War on Terror (Week 6)

1972

Munich Olympics

Nixon's Cabinet Committee to COunter Terrorism

1993

WTC bombing, killed 6 people and injured 1000

Clinton strategic calculations

AQ formed 1988, US intelligence did not describe it until 1999 and extent of activities not shared with anyone

Knew AQ behind 1998 US embassy bombings and supported by Taliban but did not know symbiotic financial arrangement

Reluctant to attack the Taliban - impeachment proceedings, feared it would be seen as disproportionate

Cruise missiles against training sites in Afghanistan and Sudan, regional anger against US

2000

Bush takes office

AQ bombed Navy Vessel in Yemen, US made no public attribution

9/11 Commission in 2004 - Bin Laden's inference may have been that attacks on the US, at least on the level of the Coal were risk free

Bush on evening of 9/11

Declared WOT, deliberate decision not to 'underrespond'

'Our WOT begins with al Qaeda but does not end there; it will not end until every terrorist organisation of global reach has been found, stopped and defeated.'

Military into fight -'All of America is with you and you will make us proud'

GWOT beginning and scope

Sept 18th 2001, declaration of war, AUMF

80 countries involved - Russia, China, Uganda, Belarus

GWOT under Obama

OCO, geographic breadth and lethal nature continued to expand, increased use of special operations teams and drone strikes

GWOT under Trump

so-called peace deal with Afghanistan but did not curtail operations outside of Afghanistan

Current GWOT

Most have transitioned to smaller military engagements, difficult for security reasons to say which, if any, have been completely shut down

2021 Brown Uni on GWOT

Brown Uni estimated 20 year cost of WOT was $9tn and 900,000 deaths worldwide

Doesn't include indirect deaths, acknowledged by Brown as an undercount

Gearty and Mégret on the use of 'war'

Gearty: insecurity of the homeland laid bare, enemy as being everywhere

Mégret: semantics of war, influence on the legal debate (see use of force notes)

AUMF

Authorisation for Use of Military Force

Authorisation for Use of Military Force

Authorised President to:

Use all necessary and appropriate force

Against those nations, organisations or persons

If he determines

Planned, authorised, permitted or aided 9/11

Or harboured such organisations or persons

In order to prevent any futyure acts of international terrorism against the US

Rep Barbara Lee on AUMF

Warned her colleagues to 'be careful not to embark on an open-ended war with neither an exit strategy nor a focused target' - 'blank check'

Quoted Nathan Baxter - 'as we act, let us not become the evil that we deplore'

Patriot Act date

October 2001

'Goal' of Patriot Act

Stated goal of tightening US security as it relates to foreign terrorism

What did the Patriot Act do?

Expanded law enforcement surveillance - tapping phones

Relaxed information sharing prohibitions

Indefinite detention without trial of immigrants in certain terrorism related cases

Increased penalties for terrorism crimes

Expanded the list of activities which would qualify for terrorism charges

Gave law enforcement authority to search property and records without a warrant, consent, or knowledge in a proper case

Federal courts have ruled a number of its provisions are unconstitutional - narrowed as a result

2017

Travel Ban (Trump)

Bureaucratisation of the GWOT

Supports and executes the GWOT

Expansion of executive power nad dilution of oversight

Legislation and GWOT

Law's active role in facilitating and supporting

Impact of US GWOT

What the US does tends to be modelled, emulated or forced into other countries and intl institutions - UN structure, UNGA resolutions, UNSC resolutions and focus

Changing IL about use of force

Gaza - consolidation by a state of the idea of expanded powers/authority in face of intl condemnation

9/11 Commission on US Law enforcement and intelligence

9/11 Commission - successful arrest and prosecution of perpetrators of 1993 WTC bombing had a side effect of obscuring the need to examine the character and extent of the new threat facing the US. Entire system of federal law system and interaction at state and local level + intelligence community was in need of an update to deter global terrorism threats.

Pendulum swung, everything oriented to terrorist threat

Reorganisation of US law enforcement and intelligence

Homeland Security Act 2002 - unified 22 federal departments and agencies under Dept of Homeland Security

Largest single restructuring of US gov since Dept of Defence post WWII

90-9 iin Senate with little floor debate

Strengthening the Director of National Intelligence

Limited checks on executive power

Third Geneva Convention Relative to the Treatment of Prisoners of War (GC III)

Humanitarian protection for POWs

196 state parties

Article 2 GC III

Applies to all cases of declared war or any other armed conflict between two or more HCPs, all cases of partial or total occupation of HCP territory even if no armed resistance

Article 5 GC III

Treat them as a POW until their status can be determined by a competent tribunal (not defined anywhere, based on what a state considers to be)

Additional Protocol I Art 75 GC III

Sought to define due process rights (US not a party)

Scope of Article 3 GC III

Minimum humanitarian protection in conflicts not of an international character - 'common article 3'

Article 3 GC III

Persons not taking active part - be treated humanely

Prohibited at any time:

Violence to life and person

Hostages

Outrages upon personal dignity

Executions without a regularly constituted court

Commentary on Article 3 GC III

Vast majority of recent armed conflicts non-international in nature

Not confined to territory of state - one reading is that it occurs internally - 'one' of the HCPs, but object and purpose supports applicability in cross-border, aim is to provide minimum protections

Applies in non-international armed conflicts that cross borders

Article 4 GC III

Prisoners of War

Prisoners of War meaning GC III

Have fallen into power of the enemy, and

Members of armed forces of Party to conflict or member of militia/volunteer corp

Members of other militias and volunteer corps, including organised resistance movements

Members of regular armed forces; accompanying armed forces; crews; inhabitants of non-occupied territory who take up arms on approach of the enemy

US' main argument about the Geneva Convention

Argued it does not apply to the conflict with Al Qaeda or AQ or Taliban detainees

Bush' decision re GC III

US War Crimes Act 1996 defines war crimes as 'grave breaches' of GC and establishes penalties

Bush used executive authority to declare them to be 'unlawful combatants' (later 'unprivileged enemy combatants') - determined they failed to meet the criteria for POW status in Art 4 GC III

US Memo Jan 2002 core argument

President can decide it does not protect members of Taliban militia, President has the constitutional authority to temporarily suspend treaty obligations to Afghanistan under the GCs.

US Memo Jan 2002 title

US Memo on Application of Treaties and laws to AQ and Taliban Detainees (Jan 2002)

US Memo on Al Qaeda

Not a HCP

Nature of conflict precludes Article 3

Why did the US memo argue that AQ was not a HCP?

Distinct to Taliban

Not a state, if article 2 doesn't apply, Article 4 doesn't apply

Why did the US memo argue that the nature of the conflict precluded Article 3?

It argued the conflict was not of a non-international chracter

Novel nature

State intentions - solely internal, not in sense of states and private actors

Nicaragua: world as patchwork of states

Ignores period in which it was ratified

US memo on the Taliban

Afghanistan is a failed state and this is a basis to suspend GC III obligations

Not entitled due to a failure to conduct themselves in accordance with the Conventions

Why did the memo argue Afghanistan was a failed state?

Looks at test for statehood in IL - arguing that it is directly relevant for considering whether Afghanistan has lapsed into a condition of statelessness

Me: statehood is declarative rather than constitutive, conflating issues of gov with issues of statehood

Montevideo on Rights and Duties 1933, considered to reflect custom, political existence is independent of recognition

Declaratory dominant view

President can decide domestically, but distinct as a matter of IL, but says that IL has no bearing on domestic constitutional issues

IL - material breach of treaty

Dismisses the argument that the GC could not be suspended even though general rules authorising suspension do not apply to humanitarian treaties (which Geneva is)

Boumediene v Bush (2008) judgment

Even though GTMO not US sovereign territory, it is 'under the plenary control, or practical sovereignty' of the US

Detainees have right to bring habeas petition to challenge legality of decision

Solely focused on procedural protections

Kiyemba v Obama (2010)

Habeas corpus not a right to enter the US, no constitutional rights under than HC

Qassim v Trump

Constitutional due process rights may apply to HC process, but in GTMO seemed to meet the relevant standards

On facts - process where classified info supporting detention shared with cleared counsel and adequate unclassified summary shared with D likely constitutionally adequate