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International Law Challenges: Homeland Security & Combatting Terrorism
By John M. Handley
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The author attended the conference on which he reports out of personal intellectual interest. Dr. Handley's long Army career in military intelligence culminated as dean of the School of Attaché Training at the Defense Intelligence College, Washington, D.C. –Ed.
"A deep divide exists between these two major viewpoints. . . .[A] basic division involves and affects methods, sources, re-sources, planning, and thinking. It does not bode well. . . for the internal security of the United States."
In order to learn more about homeland security issues, I attended a conference on the above-titled topic at the U.S. Naval War College, Newport, RI. The conference, held 23-25 June 2004, consisted of six panel discussions after an opening individual presentation. Of approximately 220 participants, at least 200 were lawyers. Most were connected with the military, either as active duty members or current or former professors at a military Judge Advocate General (JAG) Legal Center and School.
The following is an entirely unofficial report on the conference proceedings as viewed by the writer, a non-lawyer retired U.S. army col. with nearly three decades of service in military intelligence.
Summary
The conference began with a presentation by Deputy General Counsel for Homeland Security Ryan Stiles in which he described the global war on terror and what the Department of Homeland Security (DHS) was doing to prevent another attack on American soil. After this presentation, Rear Admiral John Crowley, U.S. Coast Guard, generally dismissed the "war on terror" as nothing more than a law enforcement operation. He introduced the first of the six conference panels:
Adm. Crowley's panel addressed security and maritime border control. His Australian panel member said the Australian military and police worked well together since they didn't have any constitutional restrictions on doing so. The Argentine representative stated that his government would not allow the military to work with the police for fear of a military coup. The German panelist described the changes in German law that allowed the military and police to work together to protect the country, but concluded that Germany would not use the military in any type of a police role, to include maritime border security.
U.S. Navy Captain Jane Dolton, Asst. Judge Advocate General, introduced the panel on Proliferation Security Initiative (PSI), in which Prof. Wolff H. von Heinegg (U.S. Naval War College) discussed the legal challenges to proliferation security and how the United States and allied countries worked to address these challenges. Patricia McNerney, senior advisor to John Bolton, Undersecretary of State for proliferation, essentially provided the same information as Prof. von Heinegg. Prof. Craig Allen (Univ. of Washington) asked, but made no attempt to answer, several practical questions concerning how PSI would work. USCG Captain William Baumgartner opined that PSI, like the counter-narcotic program, was evolving and developing and had yet to take its final form. The last member of this panel, Prof. Stuart Kaye (Univ. of Wollongong), like Prof. Allen, asked several very important questions about PSI implementation and international law implications, but in the end offered no answers.
The third panel addressed Occupation Law. Ital-ian Lt. Gen. Fabio Mini, a former commander of NATO forces in Kosovo, described how difficult it was for the military to work with international and non-governmental organizations in an area that is not fully at peace, yet not fully at war. He provided numerous examples of personal frustration in dealing with UN representatives. Canadian Prof. Greene generally castigated the United States for its past, present, and future foreign policy. Dr. Knut Doerman, from the ICRC, found little difference in the U.S. policy in Iraq concerning pre-occupation, occupation, and post-occupation. Fred Abrams, of Human Rights Watch, detailed two instances in which he believed, but could not prove, that the U.S. military engaged in human rights violations in Iraq. Col. (ret.) Dave Graham (JAG) discounted Abram's two examples as miniscule in comparison to the good things coalition forces accomplished, and continue to accomplish, in Iraq. He described U.S. army interrogation training and noted the differences between Department of Defense and CIA training.
Daniel Sutherland (Homeland Security) introduced a panel on Military Commissions. The first speaker, USMC Lt. Col. William Lietzau, described when where, why, and how DoD established the commissions, to include all the nine supplemental changes to the basic order. Col. Frederick Borch (U.S. Army), a commission prosecutor, insisted that at the end of the day he wanted to insure that everyone realized the defendants received a free and fair trial.
Prof. Jordan Paust of the British Inst. Of Int'l & Comparative Law sought to rebut everything the pre-vious two speakers said, holding that the commission was completely broken and should be scrapped. Liet-zau responded that every objection Paust raised had been addressed and corrected in one of the nine sup-plements to the original order. British Col. Garraway provided the final thoughts on commissions by stating that since perception is reality and the perception is that the defendants will not receive a fair trial before military judges, then the military should ban civilian lawyers from the proceedings. It won't change the perception and the defendants will get a fairer trial if military lawyers defend them.
The last two panels addressed self-defense versus terrorism and targeting terrorists. On the self-defense panel, attorney David Rivkin presented a lengthy paper defending the Bush Administration's pre-emptive policy involving Iraq. Israeli Prof. Yoram Dinstein of the Univ. of Tel Aviv disagreed with every point Rivkin made, claiming pre-emption was not necessary since Iraq failed to comply with the terms of the cease fire. The coalition had every right to continue the war on the coalition's terms. The Marshall Center's Prof. Michael Schmidt agreed with the points made by Rivkin while the Germany Foreign Office's Dr. Christopher Mueller reminded the audience that one should be wary of the many unintended consequences caused by war.
The Targeting Terrorist panel consisted of two members: Kenneth Roth, Human Rights Watch, argued that all forms of interrogation that was in any way demeaning to the prisoner are outlawed by international law. He called Israeli use of targeted assassination simply state-sponsored murder and he attempted to set up a test to determine if an act or event required a law enforcement reaction of a war on terror reaction. Prof. Bob Turner (Univ. of Va.) returned to the basic question apparent after the first panel presentation. He cited domestic law and congressional resolutions justifying why the United States is in a state of war instead of simply confronting criminals. He generally referred to Roth's comments as naïve, stating that targeted assassination is not murder but rather self-defense.
Comment
What was learned by this observer from these many discussions and points of view? Everyone has an opinion and rarely do opinions on homeland security appear harmonious. Homeland Security advocates generally support DHS activity as necessary to protect the nation in the global war on terrorism. Those less favorably inclined to DHS, as well as some within the DHS, see the threats to the United States as threats from a criminal element that happens also to be terrorists. These threats, they believe, are best countered by law enforcement efforts.
A deep divide exists between these two major viewpoints and neither side seemed willing to offer any credence to the other side's position. Such a basic division involves and affects methods, sources, resources, planning, and thinking. It does not bode well for the future of the DHS or for the internal security of the United States.
August 5, 2004
Endnotes
Note *: The author, a member of the American Diplomacy Publishers board of directors, is a Webster Univ. adjunct professor of international relations based at Camp Lejeune, NC. Back