THE END OF THE "WAR" (AND OF WAR AS WE KNOW IT):
Deploying A Law Enforcement Model In The Fight Against Terrorism

By PETER SPIRO
Thursday, Jan. 31, 2002

President Bush claimed in his State of the Union address earlier this week that "our war against terror is only beginning." In fact, this war is over -- except, perhaps, in a metaphorical sense.

Military operations are winding down in Afghanistan, and normalcy is returning on the domestic front. Leaving aside the horrific civilian casualties on September 11 itself, this conflict closely parallels our experience with such other recent deployments abroad as the Kosovo campaign. It was quick and neat, with few American casualties. The conflict demanded no direct sacrifice at home; far from the economic deprivations and military service requirements of real wars, in this one civilians were asked only to deploy their purchasing power.

Now that the engagement in Afghanistan is over, its aftermath is better addressed through a law enforcement model than under the model President Bush has suggested, of a continuing war that operates for an indefinite period of time, and is not ended even by the cessation of hostilities. The events of September 11 have demonstrated the obsolescence of old models of conflict premised on hostilities among states, from both a domestic and international perspective. Under domestic law, that means rejecting extraordinary procedures, such as the proposed military tribunals, and pursuing terrorists as we pursue criminals, within normal constitutional constraints.

Under international law, that means shifting attention away from regimes governing traditional warfare, in particular the Geneva conventions. As the relevant benchmark, rather, we should now turn to human rights instruments governing punishment and the criminal justice process. These rules, in conventions to which the United States is a party, significantly constrain the detention and prosecution of criminal defendants. A resistant Bush Administration is finding it hard to defy such international norms. Indeed, perhaps the greatest significance of September 11 is the way in which international law is coming home to roost, and the boundaries between domestic and international law have broken down.

The Resilient Constitution: Little Serious Curtailment of Civil Liberties

Early signs in the wake of the attacks all pointed to a genuine war footing and accompanying diminishment of civil liberties. An outcry from civil libertarians followed. But in the end, for the most part the Constitution has not faced a particularly grave challenge, and rights have not been seriously curtailed.

Consider the treatment of aliens, whose rights are first to go at the altar of national security. Early proposals from the Justice Department would have dramatically increased already expansive enforcement discretion in the immigration context. As part of a proposed Mobilization Against Terrorism Act, an extraordinary "certification" procedure would have empowered the Justice Department to remove aliens (resident or not) deemed to be terrorists on the basis of secret information, subject to no form of judicial review.

But that proposal was taken off the table early on, in the face of stiff congressional opposition. Congress also balked at granting legislative authority for the indefinite detention of aliens not otherwise charged with crimes or violations of the immigration law. As a result, the primary legislation enacted in response to the attacks the USA PATRIOT Act allows the Attorney General to detain an alien suspected of terrorist activity for only up to seven days without immigration or criminal charge.

Moreover, even aliens against whom removal proceedings have been instituted on terrorism grounds can be detained beyond six months only if the continued detention is supported by a finding that release of the alien would threaten national security or the safety of individuals. (This requirement was composed with a clear eye to the Supreme Court's recent decision regarding the rights of aliens in Zadvydas v. Davis.)

On the enforcement side, it is true that hundreds of aliens have faced drawn-out detention, sometimes without access to lawyers or relatives, on technical criminal or immigration law violations. But these detentions have been widely denounced, on the Hill and among policy elites. Moreover, they do not represent a change in the law; they were authorized by laws antedating September 11. Many caught in the early sweeps have been released, and the detentions do not appear to represent a durable enforcement strategy; rather, they seem likely to have been a one-time emergency response. On other tracks, proposals to limit immigration -- for instance, with respect to foreign students -- have gone nowhere.

All in all, given the enormity of the September 11 attacks, and compared to such wartime episodes as the internment of Japanese-Americans during World War II, the scope of anti-alien initiatives has been remarkably limited.

Military Tribunals -- Will They Be Used?

As for the military tribunals -- which, by terms of President Bush's executive order, apply only to non-citizens -- it is not clear that they will ever be deployed.

With the Administration's decision to pursue criminal prosecution in federal district court against Zacarias Moussaoui, the extraordinary tribunal procedures were in effect taken off the table for defendants who are aliens present in the United States. Given that Moussaoui -- claimed to be a September 11 co-conspirator and the planned "fifth hijacker" on Flight 93, which crashed in Pennsylvania -- is not being tried before a tribunal, it is unlikely that the government will place any suspects apprehended in the United States for lesser roles before tribunals either. Other countries will not extradite suspects without assurances that prosecution will be undertaken in the ordinary court system.

The die has yet to be so clearly rolled with respect to the Taliban and Al Qaeda detainees being held in Guantanamo. But here, too, domestic and international opposition to the tribunals may well result in their abandonment. If so, the stillbirth of the tribunal option as much as represents a concession that their use is constitutionally questionable.

Finally, if military tribunals aren't put into action in the wake of September 11, we are unlikely to see them resurrected with respect to future conflicts. It is hard to imagine more dramatic pressure and momentum for the tribunal option than was afforded by the events of September 11. Yet tribunals have yet to be used.

A Changing Model of Conflict: State-Versus-State War Rules No Longer Apply

Meanwhile, on the international side, attention is now focused on the application of the Geneva Convention Relative to the Treatment of Prisoners in Wartime. The question is whether Taliban and Al Qaeda detainees qualify for prisoner of war status thereunder. One reason the status matters is that non-POW's -- "unlawful combatants," to use the Administration's term -- can be punished for activities that otherwise would be exonerated by a wartime context. (Another reason is that POW status brings with it greater protections and rights.)

But finding that the Geneva convention not to apply won't let U.S. authorities off the international law hook in their treatment and disposition of the detainees. It simply shifts the terms of the debate.

Enter the Covenant

The next round of debate will grapple with the International Covenant on Civil and Political Rights, to which the U.S. became a party in 1992. Among other provisions, the Covenant prohibits arbitrary detention and cruel, inhumane or degrading treatment of detainees. It also requires a presumption of innocence, and trial within a reasonable time. And it affords defendants a right against self-incrimination, a right to examine witnesses against them, and a right to seek a writ of habeas corpus.

Indefinite detention without charge would clearly violate Covenant constraints, especially in the absence of genuine emergency conditions. So would some elements of the procedures the Administration has contemplated for the military tribunals.

In short, rejecting the wartime legal paradigm for dealing with detainees will not leave the U.S. with a legal carte blanche. Rather, it will force the Administration to face a law enforcement model that is subject to another, equally demanding set of international norms.

The New Force of International Law

Of course, the Bush Administration has hardly had international law in mind in formulating its post-conflict strategy. Bush Administration officials have long shown a contempt for international legal regimes. But they've been blindsided by the ferocity of protests from European and other international actors, including leading human rights organizations, who have been putting considerable pressure on U.S. authorities to live up to its international obligations.

Donald Rumsfeld may complain that "it's amazing the insight that parliamentarians can gain from 5,000 miles away." But he, and the Administration, need to listen, for those parliamentarians and other international actors control something the U.S. needs -- namely, cooperation in continuing anti-terrorist efforts.

Whether or not the proposed military tribunals comport with domestic constitutional norms, their use would spark broad international protests. That, ultimately, is why the tribunal option is probably a dead one.

Advocacy groups have been pressing the U.S. on other fronts, most notably with respect to the death penalty, but that has produced only glancing blows on inner-circle foreign policy decisionmaking. With this episode international law has elbowed its way into the Situation Room, where it is likely to stay, welcome or not.


Peter Spiro, a former State Department lawyer and NSC staff member, is a professor at Hofstra Law School.

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