|
|
|
|
Ethics & International Affairs
Annual Journal of the
Carnegie Council on Ethics and International Affairs
The Style of the New War: Making the Rules as We Go Along
George A. Lopez
It is curious to note the evolution of discussions about the moral and legal rules that apply in the fight against terrorism. Immediately after September 11, when it was clear that the United States was going to focus its new war within Afghanistan, the first question that arose was how the United States was going to assess the deaths of Afghan civilians as collateral damage. A second, major set of legal and ethical issues developed around the Bush administration's declaration that those captured in the war would face trial before military tribunals. And as the major campaigns of the war have come to a close, the celebrated issue has become the present and future legal status of the quite different fighters, supporters, and operatives of al-Qaeda and the former Taliban government who are in U.S. custody.
The prevailing U.S. government approach to the rules that pertain to these concerns-and to the areas of concern examined by the Roundtable essayists-has been to claim that the unprecedented nature and form of the September 11 attacks warranted unprecedented means in response. In short, new threats and actions by a new enemy demand new rules. At the same time, U.S. government action seems to indicate that as these rules take form and are implemented, they will continue to be adapted to the new circumstances and the ongoing puzzles of this unique situation. Clearly, the United States is developing the rules as it goes along in this war. Such ad hoc rule making has not come out badly for the United States, both as measured against some of the old rules and because the "push" that such new dictates face has not yet come to "shove." But soon it will. And the result will pose more complex and controversial challenges than the new rules developed in the earlier phases of this war. This demands a higher level of democratic discussion about which rules apply to the issues of civilian casualties, military tribunals, and the status of detainees.
Civilian Casualties
The U.S. approach to dealing with collateral damage in the form of the death of Afghan civilians serves as a first area for deeper scrutiny. As President Bush stated in his address to the General Assembly in November 2001, firmly embedded in the U.S. heritage of political and moral concerns is the rule to limit the death of civilian nationals. 1 Any fair assessment would conclude that in a number of ways, the first phase of the war was demonstrably more humane-certainly in design, and in much of its execution-than any previous U.S. war-waging enterprise. The commitment to limit loss of civilian life during the massive bombing that opened the U.S. military campaign in October was so strong that pilots often checked with command headquarters in Florida to obtain up-to-date intelligence for certain targets. This practice led some political figures and news analysts to suggest that such efforts were overly scrupulous and may have permitted key members of the enemy to escape. However admirable this behavior during the early phases of the war, as conditions have begun to shift on the ground, so too have the rules that apply to Afghan civilian casualties. Since the installation of the interim government, there have been more civilian casualties per week from U.S. attacks than during the war to overthrow the Taliban. Frustrated by the less-than-aggressive policy of an interim Afghan government to capture and hold former Taliban and al-Qaeda members, anxious over the continued elusiveness of the very top leadership of both the Taliban and al-Qaeda, and still engaged in various actions of a police nature against pockets of resistance, the Pentagon has now selected new targets, many located in more populous areas.
Details about new missions of ground troops and Special Forces are hushed. Secretary of Defense Donald Rumsfeld discusses civilian casualties only in response to direct questions about them. Since mid-December these "answers" have reiterated two themes: the responsibility for civilian casualties rests squarely with the Taliban and al-Qaeda as they seek to hide among the general population; and the Pentagon is not going to keep track of civilian casualties or talk about them. The implication is that no one is counting the dead because the numbers do not matter.
The doctrine of proportionality regarding the number of lives lost in war (whether in international law or just war theory) never was meant to be treated as a mathematical equation or an equal balance. But this war situation places the United States in a unique position as more information about the deaths of innocent civilians is revealed. The number of deaths on the U.S. side continues to be revised downward from the initial fear of some 7,000 dead in mid-September to an estimate of 5,000 dead at the World Trade Center and, in early 2002, to just under 3,000 people killed. Meanwhile, the civilian casualties mount in Afghanistan beyond the 4,000 mark in what we are told is necessary action to accomplish war aims. Without critical comment-and certainly without the detailed discussion that has developed regarding military tribunals-the press accepts the unwillingness of the Pentagon to discuss any figures on civilian casualties. Moreover, the press has not been reporting the myriad of alternative sources, from academics through human rights NGOs, that are attempting to record civilian casualties accurately.
Military Tribunals
For all the ambiguity ofdefinition and rules for dealing with those captured in Afghanistan, this "learning as we go" approach may actually be producing clarity and greater consensus regarding the development of military tribunals. Ruth Wedgwood is among those who believe that both prevailing international law and the exigencies of this situation place the original Bush administration proposal on defensible grounds. One reading of William Nash's essay is to interpret these tribunals as a second-best alternative to existing mechanisms already available in the military code of conduct. This difference represents one dimension of what has become-to the surprise of many-a broad-ranging democratic debate about military tribunals.
This debate has blossomed further into an evolutionary dialogue about the political, philosophical, and legal dilemmas associated with military tribunals, with the discussion quickly turning to the potential for modifying the original idea put forward by the administration. The strong critique included a thoughtful analysis by former president Jimmy Carter in early December and a systematic exploration by Human Rights Watch of the costs and benefits of the tribunal compared to viable alternatives. 2
In stark contrast to their examination of other aspects of the war on terrorism, such as prisoners and civilian casualties, the concept of tribunals has been seized upon by the media for a wide range of open debate. The venue has ranged from National Public Radio, with its balanced pros and cons, through major and regional TV networks, as well as the press, which have given more than equal time to those who argued that the military tribunal approach was shortsighted. This has resulted in greater caution, a toning down of administration claims about the necessity of such a court, and the "floating" of a range of options.
By January 2002, and with an interim Afghan government in place, the Bush administration was talking openly about modifications that would occur should military tribunals be needed. Thus, without much political fanfare, the indictment, arraignment, and pretrial procedures for the suspected twentieth hijacker of September 11 proceeded without a hitch within the existing U.S. federal court system in Virginia. And John Walker Lindh, whom so many believed would come before a tribunal, was handed over to the U.S. Justice Department to face criminal charges of conspiring to kill Americans. This "learn as we go" approach regarding courts and legal proceedings for the crimes of September 11 does appear more democratized and productive in searching for the best option than do actions in other areas of the conduct of the war. But the results come less from administration leadership and conceptualization than from the steadfast pressure of the broader civil society.
Prisoners
As I write, in February 2002, the United States has announced that it holds more than 300 members of the Taliban and al-Qaeda as "detainees" and has transferred a number of them to a detention center at the Guantánamo naval base in Cuba. Wedgwood and others argue that much of this action seems consistent with prevailing international law. Human Rights Watch and a host of other NGOs disagree, noting that specific legal and politicaldecisions about the status of these fighters beyond the term "the enemy" or "illegal combatants" or "detainees" must be designated, and that the individuals held must be charged with a particular offense. 3 From the Pentagon's point of view, decisions about the legal status of prisoners should be left in abeyance, and the rules governing them covered in generalities. But the circumstances of such prisoners are beginning to defy this approach.
Along the way to defining and seemingly winning the first phase of the war, the United States has developed an identity problem regarding "the enemy" that has led to this current dilemma. By deciding (quite possibly correctly, or at least within the realm of defensible action) that the Taliban's refusal to turn over bin Laden necessitated bringing down that protective government structure as a means for catching him, and for closing down much of al-Qaeda, the United States mixed two (perhaps three) types of enemies as targets/foes/combatants.
First, the United States attacked the Taliban as an outlaw government that harbors terrorists. This clearly made that government and its troops the enemy of the United States in the (undeclared in a legal sense) war on terrorism. In a declared war, the Taliban and its fighters would fall under the rules of the Geneva Conventions. But U.S. actions seem to counter this designation in favor of a more ambiguous "war" on terrorism, which lends an equally nebulous status to all Afghan fighters and officials captured in that war.
The United States might have opted for a different strategy and enemy designation scheme. The recent history of the international community's dealings with the Taliban provided ample cause for legally grounding U.S. military action in existing Security Council resolutions, thus making Taliban government officials and the Taliban army enemy combatants, who constituted a "threat to international peace." As such, the Geneva Convention rules would apply. But in the absence of such a specification, we await the choice of rules.
This ambiguity may have been best exemplified in the case of Mullah Zaif, the former foreign minister of the Afghan government to Pakistan, who was captured on January 5, 2002. By late February, it was still unclear whether Zaif would be considered a prisoner of war, as a former government official who acted in defiance of Security Council resolutions, or whether he will be protected by the diplomatic rules of various conventions. That he was being interrogated and held was widely known, but his legal status under interrogation remained unclear.
A second interpretation is that Taliban fighters and government officials were the defeated side in a civil war, in which the massive aid and actions of an external nation, the United States, helped the Northern Alliance to topple a government. Under these conditions, international principles that govern the conduct of internal and civil wars, with its own set of Geneva Protocols, prescribe the rules. While it may be neat and convenient to assume that all Taliban fighters supported bin Laden, the truth is that many fighters were first motivated and then captured while fighting under their local warlords, in their own civil war. And ill-advised allegiance is not a war crime, save in a system of victor's justice-which we would assume the United States must avoid.
Third, and most certainly, al-Qaeda members belong to an illegal organization. The rules against them are different from those against Afghan warriors. Surely the United States would not want to withdraw the applicability of the Geneva Conventions from the latter force simply because it was too poor to have uniforms and too poorly led to comprise much of a modern fighting force. Al-Qaeda fighters who are not Afghans can be designated and charged with any number of criminal offenses, depending on the evidence against them. In all cases of current detainees, however, the United States seems anxious to preserve the ambiguous status out of a desire to continue interrogation for intelligence-gathering purposes. Thus we have an ambiguous and varied "enemy" as current detainee, not yet classified as either prisoner of war or criminal terrorist. As the situation develops, two issues heighten the puzzlement regarding why Washington is so hesitant to designate a clear legal status for these individuals. The first is that the actual treatment by the United States of the detainees with regard to food, clothing, shelter, and care regarding religious issues seems to fall well within the guidelines of the Geneva Conventions. What falls outside those parameters is the right to legal counsel, resort to secret interrogation, and failure to provide permanent housing. Second, the quietest, yet most vigilantly concerned, sector of the United States regarding this detainee ambiguity is the U.S. military. These officials and soldiers know the potentially dangerous precedent that the absence of legal designation may pose for U.S. service personnel captured by an enemy in some future conflict. As the debate moves on, these voices may well win concessions and clarifications from Secretary Rumsfeld and the White House that civil society has not yet been able to obtain.
In a style that can only be labeled "making the rules as we go along," the U.S. administration's approaches to the new war on terrorism, from its inception to its current police-style actions, have been modified-sometimes by changing circumstances, sometimes by the heat of criticism or the light of open discussion within the wider body politic. But some areas of the war on terrorism have not evolved so productively. Despite the early U.S. commitment to limit collateral damage, under the interim Afghan government, U.S. forces are killing more civilians than during the air and ground war. Continuing drama and legal ambiguities dominate the holding and interrogation of the diverse fighters and former Taliban operatives who are prisoners of the United States. Only in the area of military tribunals have the wider civil society and the media had an impact on deciding which rules apply to this new war. This may give us some cause for celebrating the virtues of democracy. But the fact that placing the war more centrally within the standards of Western law must be achieved from the bottom up rather than through administration leadership will continue to cause concern.
Notes
Note 1: Remarks by the President to United Nations General Assembly, November 10, 2001, UN Headquarters, New York, New York : "We're making progress against military targets, and that is our objective. Unlike the enemy, we seek to minimize, not maximize, the loss of innocent life." Back
Note 2: Remarks offered by President Carter at the dedication of the Joan B. Kroc Institute for Peace and Justice, University of San Diego, December 6, 2001; Thomas Malinowski, "Court Martial Code Offers a Fair Way to Try Terrorist Suspects," International Herald Tribune, December 29, 2001. Back
Note 3: Thomas Malinowski, "What To Do with Our 'Detainees'?" Philadelphia Inquirer, January 28, 2002; Background Paper on Geneva Conventions and Persons Held by US Forces, Human Rights Watch, New York, New York, January 29, 2002. Back