Advanced Topics in the Law of War

1. Advanced Topics in the Law of War The Law of War in the 21st Century: Terrorism and Technology

2. Agenda • Terrorism: Law of War vs. Law Enforcement? • GWOT as armed conflict? • GWOT as law enforcement? • GWOT as hybrid? • Technology • Can LOAC keep up with Moore’s Law? The next 10 years will be quite different from the last 10. Bin Laden’s death is one of those catalytic moments that seize mass attention, as people sense a turning point of some kind. But what kind? Leaders who seize the chance can regain precious strategic initiative, to redefine interests and offer a fresh narrative. ~ Philip Zelikow, FT, yesterday

3. Law of War v. Law Enforcement What’s the Right Paradigm? • Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney. But the government’s legal authority to do so is far from clear.” Enemy Combatant or Criminal? ~ Atty Gen Holder Letter to Sen McConnell, 3 Feb 2010

4. GWOT as Armed Conflict “The U.S., its allies, and the civilized world are at war today against an enemy which, while undeclared, is as well organized and as ruthless as any that a modern state has confronted . . .” ~ London Times, 12 Sep 01

5. “Prior to 9/11, many had viewed terrorism primarily as a crime to be prosecuted… On 9/11, it was obvious that the law enforcement approach to terrorism had failed.” “The war would be different from any America had fought in the past… The terrorists had made our homefront a battleground. Putting America on a war footing was one of the most important decisions of my presidency.”

6. “Contrary to the assertion of President Bush, the United States simply cannot be at war with bin Laden and al Qaeda as such, nor would it be in the overall interest of the United States for the status of war to apply merely to conflicts between the United States and al Qaeda.” ~ Jordan Paust, 28 Yale J. Int’l L. 325 (2003) “The Taliban and al-Qaeda represent a different dimension of crime, a higher, more dangerous version of crime, a kind of super-crime incorporating some of the characteristics of warfare. They are criminals who are also enemies.” ~ George Fletcher, The Indefinable Concept of Terrorism (Nov 2006) “The magnitude of 9/11 and the danger of more terrorist attacks, had driven home the inadequacy of treating terrorism as a law enforcement matter. . . . No police force is organized and equipped to stop a campaign of sophisticated, internationally supported terrorist attacks.” ~ Doug Feith, War and Decision (2008)

7. Conflict with Al-Qaeda?

8. Conflict with Al-Qaeda? • “Pursuant to my authority as Commander in Chief and Chief Executive of the United States . . . I hereby determine . . . that none of the provisions of Geneva apply to our conflict with al-Qaeda in Afghanistan or anywhere else in the world.” ~ Pres Bush, 2002

9. “Legal Policy for a Twilight War” • Policy decision: treat GWOT as an armed conflict • Implementation of the policy • Lawyers at the center • Can vs. should • Making the policy case better (selling to allies etc.)

10. Criticism • The United States…has adopted a war paradigm in the expectation that this provides a legal justification for setting aside criminal law and human rights law safeguards, to be replaced by the extraordinary powers that are supposedly conferred under international humanitarian law…[C]onflating acts of terrorism with acts of war, is legally flawed and sets a dangerous precedent…Where terrorist acts trigger or occur during an armed conflict, such acts may well constitute war crimes, and they are governed by international humanitarian law…The US’s war paradigm has created fundamental problems. Among the most serious is that the US has applied war rules to persons not involved in situations of armed conflict, and in genuine situations of warfare, it has distorted, selectively applied and ignored otherwise binding rules… ~ International Commission of Jurists, Report of the Eminent Jurists Panel on Terrorism, Counterterrorism, and Human rights, Executive Summary (Geneva, 2009)

11. GWOT as Law Enforcement Initiative “In the days following December 25 – including during a meeting with the President and other senior members of his national security team on January 5 – high-level discussions ensued within the Administration in which the possibility of detaining Mr. Abdulmutallab under the law of war was explicitly discussed. No agency supported the use of law of war detention for Abdulmutallab, and no agency has since advised the Department of Justice that an alternative course of action should have been, or should now be, pursued. . . .” ~ Atty Gen Holder Letter to Sen McConnell, 3 Feb 2010

12. “[T]he shoe bomber was not a burglar or bank robber; he was a foot soldier in al-Qaeda’s war against America. . . By giving this terrorist the right to remain silent, we deprived ourselves of the opportunity to collect vital intelligence on his plan and his handlers.” ~ Pres Bush “Imagine what would have happened if the Obama administration had been running things immediately following 9/11. After their "arrest," we would have read KSM and al-Libi their Miranda rights, provided them legal counsel, sent them to the U.S. for detention, and granted them all the rights provided a U.S. citizen in criminal proceedings. If this had happened, the CIA could not have built the intelligence mosaic that pinpointed bin Laden's location.” ~ John Yoo, Wall Street Journal, Today

13. “You are not an enemy combatant. You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier gives you far too much stature. Whether it is the officers of government who do it or your attorney who does it, or that happens to be your view, you are a terrorist. And we do not negotiate with terrorists. We do not sign documents with terrorists. We hunt them down one by one and bring them to justice. So war talk is way out of line in this court. You are a big fellow. But you are not that big. You're no warrior. I know warriors. You are a terrorist. A species of criminal guilty of multiple attempted murders.” ~Judge William Young, sentencing of Richard Reid, Jan 2003

14. GWOT as Hybrid In each case, my decision as to whether to proceed in federal courts or military commissions was based on a protocol that the Departments of Justice and Defense developed and that was announced in July. Because many cases could be prosecuted in either federal courts or military commissions, that protocol sets forth a number of factors – including the nature of the offense, the location in which the offense occurred, the identity of the victims, and the manner in which the case was investigated – that must be considered. In consultation with the Secretary of Defense, I looked at all the relevant factors and made case by case decisions for each detainee. ~ AG Holder, 13 Nov 09

15. “In my judgment, this new paradigm [the war against terrorism] renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip, athletic uniforms, and scientific instruments.” ~ Atty Gen Alberto Gonzalez, Jan 2002 “The war against terrorism ushers in a new paradigm . . . Our nation recognizes that this new paradigm . . . requires new thinking in the law of war.” ~ President George Bush, 7 Feb 02 War is a challenge to law, and the law must adjust. It must recognize that the old wineskins of international law, domestic criminal procedure, or other prior frameworks are ill-suited to the bitter wine of this new warfare. We can no longer afford diffidence. This war has placed us not just at, but already past the leading edge of a new and frightening paradigm, one that demands new rules be written. Falling back on the comfort of prior practices supplies only illusory comfort. ~ Al Bihani v. Obama (D.C. Circ, 2010), Brown, concurring

16. Criticisms • “…states neither need, nor should be allowed, to pick and choose different legal frameworks concerning the conduct of hostilities or law enforcement, depending on which gives them more room to maneuver.” ~ Jelena Pejic, Terrorist Acts and Groups: A Role for International Law (quoted in Solis, pg 167)

17. U.S. Military Practice DODD 2311.01E, 9 May 06 • 4.1. Members of the DoD Components comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations.

18. Concluding Observations • The “Global War on Terrorism” is not a war in the traditional sense • Neither the law of war nor a pure law enforcement approach is a good legal fit for the state’s response to modern terrorism • Policy challenge: developing legal policy for the “GWOT” that is both effective and legitimate • Legal challenge: updating international law to effectively meet the threat of modern terrorism

19. Technology Technology is like "magic shoes" on the feet of mankind, and after the spring has been wound tightly by commercial interests, people can only dance along with the shoes, whirling rapidly in time to the beat that they set. ~ Unrestricted Warfare, Chinese Colonels

20. TOV MSSMP Desert Hawk Packbot Global Hawk Remote Transport System

23. Wrap-up / Future of the LOW Future of the Law of WarGlobal Trends 2025 • We prepared Global Trends 2025: A Transformed World to stimulate strategic thinking about the future by identifying key trends, the factors that drive them, where they seem to be headed, and how they might interact. The study as a whole is more a description of the factors likely to shape events than a prediction of what will actually happen. ~ DNI / National Intel Council

24. Wrap-up / Future of the LOW Global Trends 2025Executive Summary • Key Trends: • “Unrecognizable” international system in 2025 • Rise of non-state actors • Terrorist and criminal networks • Specific-issue NGOs • Proliferation of political identities • Rise of BRIC (Brazil, Russia, India, China) • “State Capitalism” model • American power loss relative to others (but still most powerful) HANDOUT 2025 GLOBAL LANDSCAPE

25. Wrap-up / Future of the LOW Global Trends 2025Chapter 5: Growing Potential for Conflict • Key Trends: • Potential for conflict (intra and inter-state) greater than last forecast • Global war on terror will continue • Risk Areas: Afghanistan, Pakistan, Yemen, Nigeria, Palestine • Al-Qaeda terror wave may wane, however • Shrinking arc of instability • Nuclear Iran and consequent arms race? • Unified Korea likely by 2025 • “MENA”: Strong economics but high risk of turmoil • “Two-tier Muslim world”? • Maritime insecurity and piracy

26. Wrap-up / Future of the LOW Global Trends 2025Chapter 5: Growing Potential for Conflict • Key Trends: • The Changing Character of Conflict (p. 72) • Increasing importance of information • Precision weaponry, ISR capabilities, enhanced C2, AI / robotics • Evolution of irregular warfare capabilities • Improved assymmetrical warfare by “have-nots” • Prominence of non-military aspects of warfare • Cyber, economic, resource, psychological, lawfare etc. • Expansion and escalation of conflicts beyond the traditional battlefield • World becoming smaller; lines becoming less clear

27. Wrap-up / Future of the LOW Global Trends 2025 • “. . . those states most susceptible to conflict are in a great arc of instability stretching from Sub-Saharan Africa through North Africa, into the Middle East, the Balkans, the Caucasus, and South and Central Asia, and parts of Southeast Asia.” ~ pg 61

28. Wrap-up / Future of the LOW TM Barnett and “the non-integrating gap”

29. Wrap-up / Future of the LOW Global Trends 2025 • “[W]e cannot rule out a 19th century-like scenario of arms races, territorial expansion, and military rivalries.” ~ Executive Summary

30. Wrap-up / Future of the LOW Kaplan: New Balance of Power • Kaplan observed that this is the world that is being created while the U.S. is focused on messy counterinsurgencies in Iraq and Afghanistan, even if new powers are quietly rising up. The total result of the Iraq War, to him, is that it has fast-forwarded the arrival of the Asian century. . . . Asian militaries are becoming real civilian-military postindustrial complexes.

31. Wrap-up / Future of the LOW Kaplan: New Balance of Power • If Afghanistan has taught that it might not be wise to go it alone, notwithstanding the quick initial results one can achieve that way, Kaplan said; and if Iraq has shown the U.S. the crude, low-tech end of asymmetry with IEDs and other devices, then the Chinese competition is going to show the U.S. the very sophisticated, subtle, high-tech end of asymmetry in the naval and other realms. The Chinese are not competing with the U.S. across the board; they are concentrating on three things: (1) submarines, (2) missiles that can hit moving targets at sea, and (3) the ability to knock out satellites in space, all of which put together constitute an asymmetric threat against the U.S. navy.

32. Wrap-up / Future of the LOW Kaplan: New Balance of Power • The last war, the one in which we’re presently engaged, is never a good indicator of wars of the future, Kaplan said. The 1870 Franco-Prussian War gave no indication of what World War I would be like, Korea gave no indication of what Vietnam would be like, WWII gave no indication of Korea, and Gulf War I gave no indication of the current Iraq War. So the U.S. may master the arts of land-based counterinsurgency just as that recedes over the horizon and is irrelevant for future challenges and conflicts.

33. Wrap-up / Future of the LOW Predictions? • BY 2025, WILL WE HAVE: • Unified Korea? • Palestinian State / Mideast Peace? • Nuclear Iran? • Nuclear weapon detonated in a major city? • Major cyber attack? • UN Security Council Reform? • New primary energy source? • Significant US presence in Iraq / Afghanistan? • Overhaul of the Law of War?

34. Wrap-up / Future of the LOW Concluding Observation “[I]f international law is, in some ways, at the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law.”  ~Sir Hersh Lauterpacht