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Flip Flops?: The Conflict with Al Qaeda Is (Not) a War

Following the September 11 attacks in 2001, President George W. Bush justified several military actions on the ground that the United States was now in an armed conflict with Al Qaeda. During the twelve years since, many legal experts and opponents of US actions have argued that aspects of the US response violate international law. But on closer inspection, those arguments have been inconsistent with regard to one fundamental legal question: whether the US is, as a matter of law, in an armed conflict. In fact, a pattern has emerged over the years: opposition to different actions has alternated between arguing that the US is—or is not—involved in an armed conflict with Al Qaeda. It sometimes seems as though the preferred argument depends on how that threshold question—whether we’re in a war—affects the interests at stake. In this post, I track the different turns in these arguments over time, and call for a new way forward.

One caveat: The point here is not to show that any individual has flip-flopped. (Indeed, I refer to my own position in one of the examples below.)  Rather, the point is that the center of expert opinion in reaction to US counter-terrorism policy has vacillated on this key legal question.

Let’s examine the pattern over the past dozen years.

Turn 1. Not a War: Militarization  

In the weeks following September 11th, many experts argued that the United States could not be, as a matter of international law, in an armed conflict with Al Qaeda.

What was at stake: One set of implications involved the policy consequences—and effect on public debate—following such a legal classification. Accepting the war paradigm would lead to a highly militarized response to the events of September 11 and expansive executive and governmental power.  Accordingly, arguing that the situation did not constitute an armed conflict could potentially restrain the war machine internationally and excesses of state power at home.

Example: Professor Alain Pellet wrote an essay entitled, “No This is not War!” He asserted that the idea that the US could be in an armed conflict was “legally false;” he also argued, explicitly on policy grounds, that the war model could lead to a “spiral of hate” and violence, “create more ‘martyrs’” and “cost thousands of lives of those who are already victims of the Taliban.” Professor Antonio Cassese wrote: “It is obvious that in this case ‘war’ is a misnomer. War is an armed conflict between two or more states.” And he worried that calling the Al Qaeda attacks a war would lead to the belief that “the necessary response exacts reliance on all resources and energies, as if in a state of war.”

Turn 2. Is a War: Combatant status-determinations 

Once US forces began apprehending detainees in Afghanistan and elsewhere, many argued that the US was in a standard armed conflict that included the Taliban and Al Qaeda.

What was at stake: Debate centered on whether the United States had an obligation under Article 5 of the POW Convention to establish an independent tribunal to determine the status of individuals detained in Afghanistan and elsewhere (e.g., Bosnia). The Geneva Conventions apply only if an armed conflict exists.

Example: In an ASIL Insight, John Cerone wrote, “It is arguable that the law of international armed conflict should also govern relations between the Unites States and Al-Qaeda,” and he suggested that Article 5 applied to members of Al Qaeda.

Turn 3: Not a War: Indefinite military detention

Once long-term and indefinite military detention of individuals became a reality, many experts argued that the United States could not be in an armed conflict with Al Qaeda.

What was at stake: The Bush administration invoked the war model to argue that the laws of war permit the United States to hold combatants in military detention “until the cessation of hostilities.” In response, many experts argued that the United States was not in an armed conflict.

Examples: In 2009, in an amicus brief submitted to the Supreme Court in Al-Marri v. Spagone, a group of law of war experts argued that an Al Qaeda member could not be detained in the United States under domestic law because the situation did not amount to an armed conflict.

Turn 4. Not a War: Military commission jurisdiction

Following a Presidential Military Order establishing military commissions to try those responsible for September 11, many experts argued that such commissions were unlawful because the United States was not in an armed conflict with Al Qaeda.

What was at stake: Due to the particular construction of US domestic law, individuals could be tried before a military commission only for violations of the law of armed conflict. Arguing that the attacks on September 11 did not take place in an armed conflict could potentially stop military commissions in their tracks.

Example: In 2002, Professor Jordan Paust argued that “al Qaeda attacks on the United States on September 11th (before the international armed conflict in Afghanistan began) … cannot be prosecuted as war crimes because the United States and al Qaeda cannot be ‘at war’ under international law.”

Turn 5: Is a War: Fair Trial Rights and Torture

Once military commissions got underway, many experts argued that such trials were unlawful because the law of armed conflict applied. This argument was connected to another one. Many of the same experts (myself included) also took the position that torture of detainees was prohibited by the laws of war.

What was at stake: Common Article 3 of the Geneva Conventions applies to armed conflicts between state and nonstate actors. It requires that any trials meet international standards of fairness and that all detainees be treated humanely. If Common Article 3 applies, the commissions could be held unlawful under the Geneva Conventions, and CIA interrogation practices would be invalid. As a matter of customary international law, the rule reflected in Article 75 of the 1977 Additional Protocol could also potentially invalidate the trials and inhumane treatment of detainees. Common Article 3 and Article 75 of the Protocol, however, require the existence of an armed conflict.

Example: In 2005, in an amicus brief submitted to the Supreme Court in Hamdan v. Rumsfeld, a group of experts argued that the trial of an alleged Al Qaeda member before a military commission violated the law of armed conflict. (I made a similar argument in an amicus brief submitted to the Court, along with Anne-Marie Slaughter and Just Security’s Derek Jinks. We argued that Common Article 3 applied.) When the Supreme Court invalidated the commissions on the basis that Common Article 3 applied to the US armed conflict with Al Qaeda, former Ambassador David Scheffer celebrated it as “a good day for international law, and a good day for American jurisprudence.” At the same time, Just Security’s Marty Lederman quickly recognized and celebrated the implications of the ruling for bringing an end to the CIA interrogation regime.

Turn 6: Not a War: Extrajudicial killings

Once attention became focused on the use of lethal force (e.g., targeted killings), many experts argued that the United States was not in an armed conflict with Al Qaeda.

What was at stake: The law of armed conflict is significantly more permissive than international human rights law in regulating the conditions under which individuals can be killed. Accordingly, many of the targeted killings and signature strikes carried out by the US arguably would be illegal if they did not take place in an armed conflict.

Example: Professor Mary Ellen O’Connell has repeatedly argued that the legality of the US lethal programs depended on this distinction, and she has argued that the United States could not be in an armed conflict with Al Qaeda.

Turn 7: Is a War: The Future?

After the President’s NDU speech on May 23 and the 2014 drawdown of forces in Afghanistan, it is likely that the Administration will argue that there is no longer an armed conflict in different areas or with different groups, but that the law of self-defense fully and independently justifies some lethal force (e.g., targeted killings) in various parts of the world. They will also maintain, like all the presidential administrations over the past three decades, that international human rights law either does not apply or does not impose any additional restrictions in important situations. There will be strong pressures for experts to argue that the US is still in an armed conflict as long as it continues to pursue such military actions—and that jus in bello should thus regulate the exercise of military violence as a matter of law.

* * *

There are at least three implications to draw from this exercise. First, implicit in my analysis is a call for greater consistency — if the rule of law and respect for the international legal regime is to be maintained at a high level. Second, this analysis shows several specific ways in which considering the situation with Al Qaeda an armed conflict affords greater humanitarian protections (e.g., in status-based determinations, fair trial rights, and targeting in self-defense). Third, is a forecast of our legal future. The next turn may occur when the US government – this Administration or one that follows – declares it is no longer in an armed conflict with Al Qaeda, and those who seek greater humanitarian protections will have good reasons to argue the opposite. Let me put the point another way: those who argue against the existence of an armed conflict could, if successful, be left in a worse position, not better – this is a moment to be careful what you wish for.

What might have been a better path over the past twelve years and, more importantly, the way forward? At the very least: a consistent position that one legal situation (war) or the other (not a war) exists; and recognition that such a position will maximize humanitarian values in some cases and sacrifice it in others.

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About the Author

is co-editor-in-chief of Just Security. Ryan is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. Follow him on Twitter (@rgoodlaw).