Civil Liberties and Intl Law

COUNTERTERRORISM, CIVIL LIBERTIES &

INTERNATIONAL LAW

GOVT 298

Spring 2015

FIGHTING TERRORISM:IS IT A “WAR”?

• Problems with “war on terrorism” concept• Blurs the line of what constitutes a battle zone • Invokes law of war instead of criminal law• President uses construct to claim legal authority to kill

without warning and detain without trial persons who are physically distant from any actual zone of armed conflict• Targeted killings unrelated to armed conflict represent

a significant departure from international law

ENEMY COMBATANTS VS. CRIMINALS

• The case for treating terrorist suspects as “enemy combatants”• Criminal law is too weak a weapon, because it is too strict in its

requirements• Cannot use circumstantial evidence, criminal proof requires near

confidence, which is difficult to obtain • Defendants cannot be arrested or sent to trial unless eyewitnesses

or co-conspirators are willing to testify against them publicly• Items that were seized without search warrant might not be

admissible• Law of armed conflict allows measures like preventive internment• Criminal law is meant to work as a deterrent, but in the fight against

terrorism deterrence does not work• Half-measures don’t work because the stakes are too high• Foreign tribunals that would be needed for using criminal law are often

corrupt

ENEMY COMBATANTS VS. CRIMINALS

• The case against treating terrorist suspects as “enemy combatants”• War against terrorism is open-ended and global, allowing the

government to unilaterally design terrorism suspects as “enemy combatants” anywhere, and summarily detain or kill them• Evidence used against enemy combatants would often never be

admitted in a court of law or establish guilt beyond a reasonable doubt this is weakening an essential protection against government overreach• If the government can unilaterally declare a global war without

an actual battlefield, there is nothing from stopping it from declaring a war on other problems – ex. Drug trafficking (which kills more Americans than terrorism) and summarily detain or kill suspected drug dealers

POINTS FOR DEBATE & DISCUSSION

• After watching the film, Rendition, and reading the article by O'Connel, I am forced to question the overall efficacy and continued support for "war on terror". This idea is an abstract construction by the United States government and supported by the media in order to promote the idea of revenge for the attacks of 9/11. Isn't this type of targeted killing and detainment of suspected terrorists pointless? Terror groups can simply find new recruits and leadership if the support is that strong. Shouldn't we be focused on undermining the organization, rather than removing key individuals?

• Does, as Roth suggests, the war on terror require a divorce from criminal law? Is it constitutional though to ignore "cumbersome standards of proof" when trying a suspected terrorist because all the evidence gathered is circumstantial?

RULE OF LAW PARADIGM VS. INTELLIGENCE PARADIGM

• The rationale for separating law enforcement and intelligence is based on the idea of protecting against potential abuses of surveillance powers• Governments need some criminal predicate for investigation in

order to help protect citizens from being targeted based on dissent, religion or ethnicity• Foreign intelligence gathering is seen as separate• Danger of “mission creep” – efforts become ever more intrusive

and turn against innocent civilians


• Recognizing the difference between law enforcement and intelligence objectives is particularly important for terrorism investigations

• Bureaucratic rules and incentives should be structured so as to discourage investigations based on political and religious activities and instead need to focus on criminal activity• In order to do this, should require agencies to focus on criminal

activity, which encompasses terrorist plotting and financing, rather than authorizing and intelligence approach that absorbs all available information about thousands of individuals in the hope of finding something useful

• Problems with the shift to an intelligence paradigm• Patriot Act asked Congress to repeal fundamental requirement

that secret and extraordinary procedures be used only when the primary purpose is to collect foreign intelligence• Fewer safeguards against abuse because there is no post

surveillance check on the legality of initial warrant or how surveillance was conducted• Patriot Act increases domestic intelligence authority of CIA• FBI is no longer required to investigate crime before collecting

information not it is authorized to go into mosques and churches without identifying themselves, and collect information on Americans worshipping there


• Problems with the shift to an intelligence paradigm• Efforts to increase government data-mining capabilities are also rooted in an

intelligence paradigm• Intelligence paradigm tries to locate dangerous individuals by starting

with suspicion-less investigation of large groups of people• Law enforcement approach instead follows leads from information the

government already possesses about actual terrorists • It views entire communities rather than specific individuals as potential

suspects• It is unlikely to yield useful information, while being very costly (which

increases risk of missing the real terrorists)• It will fundamentally alter the relationship between Americans and their

government



• If the US uses an increasing amount of surveillance on its citizens and those around the world, might that only add to the reasons why terrorist organizations come after this country and its leaders? In that sense, will surveillance only add to the problem?

• "Some Americans can take comfort in the fact that most terrorist suspects to date do not look like them" (Wedgwood 2004, p. 129). What does a terrorist suspect look like?

• Since half the activities of intelligence agencies is kept secret on a national security concerns, no one know if they are grossly violating civil liberties until way after the fact. Is there a way to get these agencies to regulate themselves in an effective manner? Or have some independent yet clear intelligence reviewer? Or set up a internal whistleblowing culture?

FIGHTING TERRORISM & INTERNATIONAL LAW

• Departures from international law• U.S. has no legal basis for targeted killings in Yemen,

Pakistan and Somalia, because it has not been involved in hostilities and it does not have legal basis for using attacks (jus ad bellum)• International law also affirms right to life• In peace time, state may only take human life when

“absolutely necessary in the defense of persons from unlawful violence”

Arguments used to justify targeted killings:• The United States remains in a global “armed conflict against al Qaida, the Taliban,

and associated forces” that began on 9/11.• Problems

• It is not really a war against terrorists anywhere, but rather against terrorists in states experiencing instability (drones in U.K. or Germany would not be authorized)• Legal justification is not based on persons being fighters in armed conflict

but rather on persons being present in states with weak governments there is no international legal right to exercise military force on this basis

• Presidents and legal advisers do not have the authority to posit what is and is not armed conflict; there are clear standards in international law• A situation is armed conflict is there is at a minimum two or more

organized armed groups engaged in fighting of some intensity • Targeted killings in Pakistan, Somalia and Yemen are separate from any

armed conflict hostilities


Arguments used to justify targeted killings:• Drone attacks are an exercise of the U.S.’s “inherent right of self-defense”

against an imminent threat.• Problems

• Right of self-defense may only be exercised against a significant attack and must be aimed at a state responsible for the armed attach

• Attacking non-state actor groups on the territory of a state is attacking the state as much as the group

• U.S. has not suffered significant armed attack from Pakistan, Yemen and Somalia, let alone an attack for which any of these states is responsible

• UN Charter does not permit the use of force in self-defense to pre-empt a future attack; the attack must be under way


Arguments used to justify targeted killings:• Drone attacks are lawful counter-terrorism measures in states that are

“unable or unwilling” to counter terrorism.• Problem: there is no such justification in international law

• Pakistan and Yemen have consented to attacks.• Problem

• Consent is erratic, and it is unclear that the governments actually can give consent for the use of force against suspects on their territory, since it would represent a form of excessive force

• The attacks are precise.• But precision has little to do with the law on resort to force in the first

place


“The Washburn Consensus”

• The phrase “Global War on Terrorism” should no longer be used in the sense of an on-going “war” or “armed conflict” being waged against “terrorism.” Nor should it serve as either the legal or security policy basis for the range of counter- and antiterrorism measures taken by the Administration in addressing the very real and present challenges faced by the United States and other nations in addressing terrorism.

• The Administration should announce that it is taking immediate steps to close the interrogation and detention facility at Guantanamo Bay, Cuba, with a view to removing all remaining detainees by July 1, 2009.

• The Military Commissions Act of 2006 should be repealed in its entirety, and all activities currently being conducted under the Military Commission process constituted by the Act should be terminated.

• Persons accused of committing acts of terrorism, war crimes or other serious human rights violations should be tried, as appropriate, before Article III courts or, as provided for in the Uniform Code of Military Justice, by courts-martial or military commission.

ADHERING TO INTERNATIONAL LAW

“The Washburn Consensus”

• The Detainee Treatment Act of 2005 should be amended to ensure the application of one standard of treatment and interrogation to all detainees held in U.S. custody or control.

• The single standard for the treatment and interrogation of all detainees held in U.S. custody or control should be that reflected in Army Field Manual 2-22.3, Human Intelligence Collector Operations.

• Any presidential findings, statements, Executive Orders, or other forms of authorization related to detainee treatment and interrogation that sanction or authorize methods inconsistent with Field Manual 2-22.3 should be withdrawn.

• A comprehensive investigation of alleged post-9/11 U.S.-held detainee abuse should be undertaken by an independent, expert commission with the goal of producing a 2009 report detailing both the findings and recommendations of this commission.

ADHERING TO INTERNATIONAL LAW


• The O'Connell piece take a far too idealistic and limiting approach to Presidential power and the authority to conduct foreign policy in a swift manner. Wouldn't a more constructive critique serve to better meet the ideal conditions in which O'Connell and Ruth hope for? Sure Guantanamo remains a problem, but how do we actually close it without threatening our own national security? Recently we spoke of denial/defensive deterrence. How do we combat realities on the ground while adhering to these laws and values and at the same time jockeying for influence on the geopolitical stage?

• In the case of drone attacks not permitted by The International Covenant on Civil and Political Rights, is our security more important than the safeguarding of suspected terrorist rights? Do those who could possibly perpetrate attacks against the United States deserve similar rights? How could 9/11 have changed the public opinion on this?


• Do you feel the Obama administration's stance on targeted killings, torture, and terrorism has changed since O'Connell's article was initially written three years ago? Has the administration made any advances beyond proposal 6 on complying with international law? Do you agree with the 8 principles set forth by the Washburn panel? By complying with international law, are we able to as effectively deal with terrorists? One could argue that in many of the principles delineated by the panel actually have the result of reducing terrorism (ceasing targeted killings and torture tactics). Do we really lose anything in complying with international law?

• Wedgwood and Roth point out that the US was unable to "compel Pakistani and Saudi intelligence agencies to stop subsidizing the Taliban and al Qaeda." As our allies that receive millions of dollars in international aid are we not indirectly funding terrorism? Why are we allied with nations that undermine our security and are not in line with our enemies?

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