COUNTERTERRORISM,

CIVIL LIBERTIES &

INTERNATIONAL LAW
GOVT 298
Spring 2015

FIGHTING TERRORISM:
IS IT A WAR?
Problems with war on terrorism concept
Blurs the line of what constitutes a battle zone
Invokes law of war instead of criminal law
President uses construct to claim legal authority to kill
without warning and detain without trial persons who
are physically distant from any actual zone of armed
conflict
Targeted killings unrelated to armed conflict represent
a significant departure from international law

ENEMY COMBATANTS VS.

CRIMINALS
The case for treating terrorist suspects as enemy combatants
Criminal law is too weak a weapon, because it is too strict in its
requirements
Cannot use circumstantial evidence, criminal proof requires near
confidence, which is difficult to obtain
Defendants cannot be arrested or sent to trial unless eyewitnesses
or co-conspirators are willing to testify against them publicly
Items that were seized without search warrant might not be
admissible
Law of armed conflict allows measures like preventive internment
Criminal law is meant to work as a deterrent, but in the fight against
terrorism deterrence does not work
Half-measures dont work because the stakes are too high

ENEMY COMBATANTS VS.

CRIMINALS
The case against treating terrorist suspects as enemy
combatants
War against terrorism is open-ended and global, allowing the
government to unilaterally design terrorism suspects as enemy
combatants anywhere, and summarily detain or kill them
Evidence used against enemy combatants would often never be
admitted in a court of law or establish guilt beyond a reasonable
doubt this is weakening an essential protection against
government overreach
If the government can unilaterally declare a global war without
an actual battlefield, there is nothing from stopping it from
declaring a war on other problems ex. Drug trafficking (which
kills more Americans than terrorism) and summarily detain or

POINTS FOR DEBATE &

DISCUSSION
After watching the film, Rendition, and reading the article by O'Connel, I
am forced to question the overall efficacy and continued support for "war
on terror". This idea is an abstract construction by the United States
government and supported by the media in order to promote the idea of
revenge for the attacks of 9/11. Isn't this type of targeted killing and
detainment of suspected terrorists pointless? Terror groups can simply
find new recruits and leadership if the support is that strong. Shouldn't we
be focused on undermining the organization, rather than removing key
individuals?
Does, as Roth suggests, the war on terror require a divorce from criminal
law? Is it constitutional though to ignore "cumbersome standards of
proof" when trying a suspected terrorist because all the evidence
gathered is circumstantial?

RULE OF LAW PARADIGM VS.

INTELLIGENCE PARADIGM
The rationale for separating law enforcement and intelligence is
based on the idea of protecting against potential abuses of
surveillance powers
Governments need some criminal predicate for investigation in
order to help protect citizens from being targeted based on
dissent, religion or ethnicity
Foreign intelligence gathering is seen as separate
Danger of mission creep efforts become ever more intrusive
and turn against innocent civilians

RULE OF LAW PARADIGM VS.

INTELLIGENCE PARADIGM
Recognizing the difference between law enforcement and
intelligence objectives is particularly important for terrorism
investigations
Bureaucratic rules and incentives should be structured so as to
discourage investigations based on political and religious activities
and instead need to focus on criminal activity
In order to do this, should require agencies to focus on criminal
activity, which encompasses terrorist plotting and financing,
rather than authorizing and intelligence approach that absorbs
all available information about thousands of individuals in the
hope of finding something useful

RULE OF LAW PARADIGM VS.

INTELLIGENCE PARADIGM
Problems with the shift to an intelligence paradigm
Patriot Act asked Congress to repeal fundamental requirement
that secret and extraordinary procedures be used only when the
primary purpose is to collect foreign intelligence
Fewer safeguards against abuse because there is no post
surveillance check on the legality of initial warrant or how
surveillance was conducted
Patriot Act increases domestic intelligence authority of CIA
FBI is no longer required to investigate crime before collecting
information not it is authorized to go into mosques and
churches without identifying themselves, and collect information
on Americans worshipping there

RULE OF LAW PARADIGM VS.

INTELLIGENCE PARADIGM
Problems with the shift to an intelligence paradigm
Efforts to increase government data-mining capabilities are also rooted in an
intelligence paradigm
Intelligence paradigm tries to locate dangerous individuals by starting
with suspicion-less investigation of large groups of people
Law enforcement approach instead follows leads from information the
government already possesses about actual terrorists
It views entire communities rather than specific individuals as potential
suspects
It is unlikely to yield useful information, while being very costly (which
increases risk of missing the real terrorists)
It will fundamentally alter the relationship between Americans and their
government

POINTS FOR DEBATE &

DISCUSSION
If the US uses an increasing amount of surveillance on its citizens and
those around the world, might that only add to the reasons why terrorist
organizations come after this country and its leaders? In that sense, will
surveillance only add to the problem?
"Some Americans can take comfort in the fact that most terrorist suspects
to date do not look like them" (Wedgwood 2004, p. 129). What does a
terrorist suspect look like?
Since half the activities of intelligence agencies is kept secret on a
national security concerns, no one know if they are grossly violating civil
liberties until way after the fact. Is there a way to get these agencies to
regulate themselves in an effective manner? Or have some independent
yet clear intelligence reviewer? Or set up a internal whistleblowing
culture?

FIGHTING TERRORISM &

INTERNATIONAL LAW
Departures from international law
U.S. has no legal basis for targeted killings in Yemen,
Pakistan and Somalia, because it has not been involved
in hostilities and it does not have legal basis for using
attacks (jus ad bellum)
International law also affirms right to life
In peace time, state may only take human life when
absolutely necessary in the defense of persons
from unlawful violence

FIGHTING TERRORISM &

INTERNATIONAL LAW
Arguments used to justify targeted killings:
The United States remains in a global armed conflict against al Qaida, the Taliban, and
associated forces that began on 9/11.
Problems
It is not really a war against terrorists anywhere, but rather against terrorists in
states experiencing instability (drones in U.K. or Germany would not be authorized)
Legal justification is not based on persons being fighters in armed conflict but
rather on persons being present in states with weak governments there is no
international legal right to exercise military force on this basis
Presidents and legal advisers do not have the authority to posit what is and is not
armed conflict; there are clear standards in international law
A situation is armed conflict is there is at a minimum two or more organized
armed groups engaged in fighting of some intensity
Targeted killings in Pakistan, Somalia and Yemen are separate from any armed
conflict hostilities

FIGHTING TERRORISM &

INTERNATIONAL LAW
Arguments used to justify targeted killings:
Drone attacks are an exercise of the U.S.s inherent right of self-defense
against an imminent threat.
Problems
Right of self-defense may only be exercised against a significant attack
and must be aimed at a state responsible for the armed attach
Attacking non-state actor groups on the territory of a state is attacking
the state as much as the group
U.S. has not suffered significant armed attack from Pakistan, Yemen and
Somalia, let alone an attack for which any of these states is responsible
UN Charter does not permit the use of force in self-defense to pre-empt a
future attack; the attack must be under way

FIGHTING TERRORISM &

INTERNATIONAL LAW
Arguments used to justify targeted killings:
Drone attacks are lawful counter-terrorism measures in states that are
unable or unwilling to counter terrorism.
Problem: there is no such justification in international law
Pakistan and Yemen have consented to attacks.
Problem
Consent is erratic, and it is unclear that the governments actually
can give consent for the use of force against suspects on their
territory, since it would represent a form of excessive force
The attacks are precise.
But precision has little to do with the law on resort to force in the first
place

ADHERING TO INTERNATIONAL
LAW
The Washburn Consensus
The phrase Global War on Terrorism should no longer be used in the sense of an ongoing war or armed conflict being waged against terrorism. Nor should it serve
as either the legal or security policy basis for the range of counter- and antiterrorism
measures taken by the Administration in addressing the very real and present
challenges faced by the United States and other nations in addressing terrorism.
The Administration should announce that it is taking immediate steps to close the
interrogation and detention facility at Guantanamo Bay, Cuba, with a view to
removing all remaining detainees by July 1, 2009.
The Military Commissions Act of 2006 should be repealed in its entirety, and all
activities currently being conducted under the Military Commission process
constituted by the Act should be terminated.
Persons accused of committing acts of terrorism, war crimes or other serious human
rights violations should be tried, as appropriate, before Article III courts or, as
provided for in the Uniform Code of Military Justice, by courts-martial or military
commission.

ADHERING TO INTERNATIONAL
LAW
The Washburn Consensus
The Detainee Treatment Act of 2005 should be amended to ensure the
application of one standard of treatment and interrogation to all detainees
held in U.S. custody or control.
The single standard for the treatment and interrogation of all detainees held
in U.S. custody or control should be that reflected in Army Field Manual 222.3, Human Intelligence Collector Operations.
Any presidential findings, statements, Executive Orders, or other forms of
authorization related to detainee treatment and interrogation that sanction or
authorize methods inconsistent with Field Manual 2-22.3 should be withdrawn.
A comprehensive investigation of alleged post-9/11 U.S.-held detainee abuse
should be undertaken by an independent, expert commission with the goal of
producing a 2009 report detailing both the findings and recommendations of
this commission.

POINTS FOR DEBATE &

DISCUSSION
The O'Connell piece take a far too idealistic and limiting approach to
Presidential power and the authority to conduct foreign policy in a swift
manner. Wouldn't a more constructive critique serve to better meet the
ideal conditions in which O'Connell and Ruth hope for? Sure Guantanamo
remains a problem, but how do we actually close it without threatening
our own national security? Recently we spoke of denial/defensive
deterrence. How do we combat realities on the ground while adhering to
these laws and values and at the same time jockeying for influence on
the geopolitical stage?
In the case of drone attacks not permitted by The International Covenant
on Civil and Political Rights, is our security more important than the
safeguarding of suspected terrorist rights? Do those who could possibly
perpetrate attacks against the United States deserve similar rights? How
could 9/11 have changed the public opinion on this?

POINTS FOR DEBATE &

DISCUSSION
Do you feel the Obama administration's stance on targeted killings,
torture, and terrorism has changed since O'Connell's article was initially
written three years ago? Has the administration made any advances
beyond proposal 6 on complying with international law? Do you agree
with the 8 principles set forth by the Washburn panel? By complying with
international law, are we able to as effectively deal with terrorists? One
could argue that in many of the principles delineated by the panel
actually have the result of reducing terrorism (ceasing targeted killings
and torture tactics). Do we really lose anything in complying with
international law?
Wedgwood and Roth point out that the US was unable to"compel
Pakistani and Saudi intelligence agencies to stop subsidizing the Taliban
and al Qaeda." As our allies that receive millions of dollars in international
aid are we not indirectly funding terrorism? Why are we allied with
nations that undermine our security and are not in line with our enemies?