Academic journal article Duke Journal of Comparative & International Law

Terrorism and Changes to the Laws of War

Academic journal article Duke Journal of Comparative & International Law

Terrorism and Changes to the Laws of War

Article excerpt

Thanks, Scott, and it's nice to be back at Duke again. I was here a number of years ago to open the new Center for International and Comparative Law and again last year. It is great to be back, and I thank the organizers for putting together this panel.

I am going to begin my remarks by placing this discussion in a policy context since I am the person most recently out of the government. First, I will address what has changed in the last year under the Obama administration and what has not changed. Then I will focus within that policy context, more specifically, on the issues for this panel regarding use of force, including where and against whom force may be used.

It is appropriate that we are speaking today, because exactly one year ago President Obama issued his famous three executive orders that made many changes from the Bush administration's policies. (1) The three orders were: one, to close Guantanamo within one year and review every detainee's status in order to determine what ought to be done with them; (2) two, to end the CIA interrogation program and to conduct a review of what sort of interrogation program there ought to be; (3) and three, perhaps the most significant and difficult to implement, to review all detainee laws and policies to determine what the appropriate legal framework should be. (4)

I applauded those executive orders when they were issued and still think that they were good decisions. Several of us on these panels worked quite hard during the Bush administration to achieve the results in those executive orders, and it was disappointing that the Bush administration could not resolve some of these same issues sooner. So, as a policy matter, I generally agreed with the orders and believed that they did reflect some change.

That said, since that day a year ago, relatively little has happened to implement those three executive orders. First, obviously Guantanamo has not closed, and it looks like it will not close in 2010 because Congress has blocked the President's ability to move detainees to the United States. Second, the CIA program was officially shut down, but it had really ended years ago. Moreover, as you may have seen in the press just a couple of days ago, the director of national intelligence is already bickering with the director of the FBI about who ought to conduct interrogations and whether the intelligence community should be allowed to do more robust interrogations.

Finally, the third executive order created a task force that was to review detention policy overall, but the task force missed its six-month deadline and extended the deadline to a year. The task force should have reported by now, but has not done so in large part because the issues are so difficult.

So those are the things that have changed. What I would like to focus on now is what has not changed. That is the remarkable thing: that there has been, in fact, more continuity than change between the Bush and Obama administrations.

The main point is that the legal framework that the Obama administration is applying continues to be a law of war framework. The President dropped the label of "a Global War on Terror," and I think this was a good idea because this label did more harm than good. But he is still pursuing, as a legal matter, a global war on al Qaeda and, most significantly, he is applying the laws of war for detention and for targeting. In his famous Archives speech, he emphasized that the United States is at war with al Qaeda, (5) and under some pressure from Republicans recently, has had to repeatedly say, "We are at war. We are at war against Al Qaeda...." (6) What that means is that he continues to rely on the laws of war as the legal basis for our military and our CIA to kill alleged terrorists around the world. He uses these laws to detain people indefinitely, without trial, and to assert the right to detain people even though they have not been charged with any crime. …

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