pretty much acknowledged was carried out by the CIA. The attack prompted a number of legal experts and human rights organizations to ask whether it was appropriate to shoot to kill alleged terrorists; some suggested that U.S. forces were wrong to use lethal force, except perhaps in cases where it was clearly impossible to detain an individual peaceably. But Charles Allen made it clear that the U.S. military saw the same rules governing this conflict as traditional, "battlefield" wars: "When we have a lawful military target that the commander determines needs to be taken out, there is by no means a requirement under the law of armed conflict that we must send a warning to these people, and say, ‘You may surrender rather than be targeted.’"

Allen added that the United States adhered to the law that forbids targeting people who have become hors de combat, or removed from hostilities. "A combatant is hors de combat if he is in the power of an adverse power, he clearly expresses an intention to surrender, or he has been rendered unconscious or otherwise incapacitated and therefore unable to defend himself, provided that such a combatant abstains from any hostile act and does not attempt to escape." According to these rules of engagement, an al-Qaeda member on the streets of a European city like Hamburg could lawfully be targeted. This is a distinctly unsettling notion, even if common sense suggests that U.S. commanders would avoid killing a believed terrorist if there was a reasonable chance that he could be detained, in order to interrogate him about other al-Qaeda agents and any future planned attacks.

The Outstanding Questions

The charge sometimes made against the United States in its campaign against al-Qaeda is that it has dropped any pretence of legal justification, and is operating outside the law altogether. However it would be more accurate to phrase the most troubling questions raised by the Pentagon’s account of its military approach to terrorism somewhat differently. Essentially, they revolve around whether the rigid structure of the laws of armed conflict – with their clear-cut distinctions between combatants and civilians, war and peace, legitimate and illegitimate targets – can have a meaningful application to the murky world of counter-terrorism.

In the past, it has mostly been terrorists themselves who have sought to portray their campaigns as wars – and the governments trying to contain their violence who have most strenuously resisted. As the British military historian Sir Michael Howard said in a speech last year, "To declare war on terrorists…is at once to accord them a status and a dignity that they seek and do not deserve." After all, if parties to a war observe the laws of armed conflict, they are immune from prosecution for attacks on military targets. If a group of al-Qaeda fighters dressed in combat fatigues, or carrying their weapons openly, attacked a U.S. military target, would we be happy to acknowledge it as a legitimate act of war?

In seeking to apply the laws of war straightforwardly to an anti-terror campaign, the Bush administration may risk creating a situation where any kind of international consensus about the application of the law is unachievable. The definition of what counts as a war, who qualifies as an enemy combatant, when conflict begins or ends – all these questions may be so subjective in this "new kind of conflict" that the answers will inevitably be tainted with a strong air of political expediency. The administration has an internally consistent legal case to make – the question is whether in acting on it, it will undermine the precision that is at the heart of the legitimacy and impact the laws of war have been able to achieve up to now.

Excerpts from interview with Charles Allen, Deputy General Counsel for International Affairs, U.S. Department of Defense
By Anthony Dworkin

Related chapters from Crimes of War: What the Public Should Know:

Belligerent Status
Civilian Immunity
Combatant Status
Customary Law
Gray Areas in International Humanitarian Law
Prisoners of War, Non-Repatriation of
Soldiers, Rights of
Terrorism

Related Links

In Guantanamo
By Joseph Lelyveld
The New York Review of Books, November 7, 2002

DefenseLINK: Official Website of the U.S. Department of Defense

War on Terrorism: Civil and Criminal Cases
Findlaw

Report and Exchange of Letters About Combatants
American Bar Association

Geneva Conventions
International Committee of the Red Cross

New Policies for a New World
Guardian/RUSI Conference, October 30, 2001
(Including audio of Sir Michael Howard's speech)

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