University of Pennsylvania Law Review
December, 2004
153 U. Pa. L. Rev. 675
WAR EVERYWHERE: RIGHTS, NATIONAL SECURITY LAW, AND THE LAW OF ARMED CONFLICT IN THE AGE OF TERROR
Rosa Ehrenreich Brooks
Introduction: An Outmoded Legal Paradigm
Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more,
Law has gone away. n1
Both international and domestic law take as a basic premise the notion that it is possible, important, and usually fairly straightforward to distinguish between war and peace, emergencies and normality, the foreign and the domestic, the external and the internal. From an international law perspective, the law of armed conflict n2 is triggered only when an armed conflict actually exists; n3 the rest of the time, other bodies of law are applicable. n4 Domestically, U.S. courts have developed a constitutional and statutory jurisprudence that attempts to distinguish between "national security" issues and "domestic" questions, with the courts subjecting government actions to far less scrutiny when those actions are taken in the name of national security. n5
This Article asserts that these binary distinctions are no longer tenable. In almost every sphere, globalization has complicated once-straightforward legal categories, but this is nowhere more apparent and more troubling than in the realms of armed conflict and national security law. Although the boundaries between "war" and "nonwar," and between "national security" and "domestic issues," have been eroding for some time, September 11 and its aftermath have highlighted the increasing incoherence and irrelevance of these traditional legal categories. Shifts in the nature of security threats have broken down once clear distinctions between armed conflict and "internal disturbances" that do not rise to the level of armed conflict; between states and nonstate actors; between combatants and noncombatants; between spatial zones in which conflict is occurring and zones in which conflict is not occurring; between temporal moments in which there is no conflict and temporal moments in which there is conflict; and between matters that clearly affect the security of the nation and matters that clearly do not.
The breakdown of these once reasonably straightforward distinctions gave the U.S. government an opening to argue, among other things, that noncitizen detainees held at Guantanamo Bay, Cuba may be detained indefinitely without charge; n6 that U.S. citizens (including those detained inside the U.S.) may be designated "unlawful combatants" by executive fiat and held indefinitely without charge or access to attorneys; n7 and that the U.S. may kill any suspected terrorist in any state in the world at any time. n8 U.S. courts are currently struggling to determine how to assess many of these claims, n9 all of which are based on loose, but not implausible, readings of the law of armed conflict. n10
In response to these arguments, many in the human rights, civil rights, and international law communities have struggled to insist on the continuing viability of the law of armed conflict's traditional boundaries, n11 since the erosion of these boundaries has had (and will almost certainly continue to have) a disastrous effect on basic rights and vulnerable populations. n12 Many in these communities have insisted, for instance, that the law of armed conflict should be interpreted in a strict and formalistic manner when it comes to evaluating U.S. actions in the "war on terror," n13 and some human rights groups (including Amnesty International) have asserted that since al Qaeda is neither a state nor a domestic insurgent group, the law of armed conflict does not apply at all to the U.S. struggle against terrorism, n14 which should be governed instead by the principles of domestic and international criminal law.
It is somewhat ironic for any in the human rights law community to insist on a rigid and traditional reading of the law of armed conflict when it comes to the war on terror, since in many other contexts the human rights community has appropriately been at the forefront of calls for progressive and flexible interpretations of international law. n15 In the longer run, shifting from one interpretive methodology to another based on the likely results of different methodologies is both unprincipled and likely to be self-defeating, as it is difficult to simultaneously argue, for instance, that the law of armed conflict should be construed narrowly when the goal is reining in U.S. government actions, but flexibly when the goal is holding nonstate actors accountable for crimes against humanity or ending impunity for gender-based crimes committed during armed conflicts. n16
The effort to insist on the viability of the customary distinctions drawn by the laws of armed conflict is also, increasingly, a rearguard action. The erosion of boundaries is an inescapable social fact, and this Article asserts that it needs to be candidly acknowledged and addressed, rather than ignored or denied.
To say that the erosion of traditional legal boundaries is an inescapable fact is not to minimize the degree to which it is nonetheless genuinely cause for alarm, however; rights advocates are justifiably concerned about the consequences of this boundary erosion. The existence of reasonably clear boundaries between conflict and nonconflict, combatants and noncombatants, and "lawful" and "unlawful" belligerents is what allows us to determine which legal rules apply in different situations, and, even more critically, allows us to identify people and rights meriting protection. As traditional categories lose their logical underpinnings, we are entering a new era: the era of War Everywhere. n17 It is an era in which the legal rules that were designed to protect basic rights and vulnerable groups have lost much of their analytical force, and thus, too often, their practical force.
The erosion of clear boundaries in some areas of the law also leads to a slippery slope, allowing the disingenuous to assert that there is also blurriness even in areas of the law that remain both relevant and clear. Thus, lawyers for the Bush administration went from the legitimate conclusion that the Geneva Conventions cannot easily be applied to many modern conflicts, to the disingenuous and flawed conclusion that there were therefore no legal constraints at all on U.S. interrogation practices. n18 In fact, regardless of whether or not the Geneva Conventions apply to a given conflict, and regardless of whether or not a particular detainee is entitled to the protections of the Geneva Conventions, international law and U.S. treaty commitments prohibit the use of torture and other forms of cruel, inhuman, or degrading treatment of detainees - and there can be little doubt that many of the interrogation practices authorized by the Pentagon constitute torture or cruel, inhuman, and degrading treatment. n19 In practice, then, the breakdown of clear boundaries in some areas of the law also dangerously undermines the efficacy of other legal rules. n20
In the long run, the old categories and rules need to be replaced by a radically different system that better reflects the changed nature of twenty-first century conflict and threat. What such a radically different system would look like is difficult to say, and the world community is unlikely to develop a consensus around such a new system anytime soon. This Article suggests, nonetheless, that international human rights law provides some benchmarks for evaluating U.S. government actions in the war on terror, and ultimately for developing a new analytical framework that can successfully balance the need to respond to new kinds of security threats with the equally important need to preserve and protect basic human rights.
Unlike domestic U.S. law and the law of armed conflict, international human rights law applies to all people at all times, regardless of citizenship, location, or status. n21 Although human rights law permits limited derogation in times of emergency, it also outlines core rights that cannot be eliminated regardless of the nature of the threat or the existence or nonexistence of an armed conflict. n22 Applying the standards of international human rights law in both domestic and international contexts would not solve all the problems created by the increasing irrelevance of other legal frameworks, but it would provide at least a basic floor, a minimum set of standards by which international and domestic governmental actions could be evaluated. U.S. courts are free to make use of applicable international human rights law, though they rarely do so; this Article urges U.S. courts to make greater recourse to international human rights law in evaluating legal challenges to post-September 11 government action. International human rights law and norms can also be used as a political benchmark for evaluating uses of force by the U.S. in the international context. Human rights norms also can, and should, be the starting point for developing a new legal framework in which to view state responses to new and emerging security threats.
A great deal has already been written about ambiguities and gaps in the law of armed conflict, n23 about how the law of armed conflict should (or should not) be applied to the events of September 11 and to terrorism in general, n24 and about the threats to human rights and civil liberties posed by the "war on terror." n25 But as in the parable of the three blind men and the elephant, n26 each commentator focuses on only one or two pieces of the picture, and the larger reality goes unappreciated. This Article seeks to focus on that larger reality (the forest, rather than the trees, to shift metaphors), suggesting we entirely lack an adequate domestic or international legal paradigm for thinking about the changes brought about by the rise of global terrorism.
This is hard for many to accept, since it implies that at the moment there are few domestic or international legal constraints on the war on terror. n27 Nonetheless, this Article asserts that acknowledging this is better, in the long run, than denying it. Rather than insisting on the continued validity of obsolete legal paradigms, we should take stock of the tools international human rights law offers for evaluating and critiquing the war on terror. At the same time, we need to begin to imagine the basic contours of a new domestic and international legal paradigm, one that balances the need to respond to new security threats with the need to protect core rights. This Article seeks to begin that process.
Part I of this Article is devoted to background, briefly describing, first, the evolution and content of the law of armed conflict and the international system it presupposes. Second, it explores the parallel domestic legal assumptions embodied in what we can loosely refer to as national security law. Part II chronicles some of the recent changes that are rendering these background assumptions and categories increasingly less coherent and relevant.
Part III examines the concrete ways in which the boundaries between traditional categories have eroded, looking at various definitional boundaries (such as those between "international" and "internal" armed conflict, and between "armed conflict" and "crime"), spatial/geographical boundaries, temporal boundaries, boundaries between categories of persons, and the boundaries between "national security" matters and "purely domestic" matters as understood by U.S. courts. n28
Part IV discusses the implications of the erosion of these boundaries, and concludes that rights advocates are correct to suspect that there is much to fear. Part V suggests that international human rights law may offer a partial and interim solution to the problem. Part VI acknowledges that a more thoroughgoing reconceptualization of the law of armed conflict is necessary in the longer run, and offers some preliminary suggestions for how such a reconceptualization might proceed.
I. Background
A. The Law of Armed Conflict
In peace, there's nothing so becomes a man,
As modest stillness, and humility:
But when the blast of war blows in our ears,
Then imitate the action of the tiger:
Stiffen the sinews, summon up the blood,
Disguise fair nature with hard-favored rage;
Then lend the eye a terrible aspect. n29
Efforts to control and limit warfare are almost as old as warfare itself, n30 but the modern law of armed conflict has its roots in the nineteenth century, when efforts to formally codify the rules of war began in the West. n31 In 1856, the Conference of Paris sought to come up with rules governing naval warfare. n32 In 1863, during the American Civil War, the United States Army issued General Order No. 100, Instructions for the Government of Armies of the United States in the Field. n33 Based on the recommendations of Columbia University professor Francis Lieber, and better known as the Lieber Code, General Order No. 100 laid out basic rules concerning permissible and impermissible methods of warfare, including rules relating to the treatment of civilians. n34 Also in 1863, Swiss citizen Henry Dunant founded the International Committee of the Red Cross (ICRC) "for the purpose of having care given to the wounded in wartime by zealous, devoted and thoroughly qualified volunteers." n35 Dunant also urged the leaders of European states to develop "some international principle, sanctioned by a convention and inviolate in character, which, once agreed upon and ratified, might constitute the basis for societies for the relief of the wounded in the different European countries." n36 In 1864, Dunant's efforts were rewarded; ten European states ratified the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (First Geneva Convention). n37
Efforts to constrain armed conflict continued; in 1899 and 1907, international peace conferences at The Hague led to the drafting and later entry into force of the various Hague Conventions on the laws and customs of war, n38 and in the interwar period, the Kellogg-Briand Pact between the United States and fourteen other nations made it illegal to have "recourse to war for the solution of international controversies." n39 In the wake of World War II, the 1945 U.N. Charter cemented the prohibition on waging aggressive war. The Charter laid out the basic conditions in which states may resort to the use of force, declaring that "all Members shall settle their international disputes by peaceful means ... . [and] refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state." n40 The four Geneva Conventions of 1949 further rationalized and codified customary and treaty-based norms relating to armed conflict, outlining the rules applicable to civilians, prisoners of war, and wounded and sick members of armed forces. n41
This process of seeking to constrain armed conflict has continued into the present time. In 1974, the U.N. General Assembly adopted a definition of state "aggression" for the first time. n42 In 1977, an international conference led to two Additional Protocols to the Geneva Conventions, both of which have been widely ratified. n43 More recently, the jurisprudence of the ad hoc international criminal tribunals for Yugoslavia and Rwanda have breathed new life into our understanding of war crimes and crimes against humanity, n44 as has the process of negotiating the statute governing the new International Criminal Court. n45 As recently as 2002, a new Optional Protocol to the Convention on the Rights of the Child entered into force, enhancing international legal mechanisms designed to protect children during armed conflicts. n46
These various treaties have been widely ratified, n47 and to a significant extent, core provisions of these treaties have been accepted as customary international law n48 that binds even those states that are not parties to the treaties, and that also binds nonstate actors (such as insurgent groups), which lack the legal capacity to ratify treaties. n49 Thus, for example, Common Article 3 of the Geneva Conventions, which outlines the minimum protections that must be afforded to noncombatants, is now generally accepted as universally binding on all parties to all armed conflicts. n50
The law of armed conflict governs many different aspects of armed conflicts, but it mainly consists of those rules traditionally referred to as jus in bello, "law in war," which relate to the manner in which armed conflict may proceed. Jus in bello consists of rules relating to proper and improper kinds of weapons and military tactics, rules relating to the treatment of prisoners of war and civilians, and so on. n51 (Jus in bello is contrasted with jus ad bellum, the laws relating to when it is proper to resort to armed conflict, a question now governed mainly by the U.N. Charter. Some commentators consider applicable U.N. Charter provisions part of the law of armed conflict, broadly conceived, while others regard this as outside of the laws of armed conflict.) n52
It is beyond the scope of this Article to summarize the law of armed conflict, but it is important to note a few key principles and distinctions, some of which are probably familiar even to laypersons, others of which are likely unfamiliar to nonspecialists. To begin with, the law of armed conflict accepts that certain behaviors that are illegal and abhorrent in time of peace are both permissible and desirable in time of war. n53 Most obviously, the purposeful killing of other humans is considered morally abhorrent in peacetime, but in time of war soldiers are not only permitted, but required, to try to incapacitate members of enemy forces, if necessary by killing them.
The principle of "combatant immunity" flows from the disconnect between appropriate peacetime behavior and appropriate wartime behavior. In peacetime, the willful killing of another human would normally lead to prosecution, trial, and possibly conviction for the crime of murder. During and after wars, however, soldiers cannot be prosecuted for killing enemy combatants; their deadly violence is legally immunized. n54 The same goes for numerous other forms of violence: the deliberate destruction or appropriation of public or private property is normally punishable in time of peace, but generally permissible in time of war. n55 As a result, the law of armed conflict provides that combatants taken prisoner by opposing forces may be detained until the cessation of hostilities, but they may not be subject to punishment by opposing forces for their legitimate wartime acts, and they must be released and repatriated when hostilities end. n56
Of course, violence in wartime is only immunized to the extent that it is otherwise in accordance with the law of armed conflict. The law of armed conflict only offers benefits to those who play by the rules. Thus, the laws of armed conflict distinguish between violence that is justified by military necessity and militarily unjustifiable violence, and also between violence that is directed properly against enemy combatants and violence that is improperly directed against "protected persons," a category that includes both civilians and enemy combatants who are wounded, sick, or who have been taken prisoner. n57
To put this in the terms used by the law of armed conflict, military violence must seek to avoid "unnecessary" suffering, and violence must be in accordance with the principles of proportionality and discrimination, n58 or else it is not immunized. The principle of proportionality requires that "loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained"; the principle of discrimination requires that military violence must "distinguish between combatants and noncombatants; military objectives and protected people/protected places." n59
Military actions not in accordance with these basic principles lack immunity, and military officials who order or carry out acts of excessive and unnecessary violence or attacks on protected persons and places may be subject to later prosecutions for war crimes. n60 Combatants whose conduct violates these basic principles or otherwise fails to comply with the law of armed conflict may be tried and punished during or after the armed conflict if they are captured by opposing forces; they can be dubbed "unlawful combatants" by opposing forces, and are not entitled to the protections and immunities given to "prisoners of war," who are "lawful combatants." n61
The United States is a party to nearly all of the treaties that together constitute the international law of armed conflict, n62 and for the most part the international law of armed conflict is reflected in U.S. military regulations, the Uniform Code of Military Justice, and other federal statutes. n63 To the extent that a state of armed conflict exists, both U.S. military courts and U.S. civilian courts will apply the international law of armed conflict insofar as it is reflected in U.S. law, and at times U.S. courts will also turn directly to the international law of armed conflict for the purpose of gap-filling or construing otherwise ambiguous aspects of U.S. law that derive from the law of armed conflict. n64
B. National Security Law
Just as the international law of armed conflict permits certain activities in time of war that would be unlawful in time of peace, U.S. domestic law recognizes that national security imperatives may render permissible some otherwise impermissible government acts. n65 To a significant extent this is reflected in various federal statutes that have historically permitted the executive branch certain extraordinary powers in times of national security emergencies and war. n66 The most recent example of such legislation is the USA PATRIOT Act, passed by Congress in the wake of the terrorist attacks on September 11, 2001. n67 The PATRIOT Act is typical of emergency legislation; it has a sunset provision, under which many of its terms expire in 2005, but in the meantime it grants vastly expanded investigatory and surveillance powers to the federal government. n68
It is in the courts, however, that the distinction between "national security" matters and purely domestic matters has been most often elaborated, with courts fairly consistently affording greater deference to government decisions and findings when it comes to national security than when it comes to domestic affairs. n69 The modern doctrine of judicial deference in national security matters is usually traced back to United States v. Curtiss-Wright, the 1936 case in which the Supreme Court famously upheld an arms embargo created by presidential executive order. In Curtiss-Wright, the Court stated that even though "the challenged delegation [of congressional power to the President], if it were confined to internal affairs, would be invalid," it may "nevertheless be sustained on the ground that its exclusive aim is to afford a remedy for a hurtful condition within foreign territory." n70 Following Curtiss-Wright, the Court has generally continued to insist that "matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention." n71 In practice, this has often meant that courts have been less willing to protect individual rights from government interference when the stated reason for government interference is connected to national security. n72
Courts have used a wide range of mechanisms that have had the effect of judicial acquiescence in otherwise problematic or impermissible government actions when these actions are taken in the name of national security. At times, courts have decided cases on the merits but have also given great deference to executive judgments about national security imperatives. n73 At other times, courts have applied various balancing tests, but have tended to conclude that national security considerations outweigh individual rights. n74 At still other times, courts have found means of avoiding decisions on the merits by employing the "political question" doctrine or related doctrines of justiciability, standing, jurisdiction, and ripeness to allow government actions to stand. n75
U.S. history is replete with examples of restrictions on individual liberties that have been upheld in the context of national security imperatives but that would likely not have been permitted absent such justifications. n76 During World War I, for instance, the 1917 Espionage Act and the 1918 Sedition Act placed severe limitations on First
Amendment rights and were used to prosecute more than 2000 people; for the most part, U.S. courts upheld the provisions of these acts in the name of national security. n77 In 1940, the Alien Registration Act was passed, with similar limitations on free expression, and was similarly upheld by the courts on national security grounds. n78 The courts also upheld other more severe forms of interference with individual liberty; in Korematsu v. United States, for example, the Supreme Court notoriously declared that although the Equal Protection Clause mandates strict judicial scrutiny of race-based classifications, "military urgency" nonetheless justified the internment of Japanese Americans during World War II. n79
For the most part, U.S. courts have responded in a similar manner to challenges arising out of post-9/11 government actions, although only a small number of cases have so far reached the courts. In ACLU v. United States Department of Justice, the district court upheld the Justice Department's refusal to grant an ACLU Freedom of Information Act request relating to surveillance activities authorized by the USA PATRIOT Act. n80 The court acknowledged that there was no apparent reason (other than the government's say-so) to determine that the information requested by the ACLU would endanger national security, but concluded that the public's legitimate interest in access to the information could not "overcome the agency's expert judgment that withholding the disputed information is authorized by the Executive Order because it is reasonably connected to the protection of national security." n81 A similar result was reached in Center for National Security Studies v. United States Department of Justice, in which the Court of Appeals for the D.C. Circuit upheld the government's refusal to release the names or other details relating to individuals detained in connection with post-September 11 investigations, on the grounds that the court "owes deference" to the executive branch's judgments about the national security reasons for withholding the information. n82
In North Jersey Media Group v. Ashcroft, the Third Circuit likewise upheld the government's closure of immigration proceedings to the public and the media, arguing that the national security concerns cited by the Attorney General were "credible," although somewhat speculative, and declining to "conduct a judicial inquiry into the credibility of these security concerns," given the traditional judicial "deference to Executive expertise" in national security matters. n83
Similarly, in Hamdi v. Rumsfeld, the Fourth Circuit upheld the indefinite detention without charge of an American citizen, Yaser Hamdi, on the government's bare assertion that Hamdi was captured by Afghan Northern Alliance forces allied with the U.S., in circumstances that proved him to be an "unlawful combatant." n84 The Fourth Circuit upheld the government's refusal to allow Hamdi access to counsel or any mechanism to challenge the evidence on which the government determined that Hamdi was an unlawful combatant, citing the Supreme Court's traditional "great deference to the political branches when called upon to decide cases implicating sensitive matters of foreign policy, national security, or military affairs," n85 and noting that "the executive is best prepared to exercise the military judgment attending the capture of alleged combatants." n86
The most recent Supreme Court Term suggests that U.S. courts will continue to struggle to determine the appropriate boundaries of executive power in times of conflict. On the one hand, the Supreme Court dealt a major blow to the Bush administration by insisting that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens," and declaring that Yaser Hamdi had to be permitted to challenge his detention. n87 Similarly, in Rasul, the Court refused to accept the Bush administration's assertion that U.S. courts lacked jurisdiction to hear challenges to the detention of alleged enemy combatants at Guantanamo. n88 On the other hand, however, the Court was unwilling to insist that U.S. citizens detained as suspected terrorists retain the full range of constitutional rights owed to criminal suspects; in Hamdi's case, the Court did not say specifically how Hamdi should be permitted to challenge his detention, commenting merely that "a citizen held in the United States as an enemy combatant [must] be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker," n89 leaving open the possibility that Hamdi might be entitled only to a sort of "due process lite." For technical reasons, the Court also declined to decide the Padilla case on the merits, thus ducking the question of whether or not the President may lawfully designate a U.S. citizen an enemy combatant when the citizen was detained within the United States, far from a traditional field of battle. n90
In effect, just as the international law of armed conflict gives combatants immunity for actions that would be unlawful in the absence of armed conflict, domestic U.S. jurisprudence implicitly gives the U.S. government immunity for many national-security-related actions that would most likely be considered inappropriate or even unconstitutional in the absence of a threat to national security. Of course, just as the law of armed conflict acknowledges that some wartime violence is so unjustifiable as to constitute war crimes, U.S. courts recognize, at least in principle, that some government actions cannot be justified even with the most compelling security imperatives. n91 Courts also recognize that some government actions undertaken in the name of national security emergencies are not in fact justified by national security imperatives. n92 From time to time, such considerations have led courts to strike down national-security-related legislation or to declare certain executive acts to be unlawful, n93 just as similar considerations on the international level have sometimes led to the prosecution of soldiers or civilian leaders for war crimes - that is, for acts of violence that go beyond those permitted by the law of armed conflict. n94
On the whole, however, both the international law of armed conflict and domestic national security jurisprudence grant substantial deference to claims of "military necessity" and national security necessity, and in both the international and the domestic spheres, courts have generally been reluctant to declare conduct to be unlawful when there is any plausible claim of military or national security necessity.
C. The Assumption of Clear Boundaries
In the international sphere, the development of binding international law applicable during armed conflicts presupposes something so obvious that many of us rarely pause to consider it: it presupposes the idea that "armed conflict" is definable and identifiable, and reasonably easily distinguishable from its opposite - nonconflict, or, in more common parlance, peace. If it is often permissible to deliberately kill large numbers of humans in times of armed conflict, even though such an act would be considered mass murder in times of peace, then it is essential that politicians and courts be able to distinguish readily between conflict and nonconflict, between war and peace. If we cannot make such threshold distinctions, then we have little coherent or consistent basis for asserting that some acts of violence - or restrictions on rights - are appropriate and permissible, while others are inappropriate or illegal.
This is as true of domestic jurisprudence on national security issues as it is of the law of armed conflict. In times of peace, our constitutional doctrines mandate transparency in government and great respect for the rights of individuals. In times of national security crisis, U.S. courts may permit the government to undertake actions that would normally be considered unlawful and even unconstitutional, such as trials by military tribunals that do not afford standard due process protections, n95 or indefinite detention of U.S. citizens with only minimal due process. n96 To a great extent, the willingness of courts to permit such government actions in the name of national security (and the willingness of American citizens to tolerate such actions) is predicated on the notion that such actions are the exception, not the norm; that they are allowed only during emergencies, not forever. Here too, a great deal thus depends on the ability of politicians, citizens, and courts to make a reasonably principled determination of when we face a national security crisis and when we do not.
Drawing principled and analytically satisfying lines between war and peace, conflict and nonconflict, crisis and normalcy has always been difficult on the margins. It is clear enough, for instance, that World Wars I and II were international armed conflicts. Numerous different nation-states formally declared war on numerous other nation-states; hostilities were widespread and ongoing; and millions upon millions of regular, uniformed soldiers were directly involved in the fighting. But more sporadic hostilities between nations, insurgencies within nations, and long-term occupations of territory have never been as amenable to simple categorizations: Do the intermittent skirmishes between India and Pakistan amount to an international armed conflict such that the international law of armed conflict is triggered? Is the Irish Republican Army subject to the law of armed conflict, or is it merely a criminal organization subject to domestic criminal law, as the British government has historically insisted? n97
The law of armed conflict explicitly addresses some of these definitional questions, although it does not resolve them. Thus, the Geneva Conventions apply expressly to "all cases of declared war or of any other armed conflict" that may arise between states that are parties to the Conventions, "even if the state of war is not recognized by one of them." n98 What constitutes an "international armed conflict" is not otherwise defined, but the insistence on the irrelevance of declarations of war makes it clear that "armed conflict" is to be conceptualized functionally, not formalistically. The Geneva Conventions of 1949 and the 1977 Additional Protocols distinguish, however, between armed conflicts that are international and those that are "internal," with only a small subset of the law of armed conflict applying in situations of purely internal armed conflict. n99 Finally, Additional Protocol II also distinguishes between internal armed conflicts and mere "internal disturbances" or "tensions," which do not trigger the applicability of the law of armed conflict at all, except for the core prohibitions contained in Common Article 3 n100 - and some commentators dispute even this. n101
The lines between these various levels and kinds of conflict - and the implications of drawing these lines - have been the subject of continuous scholarly and diplomatic debate, n102 and Part III of this Article will discuss some of the issues and changes that have consistently rendered such line-drawing exercises problematic when it comes to the law of armed conflict. But these line-drawing exercises are even more problematic when we turn back to domestic jurisprudence on national security issues. The law of armed conflict offers some basic tests for determining the existence of armed conflict and thus the applicability of the law of armed conflict, although the utility of these tests has always been contested. In domestic national security jurisprudence, however, there are no such tests; courts have found no principled or universal basis on which to determine the existence of a "threat to national security."
As a result, each new case requires courts to struggle all over again with the boundaries between "purely domestic" matters and matters that implicate national security and foreign affairs, and this has increased the tendency of courts to rely on congressional and/or executive branch determinations. Even if we presume complete good faith on the part of the executive branch and Congress, however, these branches of government have been similarly unable to come up with a consistent and principled account of which matters implicate national security and which do not.
II. Changes: Globalization and Asymmetrical Threat
The lines between conflict and nonconflict, war and peace, crisis and normalcy have always been contestable - and they have always been contested. The analytic categories on which the law of armed conflict depends have been unstable since they were first developed. This instability has been dramatically exacerbated by recent and accelerating changes in the nature of international politics and the nature of conflict and threat, however, so much so that many of the basic categories are no longer analytically justifiable at all. This section outlines briefly some of the background assumptions of the law of armed conflict and the ways in which social, technological, and geopolitical change have rendered these assumptions ever more problematic.
Although every civilization in the world has traditions (often ancient traditions) governing conduct during hostilities, and although today most states throughout the world are parties to the Hague and Geneva Conventions, the modern law of armed conflict was essentially a creation of the West. It developed in reaction to the perceived excesses of the American Civil War, the wars of Italian unification, the Crimean War, the Franco-German wars, the Boer War, and, of course, World Wars I and II. n103 The paradigmatic "conflict" envisioned by the drafters of the Hague and Geneva Conventions was a war between sovereign nation-states, in which well-organized regular armies fought each other on reasonably clearly defined battlefields. As a result, the Hague and Geneva Conventions devoted relatively little space to smaller-scale, episodic, and internal armed conflicts, and many of the rules laid out in these conventions thus seem today like quaint relics of a more chivalric time. n104
Thus, for instance, one's status as a "lawful combatant" under the Geneva Conventions hinges, as a threshold matter, not on one's substantive actions but on certain questions of form: whether one is under responsible command, whether one wears "a fixed distinctive sign recognizable at a distance," and whether one carries arms openly. n105 Similarly, the Hague and Geneva Conventions presuppose a clear distinction between front lines and battlefields, on the one hand, and civilian areas, on the other; and a correspondingly clear distinction between combatants and noncombatants. Once again, this hearkens back to an imagined past in which wars were fought by professional soldiers in elaborate uniforms, clashing on vast, open fields to the sound of bugles and drums.
War was never this tidy, of course; had it ever been so, the law of armed conflict would have been superfluous. Even at the moment of drafting, the Hague and Geneva Conventions were efforts to imagine more orderly and rational forms of bloodshed than had ever in fact existed, and to impose on armed conflict rules that ranged from the moderately aspirational to the almost impossibly so. That said, the rules they developed served as useful benchmarks throughout much of the twentieth century. They perhaps did little, overall, to restrain the brutality and suffering caused by armed conflicts n106 (indeed, some commentators have suggested that they may even have legitimized and increased the violence of war), n107 but they nonetheless provided useful political and legal benchmarks that could be used to evaluate state and nonstate violence, n108 and they also made it reasonably easy to distinguish between "war" and "nonwar."
As I have said, however, the categories and boundaries created and presupposed by the law of armed conflict were unstable from the beginning, n109 and as the decades have passed, they have become still more unstable in the face of accelerating technological and social changes. Technologically, the development of ever more lethal weapons has been a perpetual challenge to law of armed conflict prohibitions on "unnecessary suffering" and to the principles of proportionality and discrimination. Atomic and hydrogen bombs, for instance, are by nature indiscriminate (and many would argue that they are also inherently disproportionate: the damage and suffering they cause is so immense that they could never be appropriately used). n110 Other weapons, such as landmines, are designed to increase the safety of those who deploy them; they allow for the destruction of the enemy when those who placed them are safely out of the way. For the same reason, of course, many mines are relatively indiscriminate; no human mind makes the ultimate decision about when they should be exploded, and they kill civilian children as readily as enemy combatants. n111 Cluster bombs present similar problems: they are an effective means of killing large numbers of enemy combatants at once, but unexploded bomblets can remain a hazard to civilian populations for months or even years. n112
As ever more sophisticated weapons have proliferated, many lethal weapons have become simpler, smaller, and cheaper - so simple, small, and cheap that even poorly organized insurgent movements can afford them, and younger and younger children can use them. Rocket-propelled grenades (RPGs) and various shoulder-fired missiles n113 allow even one or two individuals to bring down airplanes and launch deadly attacks on distant areas. n114 Meanwhile, light and cheap automatic weapons such as the AK-47 can be effectively used by children as young as eight or nine. n115 The spread of scientific knowledge may also make it easier and cheaper for both state and nonstate actors to manufacture chemical, biological, and radiological weapons, and even Internet viruses, which have the potential to cause serious harm by disrupting vital services. n116 These changes have made it harder and harder for states to monopolize large-scale violence, and have been a boon to unscrupulous terrorist and insurgent groups. n117
Other social and technological changes associated with the term "globalization" have also challenged state monopolization of mass violence. It is a truism to observe that advances in transportation and communication technologies have made the world a smaller place: groups once unable to coordinate effectively even in fairly small geographical areas can now coordinate across international borders cheaply and easily. Dozens of genies have been released from their bottles, and no one has yet found a mechanism for stopping them up again. With the end of the Cold War, ethnic and religious conflicts bubbled over from Central Europe to sub-Saharan Africa. In these conflicts, large segments of civilian populations at times have been mobilized (or intimidated) into the ranks of combatants; where the elimination of an entire ethnic or religious group is seen as the goal, traditional distinctions between combatants and noncombatants have had little salience. n118 And at the same time that highly localized conceptions of identity have led to unspeakable brutality in some conflicts (between Serbs and Kosovar Albanians, for instance, or Hutus and Tutsis in Rwanda), increasingly globalized conceptions of identity are proving to be equally dangerous, as the rise of al Qaeda demonstrates.
The rise of global terrorism represents the newest and most serious challenge to the old law of armed conflict framework. n119 The September 11 attacks, for example, were carried out by nineteen hijackers who hailed from several different countries, all of which are ostensibly U.S. allies. n120 The hijackers had previously lived and trained in states as varied as Germany, Pakistan, Afghanistan, Chechnya and the U.S., where most of them lived openly for months or years. n121 In addition to the September 11 attacks, al Qaeda is credited with the 1995 bombing of the World Trade Center, the 1998 attacks on the U.S. embassies in Kenya and Tanzania, the 2000 attack on the U.S.S. Cole in Yemen, and with attacks on other targets from Indonesia to Turkey. n122 Since September 11, it has become clear that al Qaeda is an equal opportunity employer when it comes to nationality and ethnicity, if not when it comes to gender or ideology: al Qaeda operatives have allegedly included native-born American citizens, as well as British, French, Australian, and German citizens and nationals of various Arab and Muslim states. n123 Al Qaeda knows no borders, and its operatives wear no uniforms, operating by stealth more often than they operate openly. n124 And these tactics work: al Qaeda has proven capable of massive violence and has caused thousands of deaths. n125
III. The Breakdown of Boundaries
These recent and continuously accelerating changes have further destabilized the boundaries taken for granted by the laws of armed conflict, and they have also further problematized the distinction in domestic jurisprudence between national security matters and purely domestic matters. This section briefly examines some of the categories that have become most untenable as a result of the geopolitical changes of the last few decades, and in particular as a result of post-9/11 events.
A. "International" Versus "Internal" Armed Conflicts
As noted above, the Geneva Conventions of 1949 and their 1977 Additional Protocols distinguish between international armed conflicts and armed conflicts "not of an international character." n126 The Geneva Conventions of 1949 are fully applicable only to situations of international armed conflict (as were the Hague Conventions before them). n127 When conflicts are purely "internal," only Article 3, which is common to all four Geneva Conventions, applies. n128 The distinction between international and internal armed conflicts traditionally has great significance, since if a conflict is declared to be internal, it does not trigger the law of armed conflict except for the minimal provisions of Common Article 3:
I. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria ... .
The following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
II. The wounded and sick shall be collected and cared for. n129
Additional Protocol II of 1977, which has been ratified by 156 states, n130 extends to noninternational armed conflicts some of the same rules applicable to international armed conflicts, largely by expanding upon the meaning of Common Article 3. n131 Nonetheless, the rules applicable in international armed conflicts and in internal armed conflicts are far from parallel; as one commentator has noted, the Geneva Conventions and their Additional Protocols contain close to 600 articles, but only Common Article 3 and the 28 articles of Additional Protocol II apply to noninternational armed conflicts. n132 What's more, several dozen nations, including the U.S., have not ratified Additional Protocol II (although the U.S. has agreed to be bound to most of it as a matter of customary international law or U.S. policy). n133 As a result, the distinction between international and internal armed conflict still has great significance.
Additional Protocol II only applies, in any case, to those noninternational
armed conflicts ... which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. n134
This means that the Protocol does not technically apply to clashes between two insurgent groups, that it probably does not apply to clashes between insurgents and police or state-sponsored paramilitary groups (rather than regular military forces), and that it does not apply when insurgent forces have an overly decentralized command structure or lack a territorial base. The Protocol also does not apply to "situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature." n135
Since the end of World War II, there have been very few "international armed conflicts" as defined by the Geneva Conventions. n136 To a significant extent, the U.N. Charter structure, in conjunction with Cold War politics, kept states from direct conflict with one another. Although recent years have seen several classic examples of international armed conflicts (including the NATO intervention in Kosovo, the U.S. invasion of Afghanistan, and, most recently, the U.S. invasion of Iraq), n137 the overwhelming majority of recent conflicts have not fit squarely either into the category of "international" armed conflict or "internal" armed conflict. Most notably, recent decades have witnessed two common kinds of armed conflicts that defy easy categorization: conflicts in which insurgent groups train and attack from across international borders because neighboring states are too weak to prevent their territory from being used as a base, and conflicts in which one or more "outside" states provide material support (weapons, financing, training, safe harbor, etc.) to insurgents fighting within another state, despite official denials of any involvement. n138 Messy cross-border insurgencies and proxy wars seem more than just "internal," but they frequently do not trigger the full applicability of the law of armed conflict. n139
The rise of globally diffuse terrorist networks poses even more of a conundrum. Al Qaeda is clearly not a state, much less a "High Contracting Party" to the Geneva Conventions, n140 so a "conflict" between the U.S. and al Qaeda apparently cannot be an "international armed conflict" as defined by the Geneva Conventions. n141 On the other hand, it makes no sense to conceptualize a conflict with al Qaeda as an "internal" armed conflict either: al Qaeda has some presence in the U.S., to be sure, but its permanent U.S. presence appears to be minimal, and it also has some presence in dozens of other states around the globe. It attacks U.S. interests around the globe, and the U.S. accordingly wishes to attack its interests around the globe. But if the struggle between the U.S. and al Qaeda is conceptualized as an armed conflict, what aspects of the law of armed conflict are applicable beyond, perhaps, the minimal rules laid out in Common Article 3 of the Geneva Conventions?
B. Crime Versus Conflict
This raises a related question: on what basis can we differentiate between those acts of violence that are best conceptualized as "crimes" (subject to criminal law), and those acts of violence best conceptualized as "armed conflicts" (subject to the law of armed conflict)? n142 Although the Geneva Conventions and its Additional Protocols do not provide an obvious answer to this question, they take it for granted that not every act of violence should be construed as part of an armed conflict. Article 1.2 of Additional Protocol II states that the Protocol "shall not apply to situations of internal disturbances, and tensions such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts." n143 If these are clearly not armed conflicts, the implication is that the law of armed conflict is not triggered, and that states should deal with these threats through their own domestic criminal law, n144 supplemented if necessary by bilateral and multilateral international cooperation agreements. Since "isolated and sporadic acts of violence" are not armed conflicts, there can be no combatant immunity for the perpetrators, who are therefore subject to subsequent trial and punishment for their conduct. n145
Protocol II does not expressly exclude from consideration clashes inside a state. Article 1.1 states that the Protocol applies to armed conflicts between two or more insurgent groups, or clashes between state military forces and insurgent groups that are not "organized" and "under responsible command," or that do not "exercise such control over a part of [the state's] territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol." n146 By negative implication, however, such clashes too seem to be left to domestic criminal law rather than to the international law of armed conflict. (This, indeed, is what the U.S. government did in the case of the 1995 bombing of the Federal Building in Oklahoma City, which killed 168 people. The main perpetrators, Timothy McVeigh and Terry Nichols, were charged with ordinary domestic crimes and tried by ordinary civilian courts; no U.S. government officials seriously considered applying the law of armed conflict to the bombing, instead of domestic criminal law.) n147
How, then, should the U.S. struggle against al Qaeda be conceptualized? As noted in the previous sections, it does not appear to be a classic "international armed conflict" as defined by the Geneva Conventions, but it can hardly be said to be a classic "internal armed conflict" either. Al Qaeda holds no U.S. territory and operates around the globe. Is the struggle between the U.S. and al Qaeda in fact an armed conflict at all?
In the wake of September 11, many commentators, especially in the human rights law community, insisted that the phrase "the war on terrorism" should be construed only metaphorically, arguing that the September 11 attacks were not part of an "armed conflict" but were simply a crime, albeit a crime of colossal magnitude. Since the conflict with al Qaeda could neither be conceptualized as "international" nor "internal," these commentators argued, it had to be the case that it was not an armed conflict at all. n148 Although al Qaeda is internationalized, it is not a state. In any case, al Qaeda's attacks were relatively isolated and sporadic; al Qaeda holds no defined territory and controls no population. Thus, the argument was that al Qaeda was best analogized to global organized crime networks, such as networks of weapons or drug traffickers. Addressing such global criminal networks requires creativity and international cooperation; it requires the use of domestic criminal law and other domestic and international legal tools as well, such as multilateral agreements to freeze assets of international criminal enterprises - but it does not require (and is not subject to) the international law of armed conflict.
The response from the Bush administration was that although such an approach might suffice to combat organized crime, global terrorism is a different sort of animal and the "war on terror" is no mere metaphor. n149 Global drug trafficking networks and other international criminal enterprises occasionally carry out murders, and they do great social harm, but the violence and harm caused by al Qaeda are of a different order. The September 11 attacks were intended to cause mass death, and they did cause mass death. Al Qaeda leaders have stated that they regard themselves as "at war" with the United States, n150 and that they intend to continue to plan attacks against U.S. interests, including attacks aimed at civilian populations. To the Bush administration, although al Qaeda's attacks on America are not entirely continuous, they are also not "isolated" or "sporadic"; on the contrary, the September 11 attacks were part of a series of attacks that began with the 1993 bombing of the World Trade Center and continue to this day, although no attacks have been as spectacular or deadly as the September 11 attacks.
Additionally, according to the Bush administration, conceptualizing al Qaeda's attacks as mere "crimes" risks eviscerating U.S. efforts to prevent more attacks. If the U.S. is constrained by "ordinary" law, it cannot launch preemptive strikes against al Qaeda either at home or in other nations, but must instead wait on the slow processes of international legal cooperation abroad, and the warrants and showings of probable cause at home. Such techniques may be adequate for even the most sinister Colombian drug gangs, but they are unlikely to have much effect on an organization as deadly as al Qaeda.
How should we decide whether al Qaeda is a criminal enterprise or a belligerent armed force? The law of armed conflict provides no clear guidance, and it seems to me that the Bush administration's arguments for viewing the September 11 attacks as "armed conflict" are - from a legal perspective - at least as persuasive as the arguments for viewing the September 11 attacks as crimes. The law of armed conflict's line between crime and armed conflict was drawn in a different era, before the internet, before cell phones, before the advent of mass air travel, before the end of the Cold War scattered deadly weapons around the globe, and before the collapse of so many weak governments that were once propped up by the U.S. and the Soviet Union. There is no longer any basis for asserting a clearly discernable line between crime and conflict. n151 Al Qaeda will not be unique; in the future, there will be more and more al Qaedas, organizations that have something in common with criminal gangs and something in common with armies.
This is not to say that the Bush administration's decision to conceptualize the struggle against al Qaeda in terms of armed conflict was either inevitable or wise. It was a policy decision, and a policy decision that was neither mandated nor precluded by existing legal norms. Like any policy decision, it can be subjected to a cost-benefit analysis: are the potential gains of conceptualizing the "war on terror" as a literal war worth the potential costs? n152 But it is important to draw a distinction between the legal arguments and the policy arguments.
Although the policy decision to view the "war on terror" as a literal war is legally plausible, the potential implications of this policy decision are staggering. If the law of armed conflict governs U.S. efforts to combat al Qaeda, then the government can plausibly assert that it should have the power to detain U.S. citizens on U.S. territory and hold them indefinitely and without charge, either as prisoners of war or as unlawful combatants. In neither case would they be entitled to trial in a regular court. This is the argument made by Bush administration lawyers in the case of terror suspect Jose Padilla, who was detained in Chicago after getting off a plane from Pakistan. While the Supreme Court's recent decision in Hamdi suggests that the Court considers such government assertions overreaching, the Court pointedly refused to decide the Padilla case on the merits, and Padilla remains in custody today, still uncharged and without having had any opportunity to challenge the basis for his detention. n153
For that matter, if the law of armed conflict is applicable even to actions taken by the United States on U.S. territory, there seems to be no legal bar to preemptive government killings of suspected al Qaeda operatives in the U.S. (including U.S. citizens) although such killings would, in peacetime, constitute extrajudicial executions. n154 If such governmental detentions and killings are permissible, this virtually eliminates the rule of law as we have come to know it.
C. Geographical Boundaries
Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion ... and you allow him to make war at pleasure... . If to-day, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, "I see no probability of the British invading us' but he will say to you "be silent; I see it, if you don't.'
- Abraham Lincoln n155 The "crime or conflict" question is closely related to another traditional distinction drawn by the law of armed conflict. The traditional paradigm of armed conflict assumes that at any given time, it will be readily apparent where the armed conflict is taking place and where it is not. To put it another way, the traditional paradigm assumes clear spatial boundaries between zones of war and zones of peace.
During World War II, for example, some states were at war, and others were neutral; thus, there was armed conflict in France, Germany, and Britain, but not in Switzerland. Switzerland was at peace, and for any of the warring parties to use military force within Switzerland would have been a clear breach of international legal norms. If the U.S. wanted to kill a German military official who lived in Switzerland, there was no legal basis for doing so, since Switzerland was not at war with anyone. If a German official in Switzerland committed a crime against an American, the only legal recourse of the U.S. government would be to urge the Swiss authorities to arrest the German criminal, and perhaps extradite him to face trial in the U.S. Since Switzerland was not a party to the armed conflict occurring in much of the rest of Europe, the U.S. could not legally abduct or kill a German national (or anyone else) inside Switzerland, regardless of any compelling political or military reasons for doing so. n156
The distinction between zones of war and zones of peace - between spatial areas in which the law of armed conflict governs and spatial areas in which "ordinary" domestic law and international agreements govern - is another once clear-cut distinction that no longer seems tenable in light of recent events. n157 This was driven home by the 2002 U.S. missile attack on a car thought to be carrying al Qaeda operatives in Yemen that killed six people, including a U.S. citizen. The car had apparently been monitored for some time by both Yemeni and American intelligence agencies, since it was thought to be used by al Qaeda officials. As the car drove through Yemen's Marib region, it was struck by a Hellfire missile fired from an unmanned CIA airplane, a "predator drone." n158
The U.S. justification for the attack was again straightforward: n159 al Qaeda operates in numerous countries, and to effectively defend U.S. interests against future - and perhaps imminent - attacks, the U.S. may need at times to make preemptive strikes in self-defense. n160 Al Qaeda was present in Yemen, and had previously struck a U.S. target in Yemen (the October 2000 attack on the U.S.S. Cole in Yemeni waters, which killed 17 American sailors). The U.S. had evidence that al Qaeda operatives in Yemen were planning another attack on U.S. interests. Article 51 of the U.N. Charter declares that states have an "inherent right of individual or collective self-defence if an armed attack occurs against [them], until the Security Council has taken measures necessary to maintain international peace and security." n161 The missile attack on the al Qaeda suspects in Yemen was just such a permissible act of self-defense, allowed under both the U.N. Charter and the law of armed conflict. Alternatively, argued the U.S., the doctrine of preemptive self-defense is unnecessary, because the mere presence of the enemy - al Qaeda - in Yemen automatically rendered Yemen part of the conflict zone, in which the U.S. could legitimately take military action against enemy combatants. n162
Here too, many in the human rights law and international law communities protested. n163 Amnesty International, for example, ignored the argument relating to preemptive self-defense (which has been widely criticized on the grounds that the use of force in self-defense should only be permitted to ward off an "imminent" threat), n164 and argued simply that the laws of armed conflict were not applicable to the Yemeni missile strike:
Under existing international humanitarian law, it is not possible to have an international armed conflict between a state on the one hand and a nonstate actor on the other, should the armed group not form part of the armed forces of a Party to the Geneva Conventions... . There is no armed conflict between the U.S. and Yemen, and the Yemeni Government clearly cooperated in the air strike. In addition, there is no internal armed conflict between the government of Yemen (with the support of U.S. forces) and al-Qa'ida. Accordingly, the proper standards applicable to this situation were law enforcement standards ... . n165
If law enforcement standards, rather the law of armed conflict, controlled, then the missile strike takes on a different and more sinister character. As Amnesty International put it, "if the attack was a deliberate killing, in lieu of arrest, in circumstances in which the men did not pose an immediate threat, the killings would amount to extrajudicial executions in violation of international human rights law." n166 Presumably, such extrajudicial killings would also violate Yemeni law, and they would certainly violate U.S. law, particularly with regard to the U.S. citizen who was killed in the attack. As suggested in the previous section, it goes without saying that in normal times, the U.S. government's executive branch cannot kill a criminal suspect in lieu of arresting and trying her.
Here again, I think there is no single "legal" answer. The approach taken by Amnesty International rests on a traditional, if formalistic, reading of the law of armed conflict; the approach of the U.S. also rests on a plausible, if flexible, reading of the law of armed conflict n167 and the U.N. Charter. n168 The policy choice made by the Bush administration can nonetheless be questioned and criticized, however, for just as the breakdown of the boundaries between crime and conflict has potentially staggering implications, so too does the breakdown of the spatial boundaries between zones of conflict and zones of peace. If there is no place on earth where the U.S. cannot legitimately use military force at any time, without warning, other states will claim the same rights, and we risk an escalating spiral of unconstrained violence - precisely what the creators of the U.N. Charter system sought to avoid. n169
As suggested in the previous section's discussion of the breakdown of the boundary between crime and conflict, this breakdown of spatial boundaries also has potentially breathtaking domestic consequences. If the mere presence of a suspected al Qaeda operative is sufficient to render any place a zone of armed conflict, in which the law of armed conflict trumps other legal regimes, what legal principles would prevent the U.S. government from preemptively killing - on U.S. territory - any U.S. citizen suspected of aiding al Qaeda?
D. War Without End: Temporal Boundaries
Only the dead have seen the end of war.
- Douglas MacArthur, May 12, 1962. n170
The lamps are going out all over Europe: we shall not see them lit again in our lifetime.
- Edward Grey, Aug. 3, 1914. n171 The laws of armed conflict traditionally conceptualize conflict as bounded temporally as well as spatially. Spatially, there were zones of war, in which the laws of armed conflict applied, and zones of peace, in which ordinary domestic law and international law applied. Temporally, the laws of armed conflict draw a sharp distinction between armed conflict on the one hand, and the "cessation of hostilities"--peace - on the other hand. This distinction reflects customary understanding: wars are exceptional events, not the norm; they have a beginning and an end. Some are quite short (the Six-Day War between Israel and Egypt, Jordan, and Syria, for example), and others are relatively long (World War II lasted for six years in Europe). n172 But in the traditional paradigm, war is clearly defined, marked by the formal surrender of the defeated parties or by an armistice or other peace agreement. Thus, we celebrate "V.E. Day" or "Armistice Day" to memorialize the end of hostilities. While, as a practical matter, hostilities sometimes continue for a short time after the "end" of a war (in World War II, some isolated groups of soldiers did not receive word of the war's end until weeks or even months later, and therefore kept fighting even after the formal end of the war), n173 as a legal matter, wars end when the opposing parties formally agree to stop fighting.
Here again, the "war on terrorism" renders the traditional temporal distinctions between war and peace less salient. It is not simply that we do not know when the war on terror will end; no one, during a war, can ever say with certainty just when the war will end, and prewar prognostications are often badly off-base. It is that by its nature, the war on terrorism is unlikely ever to end. Since the enemy in the war on terrorism is shadowy and shifting, and since it seems overwhelmingly likely that the U.S. will face terrorist threats for decades to come, even if all currently living al Qaeda members are apprehended or killed, there is no obvious point at which the U.S. will be able to declare victory and end the conflict. For that matter, since al Qaeda is not a state, it is not obvious that al Qaeda can formally surrender or enter into a peace agreement. And since we apparently lack any means of formal communication with al Qaeda's leadership - assuming al Qaeda even has a command hierarchy similar to that of a state or regular army - there is no clear way to negotiate with al Qaeda even if we wanted to do so. What this means is that we today face the literal prospect of war without end.
The erosion of the temporal boundaries between war and nonwar has particular significance for prisoners of war and other detainees. Although POWs are immunized for their actions as combatants, they can be lawfully detained by opposing forces, and kept in detention until the end of the war. "After the cessation of active hostilities," however, the Third Geneva Convention requires that they be "released and repatriated without delay." n174 So far, as will be discussed below, the U.S. has declined to grant POW status to detainees of the war on terror. n175 But should the U.S. or other nations detain lawful enemy combatants in the course of the war on terrorism and declare them to be prisoners of war, they should release and repatriate these captives after the cessation of hostilities. If there is no point at which hostilities have unequivocally ceased, however, there is no point at which prisoners of war can expect to be released, and they might find themselves trapped in limbo indefinitely. n176
In practice, this is the fate of the hundreds of detainees now held at the U.S. military base in Guantanamo, Cuba. n177 Although the U.S. government insists that the detainees are unlawful combatants rather than prisoners of war with combatant immunity, and that it therefore has the legal right to try and punish the detainees in military tribunals, it only recently initiated proceedings to try any of the detainees (and has announced plans to try only a tiny handful of the more than six hundred still detained). n178 If there were any way to predict a clear end to the war on terrorism, the U.S. would likely either try the detainees, release them as part of some peace agreement, or some mix of the two. n179 As it stands, however, the indefinite nature of the conflict means that these detainees may remain in detention indefinitely, neither charged nor released, n180 with no access to counsel n181 and no international or judicial monitoring of conditions. n182 After several years of intensifying international criticism, the Defense Department recently began to provide Guantanamo detainees with "administrative reviews" to determine whether or not they are unlawful combatants. The reviews involve little process, however, and detainees are not entitled to lawyers. n183
The disintegration of the temporal boundaries distinguishing times of war from times of peace has other implications as well. As later sections of this article will discuss, there are many kinds of government actions, both domestic and international, that might be tolerable for a finite period of time, but that would be intolerable were they to last forever. n184
E. We Are All at War: Distinctions Between Persons
The war on terrorism has also eroded the already problematic distinctions between various categories of persons. The boundary between civilians and combatants is one of the oldest and most hallowed distinctions in the law of armed conflict. Although civilians can sacrifice their right to the protection of the law of armed conflict by taking part in the hostilities (as spies, saboteurs, or partisans, for instance), they are normally protected in times of war. The law of armed conflict prohibits the intentional targeting of civilians, and Common Article 3 of the Geneva Conventions implicitly makes this prohibition applicable even to those armed conflicts "not of an international character": it declares that parties to the conflict must refrain from "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" with regard to "persons taking no active part in the hostilities." n185 Failure to respect this general prohibition against the intentional targeting of civilians constitutes a war crime. Depending on whether a conflict is "international" or "internal," civilians also benefit from a range of other protections. n186
Needless to say, there have been longstanding debates about the definition of "civilian" and the meaning of the phrase "taking no active part in the hostilities." Different states have adopted slightly different approaches, with the debate revolving around questions such as whether civilians working in munitions plants can be permissibly targeted, whether civilians working in television stations used by enemy states for propaganda purposes can be targeted, whether civilian employees of the military can be targeted, and so on.
To some extent, commentators have also questioned the basic analytic assumptions embedded in the distinction between civilians and combatants: the distinction appears to assume that uniformed combatants can be targeted because their sole and inherent professional purpose is to cause harm to the enemy, and they do in fact cause direct harm to the enemy, while civilians either cause no harm to opposing forces or cause only indirect harm.
This distinction, too, rests on certain anachronistic assumptions about the nature of armed conflict. If the paradigmatic battle imagined by the framers of the Geneva Conventions was one fought by opposing uniformed armies on a large plain, with civilians tucked away safely far behind the front lines, it made sense to posit a clear distinction between civilians and combatants. In fact, even the battles of the nineteenth century rarely fit this paradigm, and modern conflict fits this paradigm still less well. In guerilla warfare, combatants deliberately seek to blend into the civilian population. Even in modern conflicts that do not involve guerilla fighters, civilians not only produce the foods and supplies that keep armies going, they also create and maintain the technologies of war. They may vote for politicians who favor particular wars or wartime policies, or give money to support such policies. Civilian computer technicians thousands of miles away from battlefields may work side by side with uniformed soldiers to program and troubleshoot missile guidance or military communication systems. And with modern technologies such as long-range missiles and unmanned missile-bearing planes, the distance between the "front" and the "rear," if such terms remain meaningful at all, may be half the globe.
Furthermore, the distinction between "directly" and "indirectly" causing harm to an opposing party is mainly artificial. It is not obvious that there is any moral distinction, for instance, between an avid civilian supporter of Slobodan Milosevic's ethnic cleansing policies (who voted for Milosevic and perhaps donated money to his causes) and a young conscript in Milosevic's army. The civilian may have taken active steps to further and support Milosevic's brutal policies, but would still be entitled to protected status under the laws of armed conflict. The military conscript might actively oppose Milosevic and seek to avoid participation in combat, but he would be a legitimate target of opposing forces.
The war on terrorism renders the lines between civilians and combatants still more incoherent. Terrorists generally do not work for a state. Like guerilla fighters, they do not wear uniforms or openly acknowledge their identities, and they seek to blend in with civilian populations.
Moreover, many terrorists may never play any "direct" role in attacks. Of course, Mohammed Atta and the other eighteen September 11 hijackers clearly engaged in acts of direct violence against the United States, and if we use a law of armed conflict paradigm, rather than a criminal law paradigm, to address September 11, it would clearly have been lawful for the U.S. to have tried Atta for war crimes had he survived. Likewise, if there is an armed conflict between the U.S. and al Qaeda, it is lawful for the U.S. to target al Qaeda operatives actively engaged in attacks on the U.S. - in Yemen or anywhere else. But what about the dozens or thousands of people around the world who are al Qaeda sympathizers and supporters, yet have no formal "rank" or title, and whose support never comes close to engaging in actual violence? Is an American clerk who obtained false identification for a September 11 hijacker a civilian, or a combatant? Would it matter if she was unaware of the planned attacks, but sympathized with al Qaeda's broader aims? Were the wives of the married September 11 hijackers civilians or combatants? Are employees of charitable organizations that allow some funds to be diverted to al Qaeda combatants or civilians? Applying the law of armed conflict to terrorism, there is no obvious way to decide.
The distinction between civilians and combatants is somewhat analogous to another important distinction between persons: the distinction between lawful and unlawful combatants. Lawful combatants are immunized for their acts of violence during the conflict, assuming those acts of violence otherwise comport with the law of armed conflict. If captured, they must be treated as prisoners of war. They cannot be punished, and they must be released at the end of the conflict. Unlawful combatants, in contrast, are combatants who in one way or another violate the law of armed conflict, either by failing to comply with formal definitions of lawful combatants or by committing a war crime. If unlawful combatants are captured, they may be tried and punished, either by regular courts or by military tribunals. n187
Under the law of armed conflicts, to be considered "prisoners of war," combatants who are members of militias or other volunteer corps must be "commanded by a person responsible for his subordinates," have a "fixed distinctive sign recognizable at a distance" (e.g, a uniform, banner, or other sign by which combatants can be distinguished from civilians), and "[carry] arms openly," in addition to otherwise complying with "the laws and customs of war." n188 The Bush administration has apparently interpreted this to mean that all al Qaeda operatives are inherently unlawful combatants, since they neither wear uniforms nor carry arms openly. n189 As a result, the Bush administration has refused to grant prisoner of war status to any of the hundreds of people currently detained at Guantanamo Bay. The Bush administration has also insisted that members of the Taliban fighting forces captured during the fighting in Afghanistan are similarly not lawful combatants, evidently on the grounds that Taliban fighters wore no uniforms and did not always bear arms openly. n190 The administration has also argued, with regard to both al Qaeda and Taliban detainees, that since neither the Taliban, as such, nor al Qaeda, as such, abide by "the laws and customs of war," all members of both groups are unlawful combatants. n191
These arguments have been challenged by a range of commentators, from human rights groups and scholars to foreign diplomats and military lawyers. n192 With regard to al Qaeda detainees, the administration's case is strong, but it nevertheless seems problematic to declare, by fiat, that all suspected al Qaeda members are unlawful combatants. Hypothetically, some al Qaeda supporters might claim to have worn recognizable signs or to have carried arms openly, and Article 5 of the Geneva Convention on Prisoners of War requires that "should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy ... [are lawful combatants], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." n193 However, the United States has held no Article 5 hearings to determine the status of Guantanamo detainees. n194
The administration's case for regarding Taliban detainees as per se unlawful combatants is weaker. The Taliban was Afghanistan's de facto government, and its armed forces were thus a regular army. For the most part, Taliban forces did carry arms openly, and while they wore no uniforms in the Western sense, apparently they normally wore distinctive black turbans. n195 The Taliban allegedly committed numerous violations of the laws and customs of war (for example, targeting civilians), but as the Lawyers Committee for Human Rights has noted, "the blanket labeling as "unlawful' of an entire nation's regular army because of a practice of even widespread war crimes is unprecedented." n196 As with the al Qaeda detainees, the United States has not afforded any of the Taliban detainees at Guantanamo Bay Article 5 hearings to determine their status. n197
It should be noted that the rules for determining the lawfulness or unlawfulness of a combatant are themselves archaic and arguably biased in favor of wealthier armies. The notion that "lawfulness" might hinge, for instance, on the wearing of "fixed distinctive signs" is odd; again, the classic paradigm, with its images of bugles and banners, does not accord well with the realities of modern conflicts, in which the rag-tag soldiers of third-world states and militias may simply lack the resources to wear anything resembling a uniform. Here, the law of armed conflict offers a set of chivalric rules that favors those with more resources. n198
In the war against terrorism, the U.S. has so far insisted that it recognizes no lawful enemy combatants at all. n199 This position also has troubling and far-reaching implications. The U.S. government has detained U.S. citizens as "unlawful combatants," n200 and it has also detained foreign children as young as thirteen at Guantanamo. n201 The refusal of the U.S. government to place limits on the categories of people who may be detained indefinitely - without being charged and without any of the protections accorded either to POWs or to criminal defendants - is worrisome, particularly in the absence of clear spatial or temporal limits to the war on terror. n202
The increasing blurriness of the distinction between lawful and unlawful combatants has also created a slippery slope problem. The Bush administration has used the genuine ambiguity about what rules should govern which persons to assert that there is also ambiguity over whether detainees can subjected to interrogation methods such as hooding, sleep deprivation, use of dogs, sensory deprivation, nudity, and the placement of prisoners in painful positions for extended periods. In fact, international law makes it clear that torture and cruel or inhumane treatment of detainees is prohibited regardless of the detainees' status. n203
F. The Boundaries Between National Security and Domestic Affairs
Inter armes, silent legis. [In time of war, the law is silent].
- Cicero n204 If recent events have rendered less and less coherent many of the time-honored distinctions drawn by the law of armed conflict, they have had a similar impact on the customary domestic jurisprudential distinction between matters affecting "national security" and matters that are entirely domestic in nature. As discussed in Part II, U.S. courts have traditionally granted far greater deference to the government (particularly the executive branch) when national security is at stake. On the whole, U.S. courts have effectively accorded the government something roughly analogous to "combatant immunity" when it comes to actions taken in furtherance of national security. Thus, courts have generally permitted government restrictions on individual liberties in response to wars and other urgent threats to national security, even when the same restrictions would not have been permissible absent such national security justifications.
This judicial deference rests in part on structural assumptions derived from the Constitution. Congress and the executive are jointly charged with carrying out foreign and military affairs, n205 and the judiciary has generally taken the view that these branches of government are far better placed than the judiciary to make the difficult judgments called for in "external" matters, n206 particularly those that relate to national security threats (including judgments as to the very existence of a threat). The President, as Commander-in-Chief, is therefore accorded particular deference when it comes to matters affecting the security of the nation.
The traditional judicial willingness to defer to government judgments on national security issues also derives from something else, however: the assumption that cases involving national security matters will be the exception, rather than the norm. This assumption makes intuitive sense. Courts always engage in balancing tests when evaluating government incursions on individual rights, and when the government interest in infringing on protected rights is particularly urgent, courts may legitimately feel that this urgency tips the balance in favor of the government. There are many restrictions on individual rights that may be necessary and tolerable on an emergency basis, provided that they do not go on indefinitely. n207
Like the distinctions drawn by the law of armed conflict, the distinction between national security and internal affairs has always been contested. At times, courts have subjected government actions undertaken in the name of national security to great scrutiny and refused to uphold them. More often, though, the courts have deferred to the government, although scholars and activists have always challenged these court decisions. n208 History strongly suggests, however, that deference to government claims of national security imperatives has often led courts to uphold government actions that in hindsight appeared unjustified. Indeed, history has revealed numerous cases in which government officials have knowingly misrepresented the nature of the threat to the courts. n209
The new U.S. "war on terrorism" is rendering judicial efforts to distinguish between national security cases and "ordinary" domestic issues ever more difficult, so much so that judicial line-drawing efforts appear almost completely arbitrary. If all acts of terrorism - -or acts of support for terrorism - -constitute acts of war, and if the war on terror has neither spatial nor temporal boundaries, then arguably almost anything might be said to implicate national security concerns, including actions that would ordinarily be construed as simple crimes. Thus, the government has argued that even U.S. citizens who are suspected of aiding al Qaeda can be detained and held indefinitely as unlawful enemy combatants rather than charged with a crime and offered the usual protections constitutionally guaranteed to all criminal suspects.
In Hamdi v. Rumsfeld, n210 the Supreme Court struggled to address these arguments in the context of the detention of U.S. Citizen Yaser Hamdi. According to the government, Hamdi was detained by U.S. allies in the Northern Alliance during the war in Afghanistan and subsequently handed over to U.S. authorities. n211 The Department of Defense designated Hamdi an "unlawful combatant," and detained him without charge beginning in 2001. n212 In 2003, the Fourth Circuit upheld the government's detention of Hamdi, citing the Supreme Court's traditional "great deference to the political branches when called upon to decide cases implicating sensitive matters of foreign policy, national security, or military affairs," n213 and noting that the executive "is best prepared to exercise the military judgment attending the capture of alleged combatants." n214 To the Fourth Circuit, a two-page affidavit from a Defense Department civilian official asserting that Hamdi was an unlawful combatant was deemed sufficient to justify his indefinite detention without charge, access to counsel, n215 or any opportunity to challenge the government's factual assertions. n216
The Supreme Court was less willing than the Fourth Circuit to defer wholly to the government, but the Justices were unable to agree on much beyond the notion that U.S. citizens retain at least some rights even in times of war. On the one hand, the Court issued a stinging reprimand to the Bush administration, insisting that "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens," and declaring that Yaser Hamdi had to be permitted to challenge his detention. n217 On the other hand, the Court did not say specifically how Hamdi should be permitted to challenge his detention, commenting merely that "a citizen held in the United States as an enemy combatant [must] be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker," n218 leaving open the possibility that Hamdi might be entitled only to a sort of "due process lite." A wide range of questions result: should Hamdi and others similarly situated be able to cross-examine witnesses and consult freely with counsel? What should be the standard of proof needed to hold a person as an enemy combatant? What constitutes a "neutral decisionmaker"? Would an alleged enemy combatant who failed to persuade a "neutral decisionmaker" of her innocence be entitled to appeal, and if so, to whom? Despite the ringing rhetoric in Justice O'Connor's majority decision, the practical effect of Hamdi was to toss the ball back into the executive branch's court, leaving the government free to decide how much due process is enough.
In the related case of Jose Padilla, the Supreme Court similarly passed up an opportunity to decisively rein in executive power. Padilla, like Hamdi a U.S. citizen, was arrested in Chicago in May 2002. n219 He was initially held as a federal material witness whose testimony might be relevant to other terrorism-related investigations. n220 Federal officials told the press that Padilla was in contact with al Qaeda and had planned to create a so-called "dirty bomb." n221 A month after his initial detention, the President designated Padilla an "enemy combatant" (and presumptively an unlawful combatant). n222 Padilla was transferred to military custody where he has remained ever since. The government has not charged Padilla with any crime, has asserted that he has no right to counsel, and has not said whether or not Padilla will eventually face charges before a military commission of any sort. n223
The District Court of the Southern District of New York ordered the government to give Padilla access to counsel so that he could challenge the evidence on which he had been declared an enemy combatant, although the U.S. government refused to comply with the court's order. n224 But the district court nevertheless accepted the government's argument that if a U.S. citizen is an enemy combatant, then she can be held indefinitely without charge. n225 The court agreed that national security concerns merit great deference to the government's judgment of the appropriateness of using the "war" paradigm rather than the "crime" paradigm. n226 Further, the court agreed that the government need not prove beyond a reasonable doubt that Padilla qualifies as an enemy combatant: according to Judge Michael Mukasey, the government need only provide "some evidence" to support such a designation. n227
The district court's decision was reversed by the Second Circuit Court of Appeals in December 2003. n228 The Second Circuit refused to defer to the executive branch's determination that Padilla was an "enemy combatant," insisting that the President has no power to declare a U.S. citizen an enemy combatant when the citizen was seized inside the U.S. n229 The reach of this decision is unclear however. First, the Second Circuit noted explicitly that its holding is not necessarily in conflict with the Fourth Circuit decision in Hamdi, since the Fourth Circuit "directly predicated its holdings on the undisputed fact that Hamdi was captured in a zone of active combat in Afghanistan." n230 This limits the holding in Padilla to U.S. citizens detained on U.S. soil.
Furthermore, the Second Circuit based its holding on the principle that inherent executive powers do not extend to the designation of U.S. citizens as enemy combatants when they are captured on U.S. soil. n231 The Second Circuit suggested, however, that Congress would have the power to authorize such presidential actions: "The Constitution envisions grave national emergencies and contemplates significant domestic abridgements of individual liberties during such times ... . [but] the Constitution lodges these powers with Congress, not the President." n232 Given congressional compliance in the war on terror - for example the passage of the USA PATRIOT Act in 2001 by a Senate vote of 99-1 - this holding does little to limit government prerogatives or safeguard constitutional rights.
The Supreme Court granted certiorari in Padilla, but ultimately declined to rule on the merits, instead reversing and remanding on the grounds that suit had been brought in the wrong jurisdiction. n233 Logically, if Hamdi (allegedly captured on a foreign battlefield) is entitled at least to an opportunity to contest his detention before a neutral decision maker, then Padilla (detained in Chicago) can surely be entitled to no less. The Court's unwillingness to rule on the merits in Padilla underscores the Court's queasiness about squarely confronting claims of executive power.
The various cases arising out of Guantanamo Bay raise similar questions about the willingness of the judiciary to meaningfully limit government powers in times of national security crisis. n234 In Al Odah v. United States, n235 the plaintiff challenged the constitutionality of the government's detention of hundreds of "enemy aliens" at a U.S. military base in Guantanamo Bay, Cuba. While acknowledging the possibility that the Guantanamo detainees might not in fact qualify as "enemy aliens," n236 the D.C. Circuit dismissed the constitutional challenge for lack of jurisdiction. The D.C. Circuit, holding that the Guantanamo military base is not on U.S. sovereign territory, n237 relied on Johnson v. Eisentrager to assert that "constitutional rights ... are not held by aliens outside the sovereign territory of the United States, regardless of whether they are enemy aliens." n238 The Supreme Court reversed the D.C. Circuit in Rasul v. Bush, but in a laconic decision that was strictly limited to the jurisdictional question, deferring all substantive questions about the status and treatment of the Guantanamo detainees. n239
Although rights advocates were relieved by Hamdi, Padilla, and Rasul, it remains unclear whether the Supreme Court will impose any effective limits on government actions in the war on terror. In these three major cases, the Court did little to constrain executive power in practice. In light of past precedents, it seems unwise to predict the dawning of a new era of Court scrutiny of government actions undertaken in the name of national security. Ominously, the Court has denied certiorari in a number of other cases that raise related issues about the limits on government power post-9/11, including Center for National Security Studies v. United States Department of Justice, n240 North Jersey Media Group, Inc. v. Ashcroft, n241 and M.K.B. v. Warden, n242 all of which involved challenges to lower court decisions deferring to government judgments about the need for secrecy in connection with post-9/11 detentions.
The general judicial willingness to defer to the government in these and other recent cases has been widely criticized, n243 and understandably so - the implication of these decisions is that all barriers between internal and external, international and domestic, war and peace, and crisis and normalcy have broken down, and even the most fundamental constitutional rights may be abrogated by the U.S. government upon a simple claim that the law of war is applicable, rather than ordinary criminal and constitutional law. Nonetheless, troubling though this is, it cannot credibly be claimed that the judicial deference to the government in these recent cases is either irrational or indefensible (as opposed to unwise). The main problem lies not in the government or the judiciary's application of the relevant legal principles. The main problem lies with the legal categories themselves.
IV. Implications: War Everywhere; Rights Nowhere
All the boundaries lying between the two worlds of war and non-war, of military and non-military, will be totally destroyed ... .
-Qiao Liang & Wang Xiangui, Unrestricted Warfare n244 So far, I have argued in this article that the changing nature of international security threats has caused the breakdown of most of the basic distinctions taken for granted by the laws of armed conflict and by that body of domestic U.S. jurisprudence that deals with national security issues. The changing nature of conflict and threat - -in particular the rise of global terrorism - -has eroded the customary boundaries that separate war and peace, civilians and combatants, lawful and unlawful belligerents, national security issues and domestic issues. As a result, it is becoming more and more difficult to know how to characterize, as a matter of law, the kinds of threats that increasingly face the U.S. and other nations, and it is therefore becoming harder and harder to determine the appropriate legal responses to these threats. The old categories have lost their analytical and moral underpinnings, but we have not yet found alternative paradigms to replace them.
The human rights, civil rights, and international law communities have not squarely confronted this problem. By and large, these communities have been inclined to argue that the Bush administration is wrongly construing and applying the law of armed conflict: e.g., that the government has wrongly categorized Yemen as part of the conflict zone; that it has wrongly characterized the Guantanamo detainees as unlawful combatants rather than prisoners of war; that it has wrongfully categorized the September 11 attacks as an armed conflict rather than a crime, and so on. This critique rests on plausible but formalistic readings of the applicable law. (And ironically, in other contexts, prior to September 11, these same communities have insisted on the importance of flexible and progressive readings of international law, particularly in regard to the law of armed conflict). n245
This formalist critique overlooks the fundamental underlying problem, however. For the most part, the problem is not that the Bush administration has misread or misapplied the law; in most cases, there is little basis for asserting this. n246 The deeper problem is that the Bush administration is applying a body of law that is anachronistic in its categories and assumptions to novel developments that were never even imagined by the drafters of the Geneva Conventions. These anachronistic categories and assumptions, applied to the struggle against terrorism, lead not implausibly to the conclusions the Bush administration has drawn. They do not compel the legal conclusions of the Bush administration, but neither do they offer a firm basis for regarding the administration's conclusions as unlawful.
Once again, of course, to say that the administration's interpretations of the laws of armed conflict are plausible is neither to support the policy decisions that underlie the choice of legal paradigms, nor to accept as inevitable or appropriate all of the consequences that flow from this choice. The human rights and civil rights law communities have been rightly dismayed by the consequences of the recent U.S. government actions that flow from the decision to conceptualize terrorism as "war" rather than "crime." In effect, the decision to make use of legal paradigms relating to armed conflict have brought us into the era of "war everywhere," and rather than a war to end all wars, we are now in a war without end. But because the traditional distinctions drawn by the law of armed conflict lose their analytic force when applied to the "war on terror," we are also in a war where, more or less, anything goes.
If the war knows no geographical or temporal boundaries, if no one deemed an enemy enjoys any of the protections envisioned by the law of armed conflict, and if the line between terrorist combatants and terrorist civilians makes no sense, then there are very few legal constraints on U.S. behavior abroad. U.S. forces can attack, capture, detain, and kill with impunity, subject, of course, to political and diplomatic constraints, but virtually unfettered by legal constraints. To be sure, it is true that even in earlier periods, there has been no effective international legal enforcement mechanism able to restrain U.S. behavior abroad in matters relating to national security. Nonetheless, the U.S. has to a significant degree internalized the law of armed conflict, and willingly accepted the constraints that flow from this body of law. n247 Now, however, the law of armed conflict appears to dictate very few constraints, either internal or external, and this has had a spillover effect on other areas of the law that do contain clear guidelines, such as prohibitions on torture.
The erosion of traditional boundaries has left U.S. behavior abroad alarmingly unconstrained, and it has also left U.S. government behavior relatively unconstrained domestically. Faced with the perpetual threat of terrorism, the U.S. government has every incentive to restrict civil liberties at home and to treat the home front as a war zone when doing so suits governmental purposes. As a result, the government claims the right to strip even U.S. citizens of all constitutional protections on the basis of unreviewable executive branch assertions that a citizen is an "enemy combatant." With courts so far adhering, for the most part, to traditional canons of judicial deference to government actions undertaken in the name of national security, n248 here, too, anything goes.
V. What Can Be Done? Human Rights Law as a Basis for Critique
I have argued here that the law of armed conflict is of little use in placing constraints on the war on terror. The law of armed conflict, which has long been criticized as based on unrealistic conceptions of conflict, has now been undermined almost completely by the rise of a new kind of armed conflict, which is one never envisioned by the drafters of the Geneva Conventions. As a result of the conundrums posed by the rise of global terrorism and similar asymmetrical threats, states such as the U.S. can technically comply with the law of armed conflict, while in fact evading most of the constraints that the law of armed conflict intended to place on states. Likewise, most of the rights and persons that the law of armed conflict intended to protect are no longer protected, since the U.S. can plausibly claim that in this war, which is everywhere and forever, no enemies are lawful combatants and few people are truly civilians. Domestically, the war on terror gives the U.S. government virtual carte blanche to restrict even the most seemingly entrenched constitutional rights with, for the most part, judicial acquiescence.
In the longer run, this problem can only be solved through a radical reconceptualization of national security law and the international law of armed conflict. Just as the international community has come together in unprecedented ways to create an international landmines treaty, a treaty creating an international criminal court, and to modify the laws of armed conflict in other ways (such as through the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict n249), so too the international community might be able to come together to reconsider the Geneva Conventions once more.
I do not expect this to happen soon, however; the current U.S. administration would almost certainly be opposed to any such enterprise, just as it has been opposed to the International Criminal Court and a range of other recent international legal innovations. What is more, if the U.S. nevertheless participated in such an enterprise, its interventions might not be for the best, from a rights perspective. In the shorter run, human rights and civil rights law advocates need to find some other alternative legal basis for critiquing U.S. actions, and simultaneously begin the project of reconceptualizing the law of war for a new era.
It would be facile to claim that there is any obvious solution to the dilemmas I have outlined in this Article, which will persist for the foreseeable future. Nevertheless, I think that international human rights law may offer some partial, interim solutions, and may ultimately point the way to reinventing the law of armed conflict.
Unlike the law of armed conflict, international human rights law applies to all persons at all times, regardless of nationality, status, or location, and for the most part, international human rights law applies in times of war as much as in times of peace. International human rights law offers basic guarantees of due process, equal protection, and humane treatment, and suggests an alternative framework for analyzing and critiquing U.S. government actions in the war on terrorism.
Core international human rights norms are laid out in the 1948 Universal Declaration of Human Rights. n250 Though it is not itself a legally binding treaty, many of the basic principles outlined in the Universal Declaration have since been accepted as norms of customary international law that are binding on all states except those that have persistently objected. n251 The U.S. and most other states are also party to the International Covenant on Civil and Political Rights (ICCPR), n252 which prohibits, among other things, arbitrary deprivation of life; discrimination on the basis of race, color, sex, language, religion, political opinion, national or social origin; the denial of equal protection of the law to any person; arbitrary interference with privacy, family, home or correspondence; arbitrary arrest or detention; denial of judicial review of detentions; and denial of compensation for unlawful detentions. n253
The ICCPR does permit states to derogate from some of the rights laid out in the treaty, but only "in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed." n254 Any measures taken by a state in derogating from obligations under the ICCPR must be limited to those measures "strictly required by the exigencies of the situation," and to those measures that "are not inconsistent with [a state's] other obligations under international law" and that "do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin." n255 Derogating states must formally declare their intention to derogate by "immediately informing the other States Parties to the present Covenant." n256
In any case, even in time of public emergency, the ICCPR prohibits derogation from articles 6, 7, 8.1, 8.2, 11, 15, 16 and 18. n257 These articles establish the right to life and the right to be free of arbitrary deprivation of life; the right to be free of torture or other cruel, inhuman and degrading treatment; the prohibition on slavery, the prohibition against ex post facto criminal laws, the right to be treated as a person before the law, and the right to freedom of thought, conscience and religion. n258
Some of the norms articulated in the Universal Declaration, the ICCPR, and other human rights law treaties such as the Genocide and Torture Conventions n259 are generally accepted as having risen to the status of jus cogens, "peremptory norms" of international law that are binding on all states at all times, and that states cannot barter away via treaty or other agreement. n260 Although there is some disagreement over precisely which international human rights norms have attained jus cogens status, most commentators (including the drafters of the Restatement (Third) of the Foreign Relations Law of the United States) agree that at a minimum, the norms against genocide; slavery; murder and "disappearance" of individuals; torture or other cruel, inhuman, or degrading treatment or punishment; prolonged arbitrary detention; and systematic racial discrimination are peremptory in nature. n261 These norms are binding at all times, whether in emergency situations or not, and whether in armed conflicts or not.
Thus, the U.N. Committee on Civil and Political Rights (which was established by the ICCPR) has observed that despite the derogations permitted in times of emergency by the ICCPR, "states parties may in no circumstances invoke [the derogation clauses] of the Covenant as justification for acting in violation of ... peremptory norms of international law, for instance ... through arbitrary deprivations of liberty or by deviating from fundamental principles of fair trial, including the presumption of innocence." n262 The Committee has also noted that implicitly, "in order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party's decision to derogate from the Covenant." n263
At a time when neither domestic jurisprudence nor the law of armed conflict appears to offer a principled and coherent basis for critiquing U.S. government infringements on rights resulting from the war on terror, these norms of international human rights law may offer a useful alternate framework. n264 They provide an alternative legal yardstick against which we can measure the appropriateness of the indefinite detentions at Guantanamo, the effectively indefinite detentions of U.S. citizens such as Jose Padilla and Yaser Hamdi, and the similar detentions of numerous immigrants in the United States. n265
Thus, although the Geneva Conventions do not clearly preclude the indefinite detention of those who the U.S. has declared "unlawful combatants," the indefinite and arguably arbitrary nature of the detentions, n266 and the lack of any mechanism for judicial review, renders these detentions likely violations of jus cogens norms. Similarly, many of the provisions of the USA PATRIOT Act and many executive branch actions would appear to run afoul of ICCPR provisions.
It should be immediately acknowledged that international human rights law is no panacea in the present situation. First of all, although human rights law may be of great use in evaluating the lawfulness of detentions, international human rights law contains few norms that would help determine whether and when the use of military force is justified. n267 While the law of armed conflict does not supplant international human rights law in times of conflict, neither can international human rights law displace core principles of the U.N. Charter or the laws of armed conflict.
Thus, international human rights law does not provide a satisfying answer to the question of whether the U.S. predator drone missile attack on a car full of suspected al Qaeda operatives in Yemen was justified. n268 Human rights law forbids murder and the arbitrary deprivation of life, but the law of armed conflict permits the killing of enemy combatants, including surprise attacks made at moments when the enemy combatants are not themselves directly engaged in acts of violence. Perhaps the most that can be said about a case such as this is that given the ambiguity of whether the laws of armed conflict were applicable, the uncertainty about the identities of some of the car's occupants, and the possible existence of alternative means of stopping the car and apprehending its occupants, human rights norms suggest that the U.S. should bear the burden (politically and diplomatically, if not legally) of making a convincing case that the killings were neither arbitrary nor unnecessary.
A second problem with using international human rights law to address U.S. actions in the war on terror is that no international tribunal exists that can determine whether the U.S. has violated human rights law and can enforce judgments against the U.S. n269 At the same time, the domestic status of international human rights law is unclear. While the Supreme Court has historically recognized that international law is part of U.S. law, a combination of limiting doctrines (including the "last in time" rule, and the presumption that treaties are not self-executing) and judicial ignorance of international law often means that courts will not enforce international human rights law, especially against the U.S. government. n270
These problems are real, but I think that there is nevertheless value in using international human rights law as a framework for evaluating U.S. government actions in the war on terror. International human rights law cannot fill every conceptual gap that results from efforts to apply the laws of armed conflict to threats such as terrorism, but something is still better than nothing. And although U.S. courts have mostly declined to enforce international human rights law directly against the U.S. government, human rights norms can and should still inflect the policy discourse. The law of armed conflict is similarly not directly enforceable in U.S. courts or in any international tribunals with effective jurisdiction over the U.S., but the U.S. government nonetheless acknowledges the political importance of justifying U.S. actions as consistent with the law of armed conflict.
U.S. courts have indicated a growing willingness to consider international human rights law, at least as one of many relevant factors in determining the justifiability of government actions. Thus, in Atkins v. Virginia, the U.S. Supreme Court declared the execution of mentally retarded offenders to be a violation of the Eighth Amendment's prohibition on cruel and unusual punishment. n271 The Court noted that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." n272 The Court based this observation mainly on an amicus curiae brief submitted by the European Union, which argued that in t