War Rules and Law Enforcement Rules in Terror War

The following article is from Human Rights Watch looking at how the use of law has sometimes been replaced by war rules when it suits leaders. You can see the original report at http://hrw.org/wr2k4/9.htm1.

Drawing the Line: War Rules and Law Enforcement Rules in the Fight against Terrorism
By Kenneth Roth
Human Rights Watch, World Report 2004
January 2004

Where are the proper boundaries of what the Bush administration calls its war on terrorism? The recent wars against the Afghan and Iraqi governments were classic armed conflicts, with organized military forces facing each other. But the administration says its war on terrorism is global, extending far beyond these typical battlefields. On September 29, 2001, U.S. President George W. Bush said, “Our war on terror will be much broader than the battlefields and beachheads of the past. The war will be fought wherever terrorists hide, or run, or plan.”

This language stretches the meaning of the word “war.” If Washington means “war” metaphorically, as when it speaks of the war on drugs, the rhetoric would be uncontroversial - a mere hortatory device designed to rally support to an important cause. But the administration seems to think of the war on terrorism quite literally - as a real war - and that has worrying implications.

The rules that bind governments are much looser during wartime than in times of peace. The Bush administration has used war rhetoric to give itself the extraordinary powers enjoyed by a wartime government to detain or even kill suspects without trial. Enticing as such enhanced power might be in the face of the unpredictable and often lethal threat posed by terrorism, it threatens basic due process rights and the essential liberty such rights protect.

War and peace rules

By literalizing its “war” on terror, the Bush administration has broken down the distinction between what is permissible in times of peace and what can be condoned during a war. In peacetime, governments are bound by strict rules of law enforcement. Police can use lethal force only if necessary to meet an imminent threat of death or serious bodily injury. Once a suspect is detained, he or she must be charged and tried. These requirements - what one can call “law enforcement rules” - are codified in international human rights law.

In times of war, law enforcement rules are supplemented by the more permissive rules of armed conflict, or international humanitarian law. Under these “war rules,” an enemy combatant can be shot without warning (unless he is incapacitated, in custody, or trying to surrender), regardless of any imminent threat. If a combatant is captured, he or she can be held in custody until the end of the conflict, without being charged or tried.

These two sets of rules have been well developed over the years, by both tradition and detailed international conventions. There is little law, however, to explain when one set of rules should apply instead of the other. Usually the existence of an armed conflict is obvious, especially when two governments are involved. But in other circumstances, such as the Bush administration’s announced war on terrorism as it extends beyond Afghanistan and Iraq, it is less clear.

For example, the Geneva Conventions - the principal codification of war rules - apply to “armed conflict” but do not define the term. However, the International Committee of the Red Cross (ICRC), the official custodian of the conventions, does provide some guidance in its commentary, in distinguishing between civil war and mere riots or disturbances.

One test suggested by the ICRC for determining whether wartime or peacetime rules apply is to examine the intensity of hostilities. The Bush administration, for example, claims that al-Qaeda is at war with the United States because of the magnitude of the September 11, 2001 attacks as well as the pattern of al-Qaeda’s alleged bombings including of the U.S. embassies in Kenya and Tanzania, the U.S.S. Cole in Yemen, and residential compounds in Saudi Arabia. Each of these attacks was certainly a serious crime warranting prosecution. But technically speaking, was the administration right to say that they add up to war? Is al-Qaeda a ruthless criminal enterprise or a military operation? The ICRC’s commentary does not provide a clear answer.

In addition to the intensity of hostilities, the ICRC suggests considering such factors as the regularity of armed clashes and the degree to which opposing forces are organized. Whether a conflict is politically motivated also seems to play an unacknowledged role in deciding whether it is “war” or not. Thus, organized crime or drug trafficking, though methodical and bloody, are generally understood to present problems of law enforcement, whereas armed rebellions, once sufficiently organized and violent, are usually seen as “wars.”

The problem with these guidelines, however, is that they were written to address domestic conflicts rather than global terrorism. Thus, they do not make clear whether al-Qaeda should be considered an organized criminal operation (which would trigger law-enforcement rules) or a rebellion (which would trigger war rules). The case is close enough that the debate of competing metaphors does not yield a conclusive answer. Clarification of the law would be useful.

Even in the case of war, another factor in deciding whether law-enforcement rules should apply is the nature of a given suspect’s involvement. War rules treat as combatants only those who are taking an active part in hostilities. Typically, that includes members of an armed force who have not laid down their arms as well as others who are directing an attack, fighting or approaching a battle, or defending a position. Under these rules, even civilians who pick up arms and start fighting can be considered combatants and treated accordingly. But this definition is difficult to apply to terrorism, where roles and activities are clandestine, and a person’s relationship to specific violent acts is often unclear.

Given this confusion, a more productive approach is to consider the policy consequences of applying wartime or law enforcement rules. Unfortunately, the Bush administration seems to have ignored such concerns.

Padilla and al-Marri

Consider, for example, the cases of Jose Padilla and Ali Saleh Kahlah al-Marri. Federal officials arrested Padilla, a U.S. citizen, in May 2002 when he arrived from Pakistan at Chicago’s O’Hare Airport, allegedly to scout out targets for a radiological or “dirty” bomb. As for al-Marri, a student from Qatar, he was arrested in December 2001 at his home in Peoria, Illinois, for allegedly being a “sleeper,” an inactive accomplice who could be activated to help others launch terrorist attacks. If these allegations are true, Padilla and al-Marri should certainly be prosecuted. Instead, after initially holding each man on other grounds, President Bush declared them both to be “enemy combatants” and claimed the right to hold them without charge or trial until the end of the war against terrorism - which, of course, may never come.

But should Padilla and al-Marri, even if they have actually done what the U.S. government claims, really be considered warriors? Aren’t they more like ordinary criminals? A simple thought experiment shows how dangerous are the implications of treating them as combatants. The Bush administration has asserted that the two men planned to wage war against the United States and therefore can be considered de facto soldiers. But if that is the case, then under war rules, the two men could have been shot on sight, regardless of any immediate danger they posed. Padilla could have been gunned down as he stepped off his plane at O’Hare, al-Marri as he left his home in Peoria. That, after all, is what it means to be a combatant in time of war.

Most people, I suspect, would be deeply troubled by that result. The Bush administration has not alleged that either suspect was anywhere near to carrying out his alleged terrorist plan. Neither man, therefore, posed an imminent threat of the sort that might justify the preventive use of lethal force under law enforcement rules. With a sophisticated legal system available to hear their cases, killing these men would have seemed gratuitous and wrong. Of course, the Bush administration has not proposed summarily killing them; it plans to detain them indefinitely. But if Padilla and al-Marri are not enemy combatants for the purpose of being shot, they should not be enemy combatants for the purpose of being detained, either. The one conclusion necessarily implies the other.

Even if they were appropriately treated as combatants, Padilla’s and al-Marri’s lives might still have been spared under the doctrine of military necessity, which precludes using lethal force when an enemy combatant can be neutralized through lesser means. But from the bombing of urban bridges in northern Serbia during the Kosovo war to the slaughter on the “Highway of Death” during the 1991 Gulf War, the U.S. government has been at best inconsistent in respecting the doctrine of military necessity. Other governments’ records are even worse. That terrorist suspects who pose no immediate danger might only sometimes be shot without warning should still trouble us and lead us to question the appropriateness of their classification as combatants in the first place.


A similar classification problem, though with an arguably different result, arose in the case of Qaed Salim Sinan al-Harethi. Al-Harethi, who Washington alleges was a senior al-Qaeda official, was killed by a drone-fired missile in November 2002 while driving in a remote tribal area of Yemen. Five of his companions also died in the attack, which was carried out by the CIA. The Bush administration apparently considered al-Harethi an enemy combatant for his alleged involvement in the October 2000 U.S.S. Cole bombing, in which seventeen sailors died.

In this instance, the case for applying war rules was stronger than with Padilla or al-Marri, although the Bush administration never bothered to spell it out. Al-Harethi’s mere participation in the 2000 attack on the Cole would not have made him a combatant in 2002, since in the interim he could have withdrawn from al-Qaeda; war rules permit attacking only current combatants, not past ones. And if al-Harethi were a civilian, not a member of an enemy armed force, he could not be attacked unless he were actively engaged in hostilities at the time. But the administration alleged that al-Harethi was a “top bin Laden operative in Yemen,” implying that he was in the process of preparing further attacks. If true, this would have made the use of war rules against him more appropriate. And unlike Padilla and al-Marri, arresting al-Harethi may not have been an option. The Yemeni government has little control over the tribal area where al-Harethi was killed; eighteen Yemeni soldiers had reportedly died in an earlier attempt to arrest him. However, even in this arguably appropriate use of war rules, the Bush administration offered no public justification, apparently unwilling to acknowledge even implicitly any legal constraints on its use of lethal force against alleged terrorists.

Bosnia and Malawi

In other cases outside the United States, the Bush administration’s use of war rules has had far less justification. For example, in October 2001, Washington sought the surrender of six Algerian men in Bosnia. At first, the U.S. government followed law enforcement rules and secured the men’s arrest. But then, after a three-month investigation, Bosnia's Supreme Court ordered the suspects released for lack of evidence. Instead of providing additional evidence, however, Washington switched to war rules. It pressured the Bosnian government to hand the men over anyway and whisked them out of the country - not to trial, but to indefinite detention at the U.S. naval base at Guantanamo Bay. If the men had indeed been enemy combatants, a trial would have been unnecessary, but there is something troubling about the administration’s resort to war rules simply because it did not like the result of following law enforcement rules.

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

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

A Misuse of War Rules?

Is this method of fighting terrorism away from a traditional battlefield an appropriate use of war rules? At least insofar as the target can be shown to be actively involved in ongoing terrorist activity amounting to armed conflict, war rules might be acceptable when there is no reasonable criminal justice option, as in tribal areas of Yemen. But there is something troubling, even dangerous, about using war rules when law enforcement rules reasonably could have been followed.

Errors, common enough in ordinary criminal investigations, are all the more likely when the government relies on the murky intelligence that drives many terrorist investigations. The secrecy of terrorist investigations, with little opportunity for public scrutiny, only compounds the problem. If law enforcement rules are used, a mistaken arrest can be rectified at a public trial. But if war rules apply, the government is never obliged to prove a suspect’s guilt. Instead, a supposed terrorist can be held for however long it takes to win the “war” against terrorism - potentially for life - with relatively little public oversight. And the consequences of error are even graver if the supposed combatant is killed, as was al-Harethi. Such mistakes are an inevitable hazard of the traditional battlefield, where quick life-and-death decis