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Law vs. War: Competing Approaches to Fighting Terrorism

Authored by Ms. Shawn Boyne, Mr. Michael German, Dr. Paul R Pillar, Dr. Dallas D. Owens. | July 2005

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INTRODUCTION

The three papers in this collection of readings resulted from a conference entitled ?Beyond the U.S. War on Terrorism: Comparing Domestic Legal Remedies to an International Dilemma.? The conference was sponsored by the John Bassett Moore Society of International Law, University of Virginia School of Law, in cooperation with the Strategic Studies Institute, U.S. Army War College, and was held February 25-26, 2005. Over 160 people participated in the conference conducted at The University of Virginia. Conference participants included representatives from government agencies involved in the U.S. war on terrorism, students and faculty members from other universities participating in fields related to the topic of the conference, and members of the local community and the University of Virginia.

The conference program was designed to discuss international legal remedies to terrorism in terms of: (1) the importance of definitions for war and terrorism, (2) the evolution of U.S. political and legal responses to terrorism, (3) the long and rich European experience, (4) the lessons from Latin America about terrorism and the dangers of oppressive reactions, (5) the Islamic world?s role in and reaction to terrorism, and (6) the relationship between terrorism and the law of the battlefield. A panel, with members drawn from diverse backgrounds, was dedicated to each of these six topics.

Key insights from the conference are:

  1. Competing definitions of terrorism and war yield different diplomatic, legal, and military consequences. The definition a policymaker chooses is a key consideration.
  2. The United States defined the September 11, 2001, attacks as acts of war rather than crimes outside a war context. The resulting response was due in part to a lack of legal flexibility in U.S. law, not understanding the power imbedded in criminal categorization, and reliance on structural changes for solutions.
  3. European countries have a long history of individually and collectively responding to terrorism through their legal systems, and the United States could profit from examining those responses.
  4. Latin America has a long history of contending with terrorism in a context of guerrilla warfare.
  5. Strategists and policymakers often incorrectly view the Islamic world as homogeneous and unchanging in its relationship to the West and to terrorism.
  6. Policy formulation could benefit from the many historical examples, some in U.S. history, of problems associated with applying laws of war to insurgencies and other irregular warfare.
  7. The United States should avoid: (1) limiting itself by adopting overly simple definitions; (2) characterizing offending groups by a tactic used and forgetting they have many other dimensions; (3) one-dimensional reactions to attacks; and, (4) underestimating the value of legal solutions to international problems.

The three papers herein represent presentations addressing the first three conference themes and reinforce all the key insights except 4, 5, and6. In the first paper, Mr. Paul Pillar clearly articulates issues associated with basic concepts of terrorism and why definitions have diplomatic, legal, and military consequences. He cautions us to remain aware that the American perspectives about terrorism, and those of our friends, are the products of our particular cultures and histories. While we should learn from others? experiences, we must avoid their perceptual traps as readily as our own. Mr. Pillar concludes by wisely pointing to the shared goals of international law and counterterrorism operations?to minimize human suffering, even in situations where the likelihood of suffering is increased, such as war. If we can keep that goal in mind, our motivation to save innocent people from future terrorism is more likely to outweigh revenge, expanding influence, and other less noble motivations.

In the second paper, Mr. Michael German illustrates why he believes the U.S. reaction to terrorism is not just inadequate, but rather, by being incorrect, our strategy compounds the problem. By defining activity as terrorist warfare rather than criminal behavior, we enhance perpetrators? status and provide them the legitimacy that they seek. The author?s experience as an undercover Federal Bureau of Investigation agent has given him valuable insights into terrorists? desire for legitimacy among their supporters, sympathizers, and others who have potential to become part of those two groups. He discusses how these groups develop strategies to create overreaction by authorities and to avoid their most feared outcome, being labeled as mere criminal gangs. He likewise discusses the patterns of governmental overreaction that must be avoided if the government?s legitimacy is to be preserved; fortunately, the U.S. Constitution provides an effective structure to avoid overreaction by guaranteeing individual rights and requiring open-source and transparent methods for criminal prosecution. Secrecy and increased governmental power is not the solution. He convincingly argues that his conclusions about domestic terrorists are applicable to their international counterparts and that the legalistic approach that has proven effective within the United States would be equally effective internationally.

Finally, Dr. Shawn Boyne discusses Germany?s recognition of the Islamic terrorist threat, but rejection of the metaphor of war in favor of its constitutional law framework. That commitment provides for the same civil liberty protections for all acts, whether or not committed by citizens and without regard for motivation. She convincingly argues that the German approach is a consequence of its relatively long and active history of dealing with domestic terrorism and more recent internal debates. Germany decided, in contrast to the United States, not to view the September 11, 2001, attacks as the beginning of a war, but through the lens of German and international law. Germany?s response was not to create new law, but to strengthen resources to investigate and enforce existing laws. Logically, its military forces were provided specifically for Afghanistan, mostly in noncombat roles, and not for the general war on terrorism. Germany?s legalistic stance was not sufficient to avoid making difficult choices about the balance between internal security and civil liberties and may mean that democracies must remain vigilant in protecting human rights, no matter which tactics they choose to fight terrorism. At a minimum, the United States should view the German solution as an alternative to its own and compare its relative effectiveness for security and potential costs in civil liberties for its citizens.

CONCLUSION

A key challenge for democracies today is how to preserve human rights while protecting their security interests. In the best of circumstances, the nature of how terrorists operate challenge governments that attempt to craft effective counterterrorism strategies that protect human rights and civil liberties. To preserve the rule of law in a time of terror, it has become increasingly important that governments ensure that systems are in place to discover, investigate, and prosecute human rights abuses. This requires an ongoing commitment at all levels of government, as well as an aggressive media that is unafraid to shine the light on government transgressions. Absent this level of commitment, democratic governments run the risk that the most important casualty of the war on terror will be their commitment to the rule of law itself.