Reactions to the Xmas Bomber

1. The Laws of War and the "War on Terror"
2. The Law's Obligation to be Relevant
3. War on the Rule of Law

1. The Laws of War and the "War on Terror"

The first decade of the new millennium ended with an echo of how it had begun - with a terrorist attack on an airliner over American airspace. The reaction was swift, strong, and diverse. It ranged from increased security measures, including singling out specific countries and nationalities for increased scrutiny, breathless inquiries into how the intelligence and security systems failed, through to increased focus on the activities of groups affiliated with Al Qaeda in Yemen. Some recognition that there may have been an overreaction, at least on the part of the press, has finally started to creep into themedia analysis.

Perhaps the most disturbing aspect is the return to the "war on terror". There were shrill cries from the right, led by the never-fading Dick Cheney, that Obama was "pretending we are not at war". The 23 year old Nigerian would-be bomber should be dealt with as an unlawful enemy combatant under the laws of war! It was an outrage, they argued, indict him under the criminal law, allowing him access to counsel and Miranda rights. Speed was of the essence in "interrogating" him to for intelligence.

Bush famously claimed that the United States was engaged in a War on Terror. Notwithstanding the mocking retorts that one cannot make war on a part of speech, and the denial of most of the claim's fundamental premises in a string of Supreme Court cases, it persisted throughout Bush's administration. Obama quickly dispensed with it. But with this new attempted attack, it has again raised its hoary head, and even Obama felt compelled to conceded that "we are at war".

The problem, of course, is that war is essentially a legal institution. A determination that one is at war triggers the operation of a new set of international legal rights and obligations, which displace the normal operation of laws in peacetime. These are what provide immunity from prosecution for all the killing and destruction of legitimate targets. And it is indeed to these laws that the right wing now harken when they argue that the Christmas day bomber should be treated as a "combatant" detainee - with the suspension of the normal constitutional and domestic criminal law rights, and indeed the international human rights, that he would be afforded as a criminal suspect under the peace-time operation of laws.

Yet war as a legal construct has very specific criteria, which have developed over the course of a millennium. They are pretty well established. Sporadic acts of terrorism by persons loosely affiliated with a non-state organization, heinous though they may be, do not give rise to a war, nor are they acts of war. The initial invasion of Afghanistan, as a state from which attacks on the U.S. were launched, was a war, but the wider effort against Al Qaeda is not.

Which is just as well. Consider the ramifications of recognizing such a "war on terror", with the entire globe as the theatre of war. Civilians who are directly involved in hostilities are legitimate targets under the laws of war. If this is a war, and the globe is the battlefield, then U.S. forces could legitimately kill on sight those suspected of being "terrorists" or affiliated with terrorists, or even sufficiently involved in supporting the activities of terrorists. Forget the issue of Miranda rights and lawyers versus military interrogation, the line between war and peace, between normal life and combat, would be eradicated. And the entire raison d'etre of the laws of war is to maintain the distinction between civilian and combatant, between war and peace.

But the entire exercise is moot. The supreme fallacy is that the conservative right are baying for the application of the laws of war, when according to those very laws of war, this is not a war and those laws do not apply. In essence, the right is not arguing for the application of the laws of war, but for the suspension of all law, to simply do "whatever it takes", no matter how arbitrary, to "keep America safer". In so doing, they risk destroying the fundamental values, and in particular the rule of law, upon which the nation was built. - Gamma.

2. Law's Obligation to be Relevant

The truth is that outside of the orange-scented mist that hovers over the groves of academe, there are no such things as the laws of war. It is a hopeful gloss on a collection of outdated customs and practices offered by well-meaning academics. As much as we may wish the situation were different, it is the Wild West out there. There are no laws and no body enforcing them. Nor is it helpful to argue that they are binding because they somehow bubble up from our collective morality.

Ask yourself this, what other functional and relevant system of law was formed, as you write, 1000 years ago? The answer: none. We expect real legal systems to be modern and relevant and pragmatic; we expect them to evolve and change and to reform themselves when faced with changes in practice and culture and technology. Even the Catholic Church has modernized.

More to the point, however, is that, even if the legal system you described did exist and was relevant, its failure to address the complications around Al Qaeda and the Underpants Bomber reveals a fundamental disconnect with reality and, ultimately, creates a greater mischief.

The disconnect is stark. I accept, as you point out, that any system of international law governing the conduct of conflict between nations and other entities should distinguish between nation-on-nation and nation-on-non-nation action. But it is equally important that such a system recognize the distinction between non-state terrorism and domestic criminal justice issues.

There are real and obdurate challenges to investigating and combating organizations based in foreign jurisdictions that use non-citizens to attack domestic targets. It is not at all unreasonable for people to expect that such entities and individuals would be dealt with differently than domestic actors. Such differences could include interrogation, lower standards of proof and a separate system of inquiry into culpability and penal sanction.

“Aha!” you will no doubt write. “This is the slippery slope that produced the John Yoo memos and today’s announcement that 50 detainees in Guantanamo will have neither trial nor release.” And this brings us to the greater mischief that your approach produces – it creates a gray area that states fill with all sorts of savagery and foolishness. The price of relying on ossified and useless rules that are disconnected from reality includes extra-judicial assassinations, covert military action, and informal set of rules for catching terrorists, hidden prisons, torture, and all manner of black ops and dark arts. These actions erode the rule of law and confidence in the rights and institutions of domestic and international governance.

The point is that people calling for treating the Underpants Bomber as an enemy combatant subject to a distinct set of rules are making both a rational and defensible claim. Responding to the articulation of this need by wheeling out the old and creaky laws of war and assert that they prevent such an approach is a little like demanding scutage from the tenant renting your basement apartment. You show how out of touch you are and you are unlikely to advance your interest. We should instead be focussing our efforts on delineating what an appropriate set of rules should be. - Beta

3. War on the Rule of Law

We should begin with some of the more absurd assertions. There are no laws of war, and no body is enforcing them? Utter nonsense. Leaders of Nazi Germany and Japan were executed for their violations of the laws of war. The International Criminal Tribunal for the Former Yugoslavia and for Rwanda have being trying political and military leaders for years. Saddam Hussein was executed for violations of the laws of war. The International Criminal Court was established in 1998 to prosecute violations of the laws of war. And no relevant laws that date back 1000 years? The civil law of continental Europe is directly descended from Roman law. The property law principles in Anglo-American law date back to at least 1066. But all of this is a red herring, and in any event the modern laws of war were really developed in the last 70-60 years.

The real argument advanced by Beta is that the laws of war have failed to address terrorism, and that trying to apply the laws of war creates a "gray zone" in which governments can engage in all kinds of nefarious conduct. This too is both absurd and internally inconsistent. The fact is that the laws of war do not apply to terrorism of the sort reflected in the underpants bomber, but criminal law does. And if the laws of war do not apply, how on earth can the regime be charged with creating the "gray zone" in which torture, rendition, and other such wrongs are conducted? My initial argument was not that the laws of war should apply, it was that under the laws of war the underpants bomber could not be treated as a combatant subject to the laws of war. It is Cheney who wants to apply the laws of war, not I.

The fact is that the "gray zone" that has permitted the pernicious and reprehensible conduct such as torture and rendition, is not caused by the application of anachronistic laws of war, but rather by a functionalist and utilitarian distortion of law in order to achieve political objectives - in this case, to do "whatever it takes" to make Americans safer. With the internment of the Japanese during World War II it was the subversion of constitutional law. With the war on terror, it is the violation of the laws of war and other aspects of international law. It is ultimately the rule of law that is savagely undermined, and the foundations of our system is put at risk.