Last week, Judge Katherine Forrest decided that the US government's scheme for detaining terrorism suspects without charge or trial is unconstitutionally vague. Meanwhile, 238 members of the House of Representatives voted to confirm a power that could be used to arrest terrorism suspects on US soil, including US citizens, and hold them without charge or trial. So, who's right?
Let's first go back to 2004 when another federal jurist, Judge Joyce Hens Green, asked the government's lawyer a simple question: "If a little old lady in Switzerland gave money to a charity for an Afghan orphanage, and the money was passed to al Qaeda, could she be held as an enemy combatant?" The government declined to rule out the detention of innocent little old ladies as enemy combatants, and Green, not surprisingly, ruled against such a broad detention scheme.
Likewise, in last week's decision, Forrest ruled against the detention law because it fails to adequately define what conduct is cause for detention without charge or trial. In oral arguments leading to this decision, an exchange took place similar to the earlier one with Green. Forrest asked the government if it would agree that people can't be detained unless they specifically intended to support "the enemy," thus taking them out of the category of innocent little old Swiss ladies. Again, the government declined to make that concession, which presumably would have saved the law.
The government was right about one thing both then and now, which is also why both courts were right to rule against the detention law.
Under the law of armed conflict, or international humanitarian law, intent is irrelevant in both targeting and detention. You may be targetable, and certainly detainable, if you're a member of the enemy's armed forces even if you never intended to shoot a gun or swat a fly.
If this seems counterintuitive, perhaps it is because, for over 200 years, we've toiled under constitutional principles that generally prohibit detention absent criminal charge and trial — that require proof of criminal intent. But the law of armed conflict is different than criminal law. It's more about security than culpability, so, in a way, the government is right.
However, what the government gets wrong is much bigger than, and comes way before, what it gets right. In order to invoke powers of detention under the law of armed conflict, there first has to be an armed conflict and the detention has to be related to that armed conflict. But laws and practice on post-9/11 detention are not limited to persons who take part in armed conflict. The US has stubbornly insisted on defining both the conflict and the scope of detention more broadly than the well-considered laws of war would permit.
So who are we at war against? The Taliban in Afghanistan? Yes. Other groups or individuals deemed to be "associated forces" of al Qaeda or the Taliban but operating elsewhere? Maybe. Persons or groups alleged to provide "substantial support" to the Taliban or al Qaeda as broadly defined in US practice? Doubtful.
All terrorism? Impossible, although many in the US Congress want all terrorism suspects held in military custody and tried, if at all, by military commissions rather than federal criminal courts. Terrorism is a tactic. It cannot be a party to an armed conflict. Unlike the proper nouns "Germany" and "Japan," you can't defeat a common noun like "terrorism." It can't meet you on a railway car, surrender and promise not to do it again.
All terrorists, regardless of who may be their enemy? First, see "terrorism," above. Second, why would we be at war with those who are not at war with us? Third, there isn't even an internationally accepted definition of "terrorism," and therefore, of "terrorist."
So, before we get to the question of who can be killed and detained in a war, there's the question of who the war is against and who is detainable under the laws of war.
In his federal court sentencing of "shoe bomber" Richard Reid in 2003, Judge William Young said this:
There is all too much war talk here ... You are not an enemy combatant. You are a terrorist ... And we do not negotiate with terrorists. We do not treat 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.Young's words have withstood the test of time. Richard Reid was just one of hundreds of terrorism suspects charged, tried, found guilty and sentenced to long prison terms in US federal courts. On the other hand, the circus version of justice that is the Guantanamo military commission — the darling of the misguided wing of the "tough on terrorism" crowd — takes 13 hours to get through a preliminary hearing that a federal judge handles in 10 minutes. A military commission struggles to try its way out of a paper bag because the foundations on which it rests are illegitimate and the decent US military lawyers assigned to defend the accused know it and say it.
Green and Forrest were sending the same message as the Guantanamo military lawyers, albeit on matters of detention rather than trial: crime, not war, is the proper framework for much of this. Forrest's decision may not hold up on appeal before appellate judges who reject the constraints of international law. Still, she was right to put the brakes on the runaway train that is the "war on terrorism."
Gabor Rona is the International Legal Director for Human Rights First. Prior to joining Human Rights First, he was an advisor in the Legal Division of the International Committee of the Red Cross (ICRC). Rona has extensive experience in international criminal law and international humanitarian and human rights law in the context of counter-terrorism policies and practices. He is a frequent JURIST contributor.
Suggested citation: Gabor Rona, Broad Definitions of Terrorism Will Continue to be Struck Down, JURIST - Hotline, May 30, 2011, http://jurist.org/hotline/2012/05/gabor-rona-terrorism-definitions.php.
This article was prepared for publication by Sean Gallagher, the head of JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org