THE WAR ON TERRORISM began with the atrocities of 11 September 2001. Approximately 3,000 Americans, as well as citizens of other countries, tragically died that day at the Pentagon, the World Trade Center, and in a field in Pennsylvania. The world now knows that the perpetrator ofthat attack was Al-Qaeda, an insidious ideologically and religiously motivated network of Islamic terrorists intent on destroying our Nation and our way of life. Despite our Herculean global effort over the last six years to detect, disrupt, degrade, and destroy this decentralized network of non-state, multinational terrorists, there is no end in sight to the fight against it. Even if the war in Iraq were to end soon, experts unanimously agree that the conflict against Al-Qaeda will continue unabated around the world for years to come.
Unquestionably, one of the most challenging issues confronting the United States since 11 September has been how-or even if-the laws of war apply to the War on Terrorism. The laws of war, also known as the law of armed conflict or international humanitarian law, are codified in multilateral treaties. They reflect ancient traditions of humanity, military chivalry, and internationally agreed-upon customary norms of behavior for belligerents. Current and former military leaders, federal judges, government officials, scholars, international lawyers, journalists, human rights advocates, and others are struggling to understand, adapt, and articulate the appropriate legal framework for fighting the War on Terrorism. Several reasons underlie the ongoing confusion and debate.
First, the United States historically addressed terrorism as a criminal justice matter. It responded to it under a law-enforcement paradigm that gave suspected terrorists significant due process and an abundance of procedural and substantive rights. Armed conflicts, on the other hand, are governed by a completely different legal regime with different rights, duties, and obligations. The convergence of these two legal frameworks in the context of an ongoing conflict has unquestionably led to uncertainty and frustration. For example, we currently use war-fighting powers to detain and interrogate without the restriction of law enforcement rules, then use law enforcementtype institutions to punish while disregarding or reinterpreting the laws of war. Choosing to use the authority of one paradigm, when advantageous, then using the other paradigm to avoid the restrictions of that choice, has created ambiguity.
A second reason for the confusion and debate is that government officials, in an effort to increase our security in the face of a genuine terrorist threat, have marginalized or ignored key principles of the laws of war. In other words, they did or are doing the wrong things for arguably the right reasons. The overriding justification for much of what has been done has simply been to save American lives from the insidious threat of Al-Qaeda and its surrogates.
In making such arguments, U.S. officials have characterized the Geneva Conventions as "quaint," denounced them as vague or ambiguous, and attempted to redefine or reinterpret their provisions. They have simply ignored the fact that the Geneva Conventions, the most ratified treaties in the history of the world, have withstood the test of time and are universally accepted by the civilized world. Similarly, senior U.S. officials have attempted to define "torture" as equivalent in intensity to the pain accompanying such serious physical injury as organ failure, impairment of bodily functions, or death.2 U.S. officials also have been accused of engaging in extraordinary rendition; that is, sending prisoners to other countries so they can be tortured or subjected to cruel, inhumane, or degrading treatment. And lastly, on 13 November 2001 the president established military commissions as the forum of choice to try suspected terrorists.3 From the outset, military commissions …