Top Ten Global Justice Law Review Articles 2008 9780199875580, 9780195399752

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TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008

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TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008 Edited and Selected by Amos N. Guiora

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TABLE OF CONTENTS “Global Justice: Looking Ahead”: Introduction by Amos N. Guiora . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

“International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide” by Monica Hakimi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

“American National Security Presiprudence” by Robert F. Blomquist. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

“Genocide in Sudan: The Role of Oil Exploration and the Entitlement of the Victims to Reparations” by Hannibal Travis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

“Mercenarism 2.0? The Rise of the Modern Private Security Industry and its Implications for International Humanitarian Law Enforcement” by E.L. Gaston . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

“Terror/Torture” by Karima Bennoune . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

“Identity, Culture and Stories: Empathy and the War on Terrorism” by Lt. Col. William D. Casebeer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257

“Psychological, Theological, and Thanatological Aspects of Suicidal Terrorism” by J.S. Piven . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285

“Relational Rights Masquerading as Individual Rights” by Hallie Ludsin. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311

“Environmental Cooperation in the (Partially) Disaggregated State: Lessons from the Security and Prosperity Partnership of North America” by Neil Craik, Joseph DiMento . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343

“Diversifying America’s Energy Future: The Future of Renewable Wind Power” by Ronald H. Rosenberg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377

Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413 TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008

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To a truly extraordinary, dedicated group of students on the Global Justice Think Tank at the S.J. Quinney College of Law, The University of Utah: Brooks Benson, Christian Bjarnson, Nicholas Craft, RuthAnne Frost, Sandra Hartman, Benjamin Lear, John Mbaku, Landon Potter, Brady Stuart, Carl Swenson, Linh Tran, Adam Wentz, Amanda White, Sharia Yancey and Daniel Young, whose work was invaluable and in particular to Artemis Vamianakis, the true soul and spirit behind this project.

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GLOBAL JUSTICE: LOOKING AHEAD INTRODUCTION by Amos N. Guiora

PREFACE When OUP asked me in the summer of 2007 to develop a series that would bring under one “roof ” the ten leading law review articles addressing “national security,” the parameters were, to be frank, unclear. Two years later, with Volume One behind us, it is clear that the project represents a unique effort. Comments received suggest it is successful, albeit with room to grow. How does one decide the “Top Ten”? What does that mean? Before explaining the methodology—which is at the core of the project—it is necessary to answer these questions. Rather than adopting a narrow perspective limited to “national security” we propose a broader, admittedly amorphous, perspective. The impetus for a more inclusive collection was predicated on a belief that the critical issues of the day must be viewed broadly. Global justice, which we define as the thematic intersection of international criminal law, national security law, human rights, civil liberties, economic justice, and environmental law, reflects that effort. While some have and others will argue regarding the definition, I would suggest that the essence is critical: a broad, interdisciplinary understanding of complicated issues is a pre-requisite to enlightened, engaged and constructive debate. That, in a nutshell, is the motive behind this project. As to the methodology, University of Utah Law School (S.J. Quinney College of Law) students enrolled in the Global Justice Think Tank, led by Project Director Artemis Vamianakis ( JD, 2009) under my supervision, reviewed thousands of law review articles published during the course of 2008 that loosely fall under the category of “global justice.” In order to ensure that the “Top Ten” are both the top ten and cover a wide array of issues, the scope of articles reviewed is extraordinarily broad. The selection process requires that each article be reviewed by multiple readers who assign a score to the article. Furthermore, articles are “categorized” to ensure that the volume not be “one-issue.” This is a “team effort.” Artemis’s efforts have been impressive. Her team, consisting of Brooks Benson, Christian Bjarnson, Nicholas Craft, RuthAnne Frost, Sandra Hartman, Benjamin Lear, John Mbaku, Landon Potter, Brady Stuart, Carl Swenson, Linh Tran, Adam Wentz, Amanda White, Sharia Yancey and Daniel Young, has performed exceptionally. It is important to note that this year’s team built on the

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efforts of last year’s (led by Rich Roberts, University of Utah JD, 2008), just like next year’s will build on this year’s. That said, a project of this nature requires a Dean who is creative, willing to “think outside the box” and encourages student leadership. That, I believe, accurately describes Dean Hiram Chodosh, who in conjunction with Associate Dean Bob Adler has made the requisite resources for this project available. Finally, a project of this nature requires the guiding hand of an outstanding editor. We are enormously fortunate that Kevin Pendergast is the series editor; his thoughtfulness, input, and cooperative spirit are essential “pieces of the puzzle.” The chosen articles’ authors come from a wide range of institutions. The same is true with respect to where the articles were published. In addition, we have decided—as a matter of policy—to include one student note in each edition. However, we will not sacrifice quality; if we are unable to identify a student note worthy of “Top Ten” designation, one will not be included. Encouraging and fostering young scholars is critical; after all, many of the issues addressed in this volume are “cutting edge.” A fresh approach can significantly advance scholarship. Continuity from year to year is important to the project’s success; it is our firm intention that successive volumes build on previous editions. This thread of continuity will, hopefully, contribute to a deeper understanding of “global justice.” Educators should consider developing a seminar predicated on the ten articles, with the possibility that student notes be considered for inclusion in the following years’ edition. While unanimity is all but impossible when designating “Top Ten,” we have endeavored to identify the ten articles that will make the greatest contribution to scholarship regarding “global justice.” If a series such as this encourages even more impressive scholarship, then we will have achieved an important goal. An anecdote is in order: recently I attended a conference and shared the 2007 edition with my fellow participants. One, a distinguished academic, quickly flipped through the table of contents only to find that his scholarship was not included. He was surprised; I was encouraged. The desire to be included will doubtlessly contribute to the academy. THE WORLD—“THE TIMES ARE A’CHANGING” . . . YES, NO, MAYBE? Bob Dylan wrote those words in a different context. Yet, for many they reflect the hopes and aspirations manifested in the election of President Barack Obama. These lines are written days after President Obama was inaugurated; it is, obviously, too early to determine whether his Administration will bring the much discussed and promised “change.” Doubtlessly, the election of an African-American whose father—to quote the President—might well have been denied service at a lunch counter 60 years earlier reflects change in and of itself. However, time will tell whether the change is symbolic only or also substantive. While, as an example, x

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President Obama signed an executive order closing Guantanamo Bay, a careful reading as suggested by Professor Eric Posner reveals that the detainees (upon GITMO’s closing) may be transferred to another facility.1 This prompted one colleague to suggest the Order should be entitled “Welcome to Bagram.”2 For seven years following 9/11—perhaps the seminal event of the contemporary age—the Bush Administration sought to develop, articulate and implement a lawful and viable counterterrorism strategy. Historians, with the unmatchable advantage of 20–20 vision, will judge the wisdom and effectiveness of the policies. Critics will argue that the torture-based interrogation regime advocated and established by the Administration in the immediate aftermath of 9/11 is but the clearest manifestation of legal, moral and policy failures. Supporters will argue that the absence of another 9/11 represents the wisdom and effectiveness of an operationally aggressive policy. Be that as it may, what is clear is that fundamentally basic principles have gone unaddressed. That is largely the result of unwillingness on the part both of the Bush Administration and its critics to carefully, concisely and precisely define terms of intrinsic importance to national security. I often remark to students that 20 years experience in operational counterterrorism (Israel Defense Forces, Judge Advocate General’s Corps) leads me to the fundamental conviction that legal and operational terms must be defined. While the executive branch members invariably shies away from careful definitions to maximize its flexibility and maneuverability, loose definitions loosely applied significantly contribute to violations of political and civil rights. They also do not contribute to effective counterterrorism. As an example: while there is much disagreement as to what should be the limits of interrogation, under no circumstances should torture be implemented. It is illegal, immoral and does not lead to actionable intelligence.3 Those in the Bush Administration who either directly or indirectly contributed to the torture of detainees bear a heavy responsibility.4 Whether such officials will be held accountable shall be determined in due course. One of the principal causes for the illegal interrogation regime was the failure to define terms. That task should be a—if not the—fundamental goal of the Obama Administration: define terms and do not choose the “easy way” of loosely applying loosely defined terms. Otherwise,

1

Eric Posner, “Bagram, Anyone?” The Volokh Conspiracy Blog, January 22, 2009, available at http://volokh.com/posts/1232643493.shtml.

2

Private e-mail to the author. Bagram is a U.S. military air base located in Afghanistan.

3

Danner, Mark. “Tales from Torture’s Dark World,” from the New York Times, March 14, 2009, available at http://www.nytimes.com/2009/03/15/opinion/15danner.html?_r=2&emc=eta1, last visited March 18, 2009.

4

Woodward, Bob. “Detainee Tortured, Says U.S. Official,” from The Washington Post (Wed., Jan. 14, 2009, p. A01).

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to quote Santayana, “Those who cannot remember the past are condemned to repeat it.”5 However, President Obama does not take office with an “empty plate.” Quite the opposite. The fullness of the plate is extraordinary—ranging from a deep financial crisis to deeply troubling issues abroad, including two wars, unstable regimes with nuclear capability, energy and environmental crises, and world-wide terrorism. In many ways, the ten articles in this volume represent the most complicated of issues which President Obama must address. If I suggested previously that this volume—from an educational mission—can serve as the basis for a seminar course then I would offer that from a policy perspective these articles are a road map of the current state of the world as faced by President Obama. The term “global justice” must be defined so that the US may effectively confront these myriad issues. Otherwise, not only will tragic mistakes occur (some preventable, others not) but civil democratic regimes such as the United States will, once again, implement illegal policies. Pre-existing problems must be confronted with an open mind, a clear conscience and enormous energy. That is the role of policy and decision makers, academics must actively engage. The role of the public intellectual must not be passive; forcefulness, scrutiny and skepticism are the hallmarks of a vibrant democracy. It is the responsibility of academics to play a vibrant role in what must be a robust debate. The times are too fraught with danger for scholarly diffidence. The ten articles discussed below—representing different ideological, academic, practical and theoretical perspectives—reflect that proper role for scholars. It is my great hope that this series will spawn additional scholars to fully engage the great policy questions of our day. THE TEN ARTICLES The range of issues covered reflects the broadness of the term “global justice.” The inclusion of articles addressing issues not included in last year’s edition reflects the fluidity of the term. Today, it would be inconceivable not to incorporate articles regarding economic, energy and environmental issues. Detention, torture, separation of powers, and human rights may be considered “natural” issues for a series concerning “global justice.” However, it is imperative that we understand that the dilemmas facing decision makers are not static. This year’s ten articles and the issues they address reflect that fluidity. Professor Monika Hakimi’s article “International Standards for Detaining Terrorism Suspects: Moving beyond the Armed Conflict-Criminal Divide” addresses what fundamental rights are to be accorded individuals suspected of 5

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Santayana, George. The Life of Reason Vol. 1: Reason in Common Sense. Amherst, N.Y.: Prometheus Books (1998) [original edition published 1905].

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involvement in terrorism. In particular, Professor Hakimi examines this all-important question from the perspective of what detention models are to be applied in determining detainee rights. What makes Professor Hakimi’s article both so important and disturbing is that seven years after 9/11 this fundamental issue— under what judicial regime should detainees be held—is still an “open question.” What makes the article so timely is that this question is one of many the Bush Administration left unresolved. It may, arguably, be the most important. If the Obama administration does not satisfactorily address the issues Professor Hakimi presents, the failures of the Bush Administration will become Obama’s own. Hakimi proposes three different models: the armed conflict model, the criminal model and the administrative model. In examining all three models, she suggests that the traditional models—armed-conflict and criminal—may be unsatisfactory in the present situation. In advocating the adoption of the security based administrative model, Professor Hakimi suggests that it most effectively balances the rights of the individual with the equally legitimate rights of the state. In highlighting the inadequacies of the criminal and armed conflict models, Professor Hakimi makes a compelling argument for the development and implementation of an alternative model. In addition, the article makes two significant contributions: it seeks to carefully define terms and to explain the enormously complicated relationship between security and rights. Alternative models are attractive yet dangerous. Attractive because they seemingly offer a solution to a pre-existing problem begging for a solution; dangerous because they can be illusory, akin to a “quick-fix.” Hakimi’s model enables the nation state to protect the multiple interests necessary for rule-based counterterrorism. A new Administration—regardless of its predecessor’s party—invariably and inevitably is expected to make changes in how it governs. Even in those instances where sitting Vice-Presidents replace the individual who appointed them, the incoming President has a different agenda than the former President. The agenda difference may be but a matter of style but, nevertheless, it is different. The differences between Obama and Bush are seemingly enormous; while obviously time will be the most accurate judge, all indicators suggest a stunning difference. Perhaps nowhere will the difference be more articulated—and palpable—than in the realm of executive authority. President Bush was an ardent adherent of the “unitary executive” theory propounded by Professor John Yoo. The Bush White House—from Vice President Cheney to David Addington—articulated and implemented an extraordinarily broad approach to executive powers. In particular, the unitary executive theory was applied by the Administration to all aspects of what it termed “the war on terrorism.” A powerful case can be made for the argument that the military commissions, Abu Ghraib, torture and pervasive violations of civil and political rights are the direct result of the unitary executive theory.

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Professor Robert Blomquist’s article “American National Security Presiprudence” examines the relationship between Presidential power and national security from a balancing perspective. Perhaps no word is more important than “balance” in determining the proper relationship between national security and civil liberties In describing the constitutional and historical basis for the principles of separation of powers and checks and balances—the two bedrocks of the US political regime— Blomquist provides a critical back-drop for his discussion regarding the limits of Presidential power. Blomquist describes the “new geo-political realities” of the socalled “war on terror.” In drawing heavily on President Abraham Lincoln, Blomquist suggests that Presidential policy in the context of formidable geo-political and national security threats must possess numerous qualities, including the ability to communicate and the presence of a “grand strategy.” Defining balance as “modesty in the exercise of power,” Blomquist highlights— correctly—a critical reality in the age of terrorism. The unitary executive theory reflects immodesty (in the context of Presidential power) and a fundamental failure to balance. The effects of the failed policy of the Bush Administration are for history to judge; the question going forth is whether the Obama Administration will internalize the sage advice Blomquist articulately offers. Professor Hakimi and Professor Blomquist have written articles of great strategic importance in suggesting how to more effectively address complicated issues in the future, both immediate and long term. However, the term global justice must be understood to also include tactical issues that are critical to defining individual rights and state responsibility. If global justice does not offer solutions to individuals otherwise unprotected, where is the justice? For global justice to be more than a vague term, it must address concrete issues. In other words, this series must reflect—equally—both strategic and tactical aspects of global justice. For that, we initially turn to Professor Hannibal Travis’s article, “Genocide in Sudan: The Role of Oil Exploration and the Entitlement of the Victims to Reparations.” The overwhelming human tragedy that is Sudan, and in particular Darfur, literally defies description. Perhaps Hannah Arendt’s famous phrase “the banality of evil” is an appropriate moniker to describe the unimaginable human suffering that both knows no bounds and sees no end. The human tragedy that is Sudan raises philosophical and practical questions regarding the nature of the religious and ethnic conflict, the role of the world (public and private institutions alike) with respect to relief assistance and the powerful convergence of business interests and natural resources. Deserving particular scrutiny—and blame— according to Travis are multinational oil corporations who have failed to prevent the ongoing genocide. Travis argues that powerful business interests (oil) have deliberately prevented effective humanitarian assistance reaching those desperately in need of relief.

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Travis also compellingly argues that “genocide” is the most accurate word to describe the Sudanese tragedy. Travis’s argument is based both on a careful, well-reasoned legal analysis of “genocide” and a statistical comparison of other genocides. Travis’s work counters the prevalent resistance to that term by various parties and forces, including inexplicably the former Secretary General of the United Nations, Kofi Annan. In engaging in this vital definitional discussion regarding genocide, Professor Travis makes two important contributions: 1) seeking to apply the term to a particular fact pattern; 2) highlighting that justice demand defining the nature of a conflict. As suggested previously, the lack of definitional consistency and rigor highlighted the Bush Administration’s approach to counter-terrorism. Failure to honestly define facilitates massacres like the one in Darfur. Complicating the situation— tragically—is the role played by multi-national oil corporations who, acting in conjunction with the Sudanese government, have directly contributed to the major displacement of civilian populations. Furthermore, according to Travis, oil based revenues have enabled the Sudanese government to purchase military equipment facilitating the genocide of minority populations. In order to alleviate untold suffering, Professor Travis suggests the establishment of a reparations regime predicated on oil revenues. Travis asserts that oil companies have directly “provided extensive financial and logistical assistance to the Sudanese government” regarding the on-going genocide. Whether reparations serve justice is an open question. The issue was much debated in Israel when then-Prime Minister David Ben-Gurion agreed to accept reparations from West Germany in the 1950’s. Whether reparations adequately compensate or make communities whole is doubtful. What is, however, of particular importance in the context of a practical application of global justice is that private actors (multi-national oil companies) compensate civilian populations for their displacement, much less the genocide to which the companies have been parties. We move from one practical dilemma to another: E.L. Gaston’s Note “Mercenarism 2.0? The Rise of the Modern Private Security Industry and its Implications for International Humanitarian Law Enforcement” raises an issue of the utmost importance with respect to the wars in Iraq and Afghanistan. As has been thoroughly documented by the media and discussed before the US Congress, private contractors in Iraq are literally an army unto themselves, beholden to no one, separate from command influence and discipline. Precisely in order to overcome the enormous problems with private contractors such as Blackwater, Gaston recommends that an International Humanitarian Law principle be created that “recognizes and regulates state use of private military and security companies” (PMSC). Gaston correctly argues that such a principle would establish state accountability, monitoring and liability with respect to PMSC’s. Unless directly addressed by the creation of accountability and liability principles, contractors’ abuses will continue unabated. TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008

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The significance of Gaston’s article is not only in proposing a concrete measure intended to address a significant problem but in understanding that global justice encompasses the actions of private actors acting on behalf of the nation-state. In recommending that practical measures be taken to reign-in otherwise uncontrolled actors, Gaston correctly identifies both tangible (abuse) and intangible (image perception) problems that ultimately points to the nation-state that has contracted with private parties. By applying international humanitarian principles to private actors, the ability of the contracting state to hide behind the cloak of “private actions” would be significantly minimized. Indeed, how can the US’s “hearts and minds” efforts in Iraq and Afghanistan be philosophically united with abuses committed on behalf of the US? The question, as articulated by Gaston, is one of state responsibility. This viewpoint, if applied as policy, would facilitate development of a paradigm appropriate to balancing the contemporary battlefield against deep and justified concerns about humanitarian responsibilities. Gaston’s article formulates a workable paradigm seeking to address this largely unresolved reality. Professor Karima Bennoune discusses another unresolved issue that should have been shelved long ago: torture. One would have thought that in 2009, an article on torture in this volume would be superfluous. Professor Bennoune’s article “Terror/ Torture” eloquently argues for a re-structuring of the national security-human rights balancing discussion by emphasizing that “international human rights law protects the individual both from terrorism and the excesses of counter-terrorism, like torture.” Underlying Bennoune’s theory is her view that international human rights law must protect the individual from both torture and terror, as the two are inherently interlocked. In making a “packaged” argument, Bennoune articulates a “holistic” approach in seeking to understand—and ultimately prevent—both torture and terrorism. Highlighting the price paid by democracies which engage in torture, Bennoune correctly argues that justifications undermining the rule of law are best characterized as “tortured legal arguments.” However, in the holistic paradigm that serves as the philosophical underpinning for the article, Bennoune does not deny the state’s right to engage in counter-terrorism. In this vein, Bennoune argues that Muslim fundamental groups present a particular threat to human rights. While rightly concerned about “Islamophobia,” Bennoune calls on counter-terrorism policymakers to understand the context of the threat posed to the state. After all, counterterrorism is a response to terrorism and it is critical that the particular/specific threat be clearly—albeit cautiously—identified. The implication is that by doing so the harm to non-threats would be significantly minimized. Professor Bennoune rejects various proposals predicated on “torture warrants” and exceptions based on “ticking time bomb” scenarios. However, in the same vein—in

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accordance with her holistic argument—Bennoune argues that terrorism is a violation of human rights. While admittedly an unusual perspective for a self-defined human rights lawyer, Bennoune’s argument suggests that terrorists are violating the basic human rights of innocent individuals. In doing so, Bennoune posits that nonstate actors (terrorists) are legally capable of violating human rights. Rather than applying the traditionally accepted model that only states are liable for international law violations, Bennoune joins Travis and Gaston in arguing that liability must be extended to non-state actors. While arguing that both terrorism and torture are equally repugnant the importance of Bennoune’s article in the global justice paradigm is two-fold: 1) articulating that terrorism is a human rights violation and 2) increasing the scope of culpability to include non-state actors. Furthermore, and no less important, is Professor Bennoune’s clarion call regarding the absolute illegality of torture. If in this introduction I have discussed terrorism, the time has come to address terrorists or at least, to gain a better understanding of the motivations, goals and psyche of the terrorist. Whether the cause is political, social, economic or religious, understanding terrorism and subsequently developing a valid, viable and effective counter-terrorism policy requires that we understand the actor. Discussing global justice requires examining and analyzing the specific actor. LT. COL. William Casebeer’s article “Identity, Culture and Stories: Empathy and the War on Terrorism” forcefully argues that counter-terrorism strategy would “benefit from a comprehensive consideration of the stories terrorists tell.” In articulating the importance of “stories,” Casebeer suggests that understanding terrorists requires understanding their narrative. It has long been argued that an important aspect of counter-terrorism is the “battle of the narrative”; that is, that each side has its tale to tell. Casebeer’s fundamental thesis is akin to this theory in arguing that stories describe the life-cycle of an organization and its myths. Casebeer suggests that Bin Laden portrays himself as following in the Prophet Muhammad’s footsteps by “making a heroic trip, struggling against great odds, in a way that makes him almost as mythic in stature.” The story/myth that Bin Laden chooses to develop is essential to his power and mystique. Essential to the story is the concept of “struggle”; without struggle there is no renewal, which is based both on participation and victory. The struggle between two diametrically opposed entities, representing qualitatively different forces is essential to the story. Bin Laden’s ability to define the myth (including his own) is paramount to understanding the willingness of others to follow. If Bin Laden is Muhammad’s follower, then those aligned with Bin Laden are similarly following the Prophet. Casebeer addresses the issue of how a state should counter the terrorist narrative. If, as suggested above, the battle of the narrative is essential to understanding counterterrorism, then the state must respond. To that end, Casebeer suggests that the state develop “grand narratives” while maintaining flexibility and adaptability in how the story is told. To do so effectively requires an understanding of the terrorist TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008

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narrative because otherwise the response story will more likely than not be ineffective. In proposing a three part analysis: “the relationship between narratives, the development of identity and the presence of empathy,” Casebeer clearly provides the contours by which we can seek to understand terrorist motivations. In a similar vein, Professor Jerry Piven’s article “Psychological, Theological and Thanatological Aspects of Suicidal Terrorism” addresses the psychological motivations of individuals who “destroy themselves and others in the name of God.” While there is active debate amongst academics and policy makers as to the centrality of religion as a terrorist motivator there is little disagreement that religious extremism is a prime motivator. In seeking to understand and explain the motivations of suicide bombers, Professor Piven correctly reminds us that the actors come from different regimes, cultures, nations and organizations. In so doing, Piven suggests that there are multiple factors that must be examined. Piven heavily emphasizes the fact that terrorists are not uniformly subject to mental illness. The widespread assumption that all terrorists are crazy is a fundamentally flawed approach to the question of terrorist motivation. Piven argues that the terrorist’s violent act be perceived from the perspective of response. That is, a response to the “self-loathing, humiliation and abjection” to which the individual actor is subjected by those whom he is killing. To that end, by committing an act of suicide terrorism, the individual is “transcending death” and, in essence, engaging in life and re-birth. For the religious-based suicide bomber, the act takes on greater significance as glorification of God adds an additional, critical element. Not only is the actor transcending death but his (or her) actions are done for a higher purpose—love of God and eternal Paradise. By addressing the motivation from theological and psychological perspectives alike, Piven suggests that a dual-headed analysis is most appropriate. The significance of the article lies in Professor Piven’s stated commitment to not be judgmental of the actor; rather, he seeks only to explain. Piven’s article is a major contribution to the motivational discussion. Ms. Hallie Ludson’s “Relational Rights Masquerading as Individual Rights” article addresses the tension between women’s rights and religious law. In particular, Ms. Ludson suggests that constitutional protection for religious rights dramatically affects the rights of women. If religious rights are protected the requisite follow-up question is at what expense and to whom. According to Ludson, women pay the cost for such religious rights. In societies that adopt relational rights—those rights which an individual can exercise solely with the permission of someone with whom they have a relation—women suffer a great disadvantage. In the relational rights paradigm, women’s rights are subjected in an imbalanced manner to the rights of men and the family. Ludson suggests returning to government—rather than religion or family/clan—all aspects of governance. In doing so, the rights of the individual would be paramount and women would not be subjugated to religious or family (male) decision making. Making this change requires the drafting of

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national constitutions (Ludson highlights Iraq and Afghanistan) that preserve personal status law. Ludson’s article, similar to Gaston’s and Travis’s, reflects an expansive view of global justice by addressing non-state issues and in particular responsibilities and obligations (including liabilities) that arguably must be imposed on the non-state actor. However, Ludson makes an additional point: to ensure the rights of the individual (women), the state must take precedence over the non-state actor (family/clan). The danger is clear, as unprotected women in the societies Ludson references are at risk of harm from family members. From here we take a sharp turn in the direction of the environment and energy. While these are not, perhaps, issues ‘automatically’ associated with global justice, I would suggest—based on thoughtful responses to last year’s edition—that the environment and energy are directly related to global justice. Furthermore, I would add—thinking ahead to next year’s edition—that the economy is similarly an issue that fits under the umbrella of global justice. Suggesting that the three “e’s” (environment, energy and economy) are essential to an understanding of global justice illustrates the inter-disciplinary essence of the term. While addressing torture is essential to understanding operational counterterrorism, analyzing man’s impact on the environment is critical to understanding how cultures live. Addressing energy issues enhances our understanding of the relationship between development and resource protection. Understanding the economy—particularly in a time of crises—facilitates our understanding of how governments allocate shrinking resources. Analyzing prioritization decisions is essential to understanding the nature of government. Expansiveness in defining global justice will be this series’ operational guide. Professor Ronald Rosenberg’s article “Diversifying America’s Energy Future: The Future of Renewable Wind Power” draws a clear connection between the economy, energy and national security. This link highlights the inevitable integration of different disciplines that, perhaps, are the essence of global justice. There is, according to Rosenberg, a crucial (and chronic) need for alternative energy sources, given the energy-related problems including price, geo-political considerations and adverse environmental affects. Rosenberg suggests wind power as a form of renewable energy. In addition, Professor Rosenberg asks the fundamental question: how and when will the US change its “electrical energy portfolio to respond to evolving energy realities”? Given the extraordinary dependence on foreign energy sources, the question posed by Rosenberg is of the utmost importance. According to Professor Rosenberg, energy-based wind power would have significant environmental and economic benefits for the US and the world. To that extent, Rosenberg notes that European countries have begun utilizing wind power. According to Rosenberg, a cost-benefit analysis clearly suggests that adopting wind power as an alternative energy source serves long-term American economic and security interests. The national security ramifications are significant; fewer financial resources

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available to the federal government would suggest difficult decision making for President Obama in the traditional guns-butter debate. The traditional policy of not creating alternative energy sources has the potential—ultimately—both of being a significant diluter of federal resources and a continued source of instability. In a closely researched, detailed analysis, Rosenberg forcefully advocates for wind power and demonstrates the relative ease with which the proposal could be implemented. The importance of his proposal is magnified when considered in the context of the issues addressed throughout this volume. If an overabundance of scarce resources is expended on wasteful energy policy, fewer funds will be available to address other aspects of global justice. If, to date, the executive branch (regardless of party affiliation) has failed to develop an effective alternative energy policy President Obama would be wise to heed both Professor Blomquist’s sage advice (on the need to imitate Lincoln’s modesty) and Professor Rosenberg’s highly developed, practical recommendation.6 In “Environmental Cooperation in the (Partially) Disaggregated State: Lessons from the Security and Prosperity Relationship of North America” Professors Craik and DiMento address the “Security and Prosperity Partnership of North America (SPP),” a “trilateral (US, Canada, Mexico) initiative that has as its objective enhanced regulatory cooperation between the three North American states in order to improve continental security and regional competitiveness.” Craik and DiMento argue that an agreement of this nature, predicated on direct contact amongst regulatory agencies of the three countries rather than between central agencies (State Department) of the states reflects a “new world order.” In essence, the SPP constitutes a “transgovernmental network” that enables genuine governance on a wide array of issues. This model facilitates cutting edge, professional cooperation amongst expertise-specific agencies. While minimizing the role of ‘central’ government, the proposed benefits derive from direct and transgovernmental networks predicated on institutionalized contact between experts, outweighing concerns regarding the re-articulation of state-state relationships. The resulting ability of subject matter experts to not only engage in dialogue but to seek and resolve issue-specific dilemmas would allow for innovative problemsolving. The article is of particular relevance to the project this series represents. Rather than addressing global justice from a theoretical, academic perspective only, this series seeks to provide the reader with a wide range of articles, theoretical and practical alike, written by academics and non-academics alike. It is my continued hope that succeeding volumes will provide an extraordinary platform—thanks to Oxford University Press and to the dedicated students at the S.J. Quinney College of Law, The University of Utah—for those committed to furthering the cause of global justice.

6

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For a fuller discussion regarding Presidential power please see Scott Matheson’s Presidential Constitutionalism in Perilous Times (Harvard University Press, 2009). TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008

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Final word: it is a great honor and rare privilege to be the editor of this series; more than that, it has been an extraordinary pleasure to work with Rich Roberts (2007 volume) and with Artemis Vamianakis on this volume. Their leadership and effort deserve the highest praise. They have set a very high bar. I am already looking forward to next year’s volume.

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INTERNATIONAL STANDARDS FOR DETAINING TERRORISM SUSPECTS: MOVING BEYOND THE ARMED CONFLICT-CRIMINAL DIVIDE Monica Hakimi†

Copyright © 2008 Yale Journal of International Law, Inc.; Monica Hakimi Originally published in Yale Journal of International Law (Summer 2008)

I. INTRODUCTION Although sometimes described as war, the fight against transnational jihadi groups (referred to for shorthand as the “fight against terrorism”) largely takes place away from any recognizable battlefield. Terrorism suspects are captured in houses, on street corners, and at border crossings around the globe. Khalid Shaikh Mohammed, the high-level Qaeda operative who planned the September 11 attacks, was captured by the Pakistani government in a residence in Pakistan.1 Abu Omar, a radical Muslim imam, was apparently abducted by U.S. and Italian agents off the streets of Milan.2 And Abu Baker Bashir, the spiritual leader of the Qaeda-affiliated group responsible for the 2002 Bali bombings, was arrested in a hospital in Indonesia.3 Once captured, these suspects face a host of possible futures: they might be deported to their states of nationality; they might be criminally prosecuted for offenses under national law; they might be transferred to a foreign state for detention and interrogation; or they might be detained for extended periods in national detention facilities, like the U.S. facility at Guantánamo Bay, Cuba.

†

Visiting Assistant Professor of Law, Benjamin N. Cardozo School of Law. The author is on leave from the Office of the Legal Adviser of the U.S. Department of State. The views expressed in this Article are the author’s own and not necessarily those of the U.S. Department of State or the U.S. government. Thanks to John B. Bellinger, III, David Carlson, Jacob Cogan, Malvina Halberstam, Vijay Padmanabhan, Jedediah Purdy, Michael Reisman, Gabor Rona, Robert Sloane, Brian Willen, the participants in the Yale Law School Human Rights Workshop, and the participants in the Cardozo Faculty Workshops for helpful comments on earlier drafts; and to Kevin Browning for excellent research assistance.

1

See Erik Eckholm & David Johnston, Qaeda Suspect Sound Asleep at Trail’s End, N.Y. Times, Mar. 3, 2003, at A1.

2

See Richard Owen, CIA Agents Must Be Charged Over “Kidnap and Torture,” Says Judge, Times (U.K.), Feb. 17, 2007, at 39.

3

See Dinda Jouhana & Richard C. Paddock, Top Indonesian Suspect Leaves Jail, L.A. Times, June 14, 2006, at A21, available at 2006 WLNR 10159088; Richard Paddock, Indonesia Arrests Cleric in Bombings, L.A. Times, Oct. 20, 2002, at A3.

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From an international legal perspective, the critical question with respect to terrorism suspects who are not captured on a recognizable battlefield (referred to here as “non-battlefield detainees”) is whether they have any rights not available to detainees picked up in a theater of combat. Much of the legal discussion on terrorism detainees has uncritically lumped non-battlefield detainees together with those captured on a recognizable battlefield, but the context of the capture is significant. International law historically differentiates between detentions that occur in states at peace and those that occur during war. In peacetime, international human rights law imposes procedural and substantive constraints on a state’s authority to detain. For instance, any detention must be grounded in law, must not be arbitrary, and must be subject to judicial review.4 In wartime, the law of armed conflict generally applies as the lex specialis and permits states to detain persons reasonably suspected of threatening state security, without affording them judicial guarantees.5 That expansive authority to detain reflects the understanding that, during war, the balance between security and liberty shifts. The state’s security interests become paramount, so the liberty costs of detaining and thereby incapacitating the enemy are tolerated. Since the September 11 terrorist attacks, two dominant strands of thought have emerged on the international law that governs non-battlefield detentions. One strand asserts that states are at war with al Qaeda and other transnational jihadi groups, and that the law of armed conflict thus applies to permit the detention of terrorism suspects captured anywhere in the world for as long as necessary or until “hostilities” cease.6 The poster child for this position is Khalid Shaikh 4

See infra Section II.C.

5

See infra Section II.B.

6

See, e.g., Thomas Hemingway, Wartime Detention of Enemy Combatants: What If There Were a War and No One Could Be Detained Without an Attorney?, 34 Denv. J. Int’l L. & Pol’y 63 (2006) (applying the law of armed conflict to the detention of terrorism suspects and not distinguishing between suspects captured on or off the battlefield); John B. Bellinger, III, Legal Advisor to the U.S. Dep’t of State, Legal Issues in the War on Terrorism, Speech at the London School of Economics 7–8 (Oct. 31, 2006) [hereinafter Bellinger Speech], available at http://www.lse.ac.uk/collections/LSEPublicLecturesandEvents/pdf/20061031_ JohnBellinger.pdf (“Al Qaida’s operations against the United States and its allies continue not only in and around Afghanistan but also in other parts of the world. And because we remain in a continued state of armed conflict with al Qaida, we are legally justified in continuing to detain al Qaida members captured in this conflict.”); Press Release, U.S. Dep’t of State, Remarks of Secretary Condoleezza Rice upon Her Departure for Europe (Dec. 5, 2005), available at http://www.state.gov/secretary/rm/2005/57602.htm; John B. Bellinger, III, Armed Conflict with Al Qaida?, Opiniojuris, Jan. 15, 2007, http://www.opiniojuris.org/posts/1168811565. shtml. The U.S. government’s position on obtaining custody over detainees appears to have evolved. The U.S. government no longer asserts that it has the authority to use its coercive powers to capture suspects all over the world without the consent of the territorial state. See Bellinger Speech, supra, at 10–11. Nevertheless, the U.S. government continues to assert the authority to detain, based on the law of armed conflict, non-battlefield suspects who find themselves in U.S. hands.

2

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Mohammed, who the U.S. government first detained at a secret prison operated by the CIA, and then at Guantánamo Bay.7 Khalid Shaikh Mohammed views himself as a soldier fighting a war against the United States and its allies.8 And by U.S. government accounts, his detention and the detention of other high-level terrorist operatives have been invaluable to preventing terrorist attacks and saving innocent lives.9 Like armed-conflict detentions, then, counterterrorism detentions are not necessarily intended to punish for prior wrongdoing,10 but to prevent terrorist operatives from planning or engaging in further attacks and, if possible, to obtain from them information for use in future military, intelligence, or law enforcement operations. Advocates of the armed-conflict approach assert that these goals cannot always be achieved through the criminal process.11 The second, competing strand of thought rejects the application of the law of armed conflict and asserts that international human rights law applies to prohibit the detention of non-battlefield suspects except through the criminal process.12 Advocates of this position point to the inadequacy of the controls under the law of 7

See Eckholm & Johnston, supra note 1; Mark Mazzetti, Pentagon Revises Its Rules on Prosecution of Terrorists, N.Y. Times, Jan. 19, 2007, at A18.

8

See Verbatim Transcript of Combatant Status Review Tribunal Hearing for ISN 10024, at 21, Mar. 10, 2007, available at http://www.defenselink.mil/news/transcript_ISN10024.pdf (transcript of Khalid Shaikh Mohammed’s hearing at Guantánamo Bay); see also Mark Mazzetti & Margot Williams, In Tribunal Statement, Confessed Plotter of Sept. 11 Burnishes Image as a Soldier, N.Y. Times, Mar. 16, 2007, at A15.

9

See George W. Bush, President of the U.S., President Discusses Creation of Military Commissions to Try Suspected Terrorists (Sept. 6, 2006) [hereinafter President’s Speech on Military Commissions], available at http://www.whitehouse.gov/news/releases/2006/09/ 20060906-3.html (describing the CIA detention program as “one of the most vital tools in our war against the terrorists”).

10

International and U.S. law both recognize that detention on the grounds of danger to the community is not always punitive. For the international law, see Subsection II.C.2. For a distillation of U.S. law, see U.S. v. Salerno, 481 U.S. 739, 748–49 (1987).

11

See, e.g., George Tenet, At the Center of the Storm: My Years at the CIA 255 (2007) (“I believe that none of these successes would have happened if we had to treat KSM [Khalid Shaikh Mohammed] like a white-collar criminal—read him his Miranda rights and get him a lawyer who surely would have insisted that his client shut up.”).

12

See, e.g., Joan Fitzpatrick, Sovereignty, Territoriality and the Rule of Law, 25 Hastings Int’l & Comp. L. Rev. 303, 303–04 (2002) (asserting that the United States has pursued “a highly problematic armed conflict alternative to the criminal law paradigm, which is readily available to combat terrorist acts and threats”); Avril McDonald, Terrorism, Counter-Terrorism, and the Jus in Bello, in Terrorism and International Law: Challenges and Responses 57, 62 (Michael N. Schmitt & Gian Luca Beruto eds., 2002) (“Al Qaeda and other terrorist organizations must be defeated for the most part by detection (good intelligence) and by prosecution . . . under domestic criminal legislation.”); David Weissbrodt & Amy Bergquist, Extraordinary Rendition: A Human Rights Analysis, 19 Harv. Hum. Rts. J. 123, 136 (2006) (arguing that the detention of non-battlefield terrorism suspects not formally convicted of a crime violates human rights law); Michael Ratner, Letter to the Editor, N.Y. Times,

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armed conflict, to the very real possibility that detainees will be held for life without legal process, and to the known incidents of mistake. Individuals wrongfully suspected of terrorism have been captured in the course of their everyday lives and then detained for extended periods without any judicial oversight, and often without communication with the outside world. In one case, a German national (named Khaled el-Masri) was arrested by Macedonian officials, transferred to the CIA for detention and interrogation, and then released five months later in rural Albania after U.S. officials determined that he had been mistakenly identified as a terrorism suspect.13 This and similar cases demonstrate the problem with applying the law of armed conflict without sufficient checks and in the absence of any geographic or temporal constraints: it comes to displace human rights law, such that anyone who is merely suspected of terrorism may be picked up anywhere in the world and detained indefinitely, without judicial guarantees.14 The criminal process, by contrast, is a fair and transparent mechanism for determining that those who are suspected of terrorism are in fact dangerous, based on their prior conduct. This debate is important, but it has become both sterile and divorced from reality. In fact, neither strand of thought tracks international law and practice. International human rights law recognizes that, even in peacetime, those who threaten state security may be detained outside the criminal process and instead through calibrated systems of administrative detention. The option of administrative detention, however, has been neglected in the international legal debate on non-battlefield detentions.15 This has been to our detriment. International practice demonstrates that states–and particularly western democracies that take seriously their human rights obligations, but also face a real threat from transnational jihadi terrorism– perceive an occasional but serious need to detain non-battlefield terrorism suspects July 15, 2007, at A12 (“No domestic or international law permits preventative detention [in the fight against terrorism].”). 13

See Council of Eur., Comm. on Legal Affairs and Human Rights, Alleged Secret Detentions and Unlawful Inter-State Transfers of Detainees Involving Council of Europe Member States, at 25–29, Eur. Parl. Doc. 10957 ( June 12, 2006) (prepared by Dick Marty) [hereinafter COE Report]; Neil A. Lewis, Man Mistakenly Abducted by CIA Seeks Reinstatement of Suit, N.Y. Times, Nov. 29, 2006, at A15.

14

Cf. Rosa Ehrenreich Brooks, War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age of Terror, 153 U. Pa. L. Rev. 675 (2004) (describing the blurring of boundaries between war and peace in the fight against terrorism); Steven Ratner, Are the Geneva Conventions Out of Date?, 48 L. Quadrangle Notes 66, 70 (2005) (“The conflict with Al Qaeda needs to have boundaries beyond which the . . . law of war . . . do[es] not apply.”).

15

Although neglected in the international legal debate, U.S. lawyers have begun advocating for the United States to detain terrorism suspects administratively. See, e.g., Benjamin Wittes, Terrorism, the Military, and the Courts, 143 Pol’y Rev. 21 (2007); Jack Goldsmith & Neal Katyal, Op- Ed., The Terrorists’ Court, N.Y. Times, July 11, 2007, at A19; Michael Mukasey, Editorial, Jose Padilla Makes Bad Law, Wall St. J., Aug. 22, 2007, at A15; Stuart Taylor, Terrorism Suspects and the Law, Nat’l J., May 12, 2007, at 17; George J. Terwilliger, III, “Domestic Unlawful Combatants”: A Proposal to Adjudicate Constitutional Detentions, Engage, Oct. 2006, at 55.

4

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outside the criminal process. In the absence of a clear legal framework for satisfying that need, these states have resorted to a variety of ad hoc or uncontrolled measures. Thus, although all western democracies continue to rely heavily on the criminal process to prosecute and detain non-battlefield suspects,16 many have also acted outside that process. The bipolar paradigm for thinking about non-battlefield detentions–as armed-conflict or criminal–fails to reflect international law and is increasingly out of step with international practice. This Article takes that international practice seriously in order to move the conversation beyond the stale armed-conflict or criminal divide. Part II reviews the current debate and argues that international law actually presents us with three–not two–broad models for detention in the fight against terrorism: the armed-conflict model and, under human rights law, the criminal and administrative models. Part II demonstrates that international law is ambiguous as to which of these three models properly governs non-battlefield detentions, but that both the armedconflict model and exclusive reliance on the criminal model carry significant costs. Administrative detention thus is a potentially appealing alternative for incapacitating non-battlefield suspects before they strike. Part III, however, argues that the legal parameters of administrative detention are poorly developed or unworkable in the security context. This renders administrative detention insufficiently constrained and easily subject to abuse. Indeed, several states have resorted to administrative detention in the fight against terrorism and have failed to administer adequate controls. States have also engaged in other, even less palatable measures. The United States consistently has asserted the authority to detain non-battlefield suspects based on the law of armed conflict, and even though most other states publicly reject that practice, several have discreetly participated in it.17 Several have also sought to deport terrorism suspects, despite the risk of mistreatment in their home countries, in order to reduce the more proximate threat these suspects pose in the deporting states’ own territories.18 Part IV 16

For a sample of cases in which the United States has criminally prosecuted non-battlefield suspects, see United States v. Siraj, 468 F. Supp. 2d 408, 413–14 (E.D.N.Y. 2007), concerning a conspiracy to bomb a New York City subway station; United States v. Ali, 396 F. Supp. 2d 703 (E.D.N.Y. 2005), concerning membership in al Qaeda and participation in a plan to carry out terrorist attacks in the United States); and Ralph Blumenthal, American Said to Have Ties to Al Qaeda Is Denied Bail, N.Y. Times, Feb. 22, 2007, at A20, reporting that at least fifteen Americans have been charged with aiding al Qaeda. For examples in other western democracies, see Colin Warbrick, The European Response to Terrorism in an Age of Human Rights, 15 Eur. J. Int’l L. 989 (2004) (Europe); Alan Cowell, British Antiterrorism Chief Warns of More Severe Qaeda Attacks, N.Y. Times, Apr. 26, 2007, at A5 (United Kingdom); Renwick McLean, Trial Opens in Madrid for 24 Accused of Aiding Qaeda Cell, N.Y. Times, Apr. 23, 2005, at A10 (Spain); Elaine Sciolino & Helene Fouquet, Belgium Is Trying to Unravel the Threads of a Terror Web, N.Y. Times, Oct. 10, 2005, at A1 (Belgium); and Craig S. Smith, 6 Former Guantánamo Detainees on Trial in Paris, N.Y. Times, July 4, 2006, at A8 (France).

17

See infra Sections III.A, III.B.

18

See infra Section III.B.

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reviews that practice to demonstrate that states perceive a real need to contain the threat from non-battlefield suspects without resort to the criminal process, and that they have employed a range of ad hoc or uncontrolled measures to satisfy that need. In light of that practice, Part V argues that international law should continue to allow states to detain non-battlefield suspects outside the criminal process, but that it must better regulate such detention to protect against abuse. The oft-overlooked administrative model is best suited to accomplish these goals, if the law on administrative detention is developed to better balance the liberty and security interests as they arise in the fight against terrorism. Toward that end, Part V outlines four policy goals to inform the development of law in this area. First, detainees must be afforded prompt and meaningful legal process. Second, extended administrative detention should be permitted only in narrowly defined circumstances: where the detainee himself poses a serious security threat, where detention is necessary to contain that threat, and where detention lasts no longer than necessary. Third, in those circumstances, security-based administrative detention should be permitted even if not tied to other legal proceedings, such as future criminal charges or deportation. And finally, any state that employs a system of administrative detention must define the boundaries between it and the criminal process. With these constraints in place, administrative detention may prove an effective way to navigate between the at times opposing shoals of liberty and security that make the legal response to non-battlefield detention at once so vexing and so vital. Before proceeding with that argument, three clarifying points are in order. First, it is important to establish at the outset the parameters of each of the three models for detention examined in this Article. The armed-conflict model broadly permits detention, without judicial guarantees, until the circumstances justifying it cease to exist. As this Article explains in Section II.B, the law of armed conflict is, in fact, more nuanced. It recognizes different detention regimes, depending on whether the conflict is international or non-international, and if the former, whether the detainee is a combatant or a civilian. Nevertheless, the broad strokes of the armedconflict model (as just described) are constant across the various detention regimes.19 The criminal model, by contrast, is more restrictive. It permits detention in essentially two circumstances: (1) where the person has been charged with a criminal offense and is awaiting a criminal adjudication; and (2) where the person is being punished after a criminal conviction. This Article acknowledges that other forms of detention may also be used to advance the interests of the criminal process–for instance, to prevent flight before filing criminal charges, or to preserve a material

19

6

Note that detentions based on the armed-conflict model may nevertheless be inconsistent with particular aspects of the law of armed conflict. The purpose of this Article is not to condemn such inconsistencies, but rather to examine the antecedent question of whether the armedconflict model is even a suitable one for non-battlefield detentions. TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008

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witness for use during a criminal trial.20 Yet it does not understand those forms of detention to be “through” the criminal process or under the criminal model. To the contrary, such detention is understood to be administrative. Generally speaking, the administrative model encompasses detentions designed to satisfy strong public interests other than punishment or condemnation for proscribed, prior conduct. Second, this Article addresses the legal standards that govern detention itself, and not the conditions of confinement or the treatment of detainees. Those latter issues have been addressed comprehensively in the legal literature,21 and this Article assumes that, under all models of detention, controls may be established (consistent with the applicable legal prescriptions) to protect detainees against mistreatment. Finally, this Article focuses on the detention options available to states that are targeted by transnational jihadi groups like al Qaeda.22 That focus is appropriate because, as explained in Part II, the fight against such groups has attributes of an armed conflict that justify the use of detention options outside the criminal process, but also attributes that make it unlike other armed conflicts, and that render inadequate the detention options under the law of armed conflict. Despite the particular focus on transnational jihadi groups, however, this Article has obvious implications for states seeking to detain members of other kinds of terrorist or insurgent groups. Whether security-based administrative detention is justifiable in those other contexts ultimately depends on the nature of the fight and the security threat posed. In order for such detention to be viable, however, its parameters must be refined. II. A TRIPOLAR PARADIGM International lawyers have vigorously debated which legal regime–the law of armed conflict or human rights law-governs measures taken in the fight against terrorism. The focal point of debate has been whether terrorist acts and the varied counterterrorism measures taken in response may properly be characterized as an “armed conflict” so as to trigger the application of the law of armed conflict. If we are

20

See, e.g., 18 U.S.C. § 3144 (2000) (U.S. material witness statute); United States v. Awadallah, 349 F.3d 42 (2d Cir. 2003) (interpreting the material witness statute to permit the detention of witnesses for criminal proceedings relating to the September 11 attacks).

21

See, e.g., David E. Graham, The Treatment and Interrogation of Prisoners of War and Detainees, 37 Geo. J. Int’l L. 61 (2005); Jordan J. Paust, Executive Plans and Authorizations to Violate International Law Concerning Treatment and Interrogation of Detainees, 43 Colum. J. Transnat’l L. 811 (2005); Jack Balkin, The Anti-Torture Memos, Balkinization, Dec. 22, 2006, http://balkin.blogspot.com/2006/12/anti-torture-memos.html (compilation of posts on civil liberties in the so-called “War on Terror”).

22

For a coded map of countries recently attacked by such groups, see World Under Fire, Radical Islamic Incidents Across the World, http://www.worldunderfire.com (last visited March 31, 2008).

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engaged in a global armed conflict against transnational jihadi groups, then (the reasoning goes) the law of armed conflict governs all or most measures that target such groups, including the detention of non-battlefield terrorism suspects.23 By contrast, if we are not engaged in a global armed conflict, then the law of armed conflict applies only in those regions where hostilities remain ongoing, and human rights law applies without specification everywhere else (i.e., to all detentions taken outside a theater of combat).24 The predominant assumption is that, where human rights law applies, it permits detention only through the criminal process.25 This Part of the Article argues that international law is indeterminate on the question of whether the fight against terrorism constitutes an armed conflict, and that the focus on that question has obscured more fundamental questions concerning the suitability of the existing legal regimes to govern particular counterterrorism measures.26 In the context of non-battlefield detentions, international law

23

For general arguments that the law of armed conflict governs, see, for example, Oren Gross & Fionnuala Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice 389–93 (2006); and Derek Jinks, The Applicability of the Geneva Conventions to the “Global War on Terrorism,” 46 Va. J. Int’l L. 165, 169 (2005), concluding that the law of armed conflict governs “some aspects of the GWOT.” For arguments that the law of armed conflict governs the detention of non-battlefield terrorism suspects, see sources cited supra note 6.

24

For general arguments that the law of armed conflict does not govern, see, for example, Mary Ellen O’Connell, The Legal Case Against the Global War on Terror, 36 Case W. Res. J. Int’l L. 349, 350 (2004); and Jordan J. Paust, Antiterrorism Military Commissions: Courting Illegality, 23 Mich. J. Int’l L. 1, 8 n.16 (2001).

25

See sources cited supra note 12. For evidence that this bipolar paradigm exists, see, for example, Sean O. Murphy, Evolving Geneva Convention Paradigms in the “War on Terrorism”: Applying the Core Rules to the Release of Persons Deemed “Unprivileged Combatants,” 75 Geo. Wash. L. Rev. 1105, 1151, which states that “if al Qaeda suspects picked up in places other than the battlefield . . . are not regarded as combatants under the laws of war, then they . . . could be arrested and tried in regular courts for transnational crime, or they could be closely monitored by law enforcement authorities”; and Int’l Comm. of the Red Cross, US Detention Related to the Events of 11 September 2001 and Its Aftermath—the Role of the ICRC, (Sept. 5, 2006), http://www.icrc.org/ Web/Eng/siteeng0.nsf/iwpList74/85C5BCF85E7A57A4C12570D500 2E6889, stating that, “There are currently two broad strands of legal thinking: according to one, detainees in the ‘global war on terror’ are all criminal suspects and should be treated as such. According to the other, they are all prisoners of war and should be treated as such.”

26

Some scholars have argued that the existing legal regimes are insufficient in the fight against terrorism and that the international community must therefore develop new rules to govern that fight. See, e.g., Rosa Brooks, Protecting Rights in the Age of Terrorism: Challenges and Opportunities, 36 Geo. J. Int’l L. 669, 677–78 (2005); Glenn M. Sulmasy, The Law of Armed Conflict in the Global War on Terror: International Lawyers Fighting the Last War, 19 Notre Dame J.L. Ethics & Pub. Pol’y 309, 314 (2005). But see Gabor Rona, Legal Frameworks to Combat Terrorism: An Abundant Inventory of Existing Tools, 5 Chi. J. Int’l L. 499, 499 (2005) (“[W]e should be skeptical of the view that the complementary frameworks of criminal law, human rights law, the web of multilateral and bilateral arrangements for interstate cooperation in police work and judicial assistance, and the law of armed conflict fail to provide tools

8

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offers three–not two–broad models for detention: the armed-conflict model, and under human rights law, the criminal and administrative models. Neither the armed-conflict model nor the criminal model is particularly well-suited for such detentions, so administrative detention is a potentially appealing alternative. Its appeal, however, depends largely on how it is implemented–a question to which this Article turns in Part III. A. Armed Conflict? International law provides no clear guidance on when, in the absence of sustained interstate hostilities, an “armed conflict” exists so as to trigger the application of the law of armed conflict.27 Under international law, the existence of an armed conflict turns on a qualitative assessment of: (1) the participants’ own understandings and intentions; (2) their level of organization; and (3) the intensity and duration of the violence.28 This test is indeterminate in the fight against terrorism. That fight certainly has some attributes of an armed conflict. Participants have been engaged in “hot” zones of combat for over six years, and at least two participants– al Qaeda and the United States–understand themselves to be at war with each other.29 In addition, terrorist attacks have the potential for extraordinary violence,

necessary to combat terrorism.”). These scholars, however, have not addressed the particular context of non-battlefield detentions and have not attempted to specify the rules that should govern in this area. 27

See Lindsay Moir, The Law of Internal Armed Conflict 31–34 (2002).

28

See, e.g., Prosecutor v. Tadic, Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 70 (Oct. 2, 1995) (asserting that an “armed conflict exists whenever there is . . . protracted armed violence between governmental authorities and organized armed groups”); Michael Bothe, Karl Josef Partsch & Waldemar A. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, at 628 n.9 (1982) (quoting ICRC understandings that armed conflicts do not include riots “not directed by a leader and hav[ing] no concerted intent,” but do include “military operations carried out by armed forces or organized armed groups”); Theodor Meron, Human Rights in International Strife: Their International Protection 76 (1987) (explaining that armed conflicts are distinguished from mere internal tensions and disturbances based on the level of organization of the actors, their intent, and the duration and intensity of the conflict).

29

See, e.g., Bin Laden Still Alive, Aide Says, Wash. Post, Dec. 7, 2005, at A20 (reporting on an al Qaeda statement that it is still engaged in a war against the West); Selig S. Harrison, A New Hub for Terrorism? In Bangladesh, an Islamic Movement with Al-Qaeda Ties Is on the Rise, Wash. Post, Aug. 2, 2006, at A15 (referring to Osama Bin Laden’s first declaration of war against the United States, made on February 23, 1998); Press Release, U.S. Dep’t of Def., DOD Responds to ABA Enemy Combatant Report (Oct. 2, 2002), available at http://www. defenselink.mil/Releases/Release.aspx?ReleaseID=3492 (asserting that “the United States is currently in a state of war with al Qaeda”); cf. Stephen C. Neff, War and the Law of Nations: A General History 388 (2005) (quoting a high-level British official as asserting that Britain is “at war with terrorism”).

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especially if they involve the use of chemical, nuclear, or biological weapons.30 These attacks thus may challenge national sovereignty and inflict human casualties in ways that are paradigmatic of wartime battles.31 Yet the fight against terrorism also has attributes that indicate that it is not an armed conflict. For instance, although terrorist attacks have the potential for extreme violence, the violence to date has been somewhat episodic. In the ten-year period since al Qaeda first declared war, it and its affiliates have committed only a handful of attacks against the United States outside recognizable theaters of combat. The attacks against U.S. allies have been similarly intermittent. Moreover, even though these groups have some organizational structure–in that their leaderships are identifiable and provide operational, financial, or ideological support for adherents–their levels of organization do not compare to that of a state’s armed forces or an armed insurgency. Group “members” are geographically dispersed; they act in independent and compartmentalized units, rather than as a coordinated whole; their immediate agendas vary; and many have only loose (or no) connections to an organizational base.32 The “parties” to the conflict thus cannot be identified except in broad and abstract terms.33 Unfortunately, this indeterminacy on whether the global fight against terrorism constitutes an armed conflict cannot be resolved by reference to the current law of armed conflict. The 1949 Geneva Conventions and their Additional Protocols identify essentially two categories of armed conflict.34 The first category–international 30

Cf. Office of the Dir. of Nat’l Intelligence & Nat’l Intelligence Council, National Intelligence Estimate: The Terrorist Threat to the U.S. Homeland 6 (2007) (“We assess that al-Qa’ida will continue to try to acquire and employ chemical, biological, radiological, or nuclear material in attacks and would not hesitate to use them if it develops what it deems is sufficient capability.”).

31

See Bruce Ackerman, Essay, The Emergency Constitution, 113 Yale L.J. 1029, 1037 (2004).

32

See, e.g., Combating Al Qaeda and the Militant Jihadist Threat: Hearing Before the Terrorism, Unconventional Threats and Capabilities Subcomm. of the H. Armed Servs. Comm., 109th Cong. 3 (2006) (statement of Dr. Bruce Hoffman, Chair in Counterterrorism and Counterinsurgency, RAND) (describing al Qaeda as having a core leadership but as being a “loosely organized and connected movement that mixes and matches organizational and operational styles”); Wyn Rees, European and Asian Responses to the US-Led “War on Terror,” 20 Cambridge Rev. Int’l Aff. 215, 216 (2007) (describing the loosely networked nature of jihadi terrorist groups); Roula Khalaf & Stephen Fidler, From Frontline Attack to Terror by Franchise, Fin. Times (U.K.), July 5, 2007, at 8 (“[A]n al-Qaeda core . . . provid[es] logistic support and training to some; and offer[s] nothing more than inspiration to others.”).

33

See Gabor Rona, Interesting Times for International Humanitarian Law: Challenges from the “War on Terror,” 27 Fletcher F. World Aff. 55, 60 (2003) (“The concept of a ‘party’ suggests a minimum level of organization required to enable the entity to carry out the obligations of law. There can be no assessment of rights and responsibilities under humanitarian law in a war without identifiable parties.”).

34

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 603

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armed conflicts-includes conflicts between states, and under Additional Protocol I, conflicts “in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of selfdetermination . . . in accordance with the Charter of the United Nations.”35 The fight against terrorism is neither. It is not predominantly between states and is not a fight for self-determination within the terms of Additional Protocol I.36 The second category–conflicts “not of an international character”–is undefined and arguably could be interpreted to cover the fight against terrorism.37 But doing so requires a significant conceptual leap (characterizing as “non-international” a conflict that is fought across the globe) and results in the application of a legal regime that was developed with an entirely different kind of conflict in mind.38 The regime applicable to non-international armed conflicts was developed to temper the extraordinary brutality of intrastate conflicts, which, at the time,

[hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 610 [hereinafter Additional Protocol II]; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV] [Geneva Conventions I-IV hereinafter referred to collectively as Geneva Conventions]. 35

Additional Protocol I, supra note 34, art. 1, ¶ 4; see also Geneva Conventions, supra note 34, art. 2.

36

See Murphy, supra note 25, at 1118. Even if the fight against terrorism could be characterized as a fight for self-determination under Additional Protocol I, al Qaeda and its affiliates have not made the requisite unilateral declaration seeking status and assuming rights and obligations under Article 96 of that Protocol. Id. It thus would not apply by its terms.

37

Geneva Conventions, supra note 34, art. 3. For arguments that the fight against terrorism is a non-international armed conflict, see, for example, Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2795 (2006); Anthony Dworkin, Military Necessity and Due Process: The Place of Human Rights in the War on Terror, in New Wars, New Laws? Applying the Laws of War in 21st Century Conflicts 53 (David Wippman & Matthew Evangelista eds., 2005); and Derek Jinks, September 11 and the Laws of War, 28 Yale J. Int’l L. 1 (2003).

38

The regime applicable in non-international armed conflicts is set forth in Article 3 (common to all four Geneva Conventions) and expanded on in Additional Protocol II. Geneva Conventions, supra note 34, art. 3; Additional Protocol II, supra note 34. Although the drafters of Common Article 3 had an internal armed conflict in mind, the text of that Article permits an interpretation that applies to conflicts between states, on the one hand, and armed sub-state actors not falling within the terms of Additional Protocol I, on the other hand. This appears to be the approach adopted by the U.S. Supreme Court in Hamdan, 126 S. Ct. at 2795.

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were not amenable to extensive international regulation.39 These conflicts were relentlessly violent and geographically concentrated, not episodically violent and geographically diffuse like the fight against terrorism. In short, the armed-conflict classification is an inadequate trigger for identifying whether the law of armed conflict does or should apply in the fight against terrorism. That fight has only some of the attributes of an armed conflict. And even if it might reasonably be classified as a non-international armed conflict, that classification does not by itself justify the application of a legal regime designed to govern completely different kinds of conflicts. That classification also fails to resolve the question of what the law requires. As this Article explains in the next Section, there is some ambiguity on whether, and if so how, the law of armed conflict and human rights law apply concurrently during non-international armed conflicts.40 The better approach, therefore, is not to ask whether the fight against terrorism constitutes an armed conflict and then to mechanically apply or reject the law of armed conflict based on that classification, but to ask whether, among the available legal regimes, the law of armed conflict best balances the international community’s interests in the context of particular counterterrorism measures. In the context of non-battlefield detentions, the balance is between preventing terrorist attacks on the one hand, and respecting the liberty interests of potential detainees on the other hand. B. Detention Under the Law of Armed Conflict There are obvious reasons why states would want to invoke the law of armed conflict to detain terrorism suspects. That law grants states expansive detention authority on the understanding that the associated liberty costs must be tolerated during wartime in the interests of state security. Detention in this context is not about punishment; it is about incapacitating persons and thereby containing the security threat they pose.41 This is conceptually consistent with the goals of 39

See, e.g., Int’l Comm. of the Red Cross, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 27–34 ( Jean S. Pictet ed., 1958) [hereinafter Commentary: IV Geneva Convention] (describing the history of Common Article 3); id. at 36 (asserting that Common Article 3 conflicts “take place within the confines of a single country”); see also Int’l Comm. of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 1319 (Yves Sandoz et al. eds., 1987) [hereinafter Commentary on Additional Protocols] (“[A] non-international armed conflict is distinct from an international armed conflict because . . . the parties to the conflict are not sovereign states, but the government of a single state in conflict with one or more armed factions within its territory.”).

40

See infra notes 47–49 and accompanying text.

41

In the parlance of the Geneva Conventions, the term “detention” has penal connotations. The Conventions use the term “internment” to refer to non-penal deprivations of liberty. See, e.g., Horst Fischer, Protection of Prisoners of War, in The Handbook of Humanitarian Law in Armed Conflicts 321, 326 (Dieter Fleck ed., 1995).

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detention in the fight against terrorism. States looking to detain non-battlefield terrorism suspects are primarily interested, not in punishing them (although states may believe that punishment is desirable), but in preventing them from committing future attacks, and if possible, obtaining from them actionable intelligence. Yet detaining such suspects under the law of armed conflict imposes substantially higher liberty costs than would be tolerated in a more conventional armed conflict. The fight against terrorism is not, technically, an international armed conflict.42 If it nevertheless is treated as one for purposes of applying a detention regime, the law would permit states to detain anyone reasonably suspected of posing a security threat until the circumstances justifying detention cease to exist, or until the end of hostilities.43 This regime was designed for conflicts between states that would end after several years and in which combatants could be clearly identified.44 The fight against terrorism is not so geographically or temporally contained. It takes place across the globe and likely will continue for decades without any clear indicia of victory or defeat. Applying the law of armed conflict in this context would mean that states could detain, potentially for life, persons captured anywhere in the world based only on the reasonable suspicion that they pose some sort of security threat.45 Moreover, such detention need not be accompanied by meaningful legal process, in that detainees need not be afforded the opportunity to contest before a judicial body the circumstances giving rise to detention.46 In conventional wars, the availability of such process is less critical because the risk of detaining innocents is less 42

See supra notes 34–36 and accompanying text.

43

See Geneva Convention III, supra note 34, arts. 21, 118 (permitting detention of combatants in an international armed conflict until the cessation of hostilities); Geneva Convention IV, supra note 34, art. 42 (same for protected civilians so long as “absolutely necessary”); Commentary: IV Geneva Convention, supra note 39, at 257 (explaining that states have broad discretion to define the scope of activity that renders civilian detentions necessary).

44

See Geneva Conventions, supra note 34, art. 2; Geneva Convention III, supra note 34, art. 4; W. Michael Reisman & James E. Baker, Regulating Covert Action 41 (1992).

45

Even under the most protective regime for armed-conflict detentions—the regime governing the detention of protected civilians in enemy territory—a state has broad discretion to detain where it has “good reason to think” the suspect poses a real security threat (for instance, that he is engaged in sabotage or is a member of an organization whose object is to cause disturbances). See Commentary: IV Geneva Convention, supra note 39, at 258.

46

See Geneva Convention III, supra note 34, arts. 21, 118 (presuming that combatants may be detained without legal process until the end of hostilities); Geneva Convention IV, supra note 34, art. 43 (permitting the detention of civilians with minimal legal process); Int’l Comm. of the Red Cross, Commentary: III Geneva Convention Relative to the Treatment of Prisoners of War 546–47 ( Jean S. Pictet ed., 1960) [hereinafter Commentary: III Geneva Convention]; Commentary: IV Geneva Convention, supra note 39, at 260–61 (describing that process as an independent but rudimentary secondstage review of whether detention is necessary for state security).

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pronounced. The Geneva Conventions contemplate that the majority of detainees will be combatants who identify themselves as such and who therefore have no basis for contesting their detention. Terrorists, by contrast, operate by blending into the general population. This creates a substantial risk that any counterterrorism detention regime will capture a disproportionately high number of innocents. Unlike in international armed conflicts, then, there is a heightened need in the fight against terrorism for some mechanism to ensure that detention in each case is objectively necessary, or that the detainees are in fact dangerous. If the fight against terrorism is instead treated as a non-international armed conflict, then the rules governing detention are more ambiguous. The law of armed conflict does not itself establish a scheme for detention in such conflicts. The applicable provisions of the Geneva Conventions–set forth at Common Article 3–assume that a state has broad discretion to detain,47 but (unlike the provisions governing detention in international armed conflicts) they do not purport to occupy the field in this area. The rules for detention historically have been found in the state’s domestic law,48 as marginally constrained by the baseline protections of customary international law. The customary law of armed conflict recognizes that states have broad discretion to detain persons until “the circumstances justifying . . . detention . . . have ceased to exist.”49 This rule is akin to the one applicable in international armed conflicts, and the problems with applying it to the fight against terrorism are the same: extended detention is permitted based only on the reasonable suspicion of a threat and without any judicial guarantees. Yet the dominant modern position is that the authority to detain during noninternational armed conflicts is further constrained by the concurrent application of human rights law.50 If one accepts that position, and the state has not derogated

47

Geneva Conventions, supra note 34, art. 3.

48

See Commentary: III Geneva Convention, supra note 46, at 39–40 (explaining that Common Article 3 requires that persons be treated humanely but does not restrict the measures that a state may take to contain a security threat).

49

Additional Protocol I, supra note 34, art. 75. For evidence that Common Article 3 and Article 75 of Additional Protocol I reflect customary international law applicable in all armed conflicts, see 1 Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law 299–383 (2005); and Michael J. Matheson, Continuity and Change in the Law of War: 1975 to 2005: Detainees and POWs, 38 Geo. Wash. Int’l L. Rev. 543, 547 (2006).

50

Additional Protocol II, drafted in the 1970s to enhance the minimalist provisions of Common Article 3, clearly contemplates the continued application of human rights law during noninternational armed conflicts. See Additional Protocol II, supra note 34, pmbl. (“Recalling furthermore that international instruments relating to human rights offer a basic protection to the human person. . . .”); Bothe, Partsch & Solf, supra note 28, at 636 (“[P]rovisions of the [International Covenant on Civil and Political Rights] which have not been reproduced in the Protocol or which provide for a higher standard of protection than the Protocol should be regarded as applicable. . . .”). For other evidence that human rights law continues to apply

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from its human rights obligations on detention,51 then the law permits both administrative detention and detention through the criminal process. This technically is detention under human rights law (not under the law of armed conflict) and is examined in Section II.C below. The point here is that, in non-international armed conflicts governed by human rights law, states have the discretion to detain persons who pose a security threat either through a system of administrative detention or through the criminal process.52 States have that discretion, even though detainees in non-international armed conflicts generally are suspected criminals (not privileged combatants) alleged to have committed criminal acts.53 Administrative detention remains an option because such detention may be best suited to prevent continued fighting, and because states engaged in such conflicts are not expected

during non-international armed conflicts, see, for example, Bothe, Partsch & Solf, supra note 28, at 619, stating that “it cannot be denied that the general rules contained in international instruments relating to human rights apply to non-international conflicts”; and Commentary on Additional Protocols, supra note 39, at 1340, which notes that “Human rights continue to apply concurrently in time of armed conflict.” See also Karima Bennoune, Toward a Human Rights Approach to Armed Conflict: Iraq 2003, 11 U.C. Davis J. Int’l L. & Pol’y 171, 226–27 (2004); Theodor Meron, The Humanization of Humanitarian Law, 94 Am. J. Int’l L. 239, 266–73 (2000). Note that many international lawyers also understand human rights law to apply during international armed conflicts. See, e.g., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 225, ¶ 25 ( July 8). Yet the application of human rights law during an international armed conflict would not alter the governing detention regimes because the elaborate regimes of the Geneva Conventions would continue to govern as the lex specialis. 51

Most human rights instruments permit states to derogate from certain human rights obligations, including the obligations relating to detention, during declared national emergencies. See Organization of American States, American Convention on Human Rights art. 27, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 [hereinafter American Convention]; International Covenant on Civil and Political Rights, G.A. Res. 2200A, art. 4, U.N. GAOR, 21st Sess., U.N. Doc. A/RES/2200 (Dec. 16, 1966), 999 U.N.T.S. 172 (entered into force Mar. 23, 1976) [hereinafter ICCPR]; European Convention for the Protection of Human Rights and Fundamental Freedoms art. 15, Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter ECHR]. But see Organization of African Unity, African Charter on Human and Peoples’ Rights, June 27, 1981, O.A.U. Doc. CAB/LEG/67/3 rev. 5 [hereinafter African Charter] (containing no explicit provision for derogation). Although the texts of these instruments permit derogation from the obligations relating to detention, human rights bodies have asserted that no derogation is permitted from the obligation not to engage in arbitrary detention or from the obligation to subject detention to judicial review. See, e.g., Human Rights Comm., General Comment 29: States of Emergency (Article 4), ¶¶ 11, 16 n.9, U.N. Doc. CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001) [hereinafter General Comment 29]. For a discussion on the law governing detention during national emergencies, see generally Gross & Ní Aloaín, supra note 23.

52

See Human Rights Council, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, U.N. Doc A/HRC/ C/17/Add. 3 (Oct. 25, 2007) (prepared by Martin Scheinin); Jelena Pejic, Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence, 87 Int’l Rev. Red Cross 375, 377 (2005).

53

See Commentary on Additional Protocols, supra note 39, at 1344.

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to devote their law enforcement and other security resources primarily to the process of criminal prosecution and conviction.54 C. Detention Under Human Rights Law The reflexive response to the problems with detaining non-battlefield terrorism suspects under the law of armed conflict has been to invoke the criminal law–i.e., to assert that the fight against terrorism is not an armed conflict, and that human rights law governs to permit detention exclusively through the criminal process.55 There is no question that the criminal process is a relatively fair and transparent mechanism for detaining terrorism suspects, and that in many circumstances it may also be effective, in that it may permit states to detain for extended periods persons who have committed past criminal acts and who continue to threaten state security. The question, however, is whether human rights law does or should require states that face a serious threat from transnational jihadi terrorism to detain nonbattlefield suspects exclusively through the criminal process. This Section argues, contrary to the predominant assumption, that human rights law also permits states to detain at least some such suspects administratively, in order to protect the public from future attacks. Before examining the current law on administrative detention, however, this Section explores why states might legitimately seek an alternative to the criminal process for containing the threat that non-battlefield terrorism suspects may pose. 1. Criminal Detention The criminal process is not quite the right model for detention in the fight against terrorism: its focus is retrospective, rather than prospective; it is maladroit for transnational operation; and it often fails to accommodate the tools used and evidence available in terrorism cases. Because of these incompatibilities, states that face a real threat from transnational terrorism but detain exclusively through the criminal process will absorb certain costs. Most of these costs go to the state’s security interests, because the criminal process will obstruct efforts to detain suspects until after they participate in an attack (if ever). Yet states that rely exclusively on the criminal process also may undermine certain liberty interests. These states will face tremendous pressure to adjust their criminal laws to make them more effective in terrorism cases. They therefore risk contaminating the law as it applies to more ordinary offenses. Moreover, reliance on the criminal process may enable these states to detain suspects for rather lengthy periods before trial and thus without any

54

As described in the text, the decision process for identifying the governing detention regime is as follows: TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

55

See supra notes 12, 24.

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determination that detention is necessary.56 This Section elaborates on the incompatibilities between the criminal process and non-battlefield detention in order to explain why states might reasonably seek alternative options for detention in the fight against terrorism. First, the criminal process is conceptually incongruous with the preventative goals of non-battlefield detention, because it is retrospective in focus. Condemnation and punishment are appropriate only after the suspect has committed a proscribed act. By contrast, detentions in the fight against terrorism are predominantly prospective, focused not on punishing for a prior act, but on preventing future ones. To be sure, most criminal justice systems have mechanisms for moderating that retrospective focus and using the law proactively. For instance, states may proscribe preparatory and supporting acts or may rely more heavily on inchoate offenses, like attempts and conspiracy.57 Ordinarily, however, the retrospective nature of the criminal law continues to express itself through graded punishment schemes and limiting legal doctrines that constrain the scope of application of the criminal proscription–for example, by requiring that a person charged with attempt be “dangerously close” to committing the crime, or that a person act with purpose for a conviction of criminal conspiracy. These safeguards are integral to the overall balance of a criminal justice system. Western democracies generally are willing to accept a certain level of criminal activity in exchange for the assurance that individuals will not be criminally convicted based on premature or indeterminate evidence. Yet those same safeguards weaken the proactive force of the criminal law in the fight against terrorism, where the costs of accepting that level of criminal activity may be substantially higher. States that rely exclusively on the criminal process to detain non-battlefield suspects thus face an unenviable choice: They may maintain the ordinary safeguards of the criminal process and accept that some terrorism suspects identified by law enforcement or intelligence officials will not be detained until after they participate in an attack. Or they may adjust the criminal process in ways that undermine its safeguards but enable them to more effectively capture suspects who have not yet but still might commit an attack.58 States will face 56

See generally Niki Kuckes, Civil Due Process, Criminal Due Process, 25 Yale L. & Pol’y Rev. 1 (2006) (demonstrating that pretrial detention is permitted in the United States without any evidentiary showing that the detainee committed a wrongful act).

57

Many states have strengthened their criminal laws in these ways. See Gross & Aoláin, supra note 23, at 402–04; Kent Roach, The Criminal Law and Terrorism, in Global Anti-Terrorism Law & Policy 129, 131–36 (Victor V. Ramraj, Michael Hor & Kent Roach eds., 2005).

58

For a further discussion on the adjustments made to U.S. criminal law to facilitate terrorism prosecutions, see Robert M. Chesney & Jack L. Goldsmith, Terrorism and the Convergence of Criminal and Military Detention Models, 60 Stan. L. Rev. (forthcoming 2008) (manuscript at 23–32), available at http://ssrn.com/abstract=1055501. “[P]rosecutors have responded to the prevention mandate with creative interpretations of existing statutes to establish criminal liability. . . .” Id. at 23.

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significant pressure to choose the latter option, but doing so carries the potential cost of contaminating the criminal process. Doctrines or interpretations developed in the terrorism context–and with transnational jihadi terrorists in mind–may migrate outside that context to affect other areas of the criminal law.59 Second, the criminal process is ill-equipped for the transnational nature of the fight against terrorism.60 The criminal process depends for its success on effective and available law enforcement, but terrorists often take harbor in states that lack the capability or political will to frustrate terrorism-related conduct in their territories. Some host states decline even to investigate known terrorists.61 In these sorts of political environments, the prospects for cooperative law enforcement are slim. The host governments are unwilling to exercise their own law enforcement capabilities and are unlikely to agree to the open exercise of law enforcement powers by a foreign state. In other instances, a host state may be willing to prosecute a known terrorist but may be encumbered by ineffective tools of law enforcement. For instance, Abu Baker Bashir is widely believed to have participated in at least three major terrorist attacks and two foiled plots in Southeast Asia since December 2000.62 Yet Indonesia, which has twice tried Bashir, has been unable to sustain a conviction even for one terrorism-related offense.63 What if, then, instead of prosecuting Bashir itself, Indonesia offered to render him to the United States? This proposition is not entirely improbable. States that inadequately employ the tools of law enforcement may operate quite effectively through intelligence channels, because they may be willing to do surreptitiously that which, for domestic political or legal reasons, they are unwilling or unable to do publicly. Indonesia itself has rendered at least two terrorism suspects to the 59

See generally Gross & Aoláin, supra note 23, at 238–42 (demonstrating that generally applicable legal rules may mutate in response to emergency related precedents and concerns); Roach, supra note 57, at 139 (“One danger is that extraordinary powers may be introduced and justified in the anti-terrorism context but then spread to other parts of the criminal law.”).

60

Cf. Dominic D. McAlea, Post Westphalian Crime, in New Wars, New Laws? Applying the Laws of War in 21st Century Conflicts 111, 119–20 (David Wippman & Matthew Evangelista eds., 2005) (discussing the transnational nature of terrorism).

61

See, e.g., Nat’l Comm’n on Terrorist Attacks upon the U.S., The 9/11 Commission Report 115, 121–26 (2004) (describing the failure of Afghanistan and Pakistan to pursue Osama bin Laden); David Blair, Al-Qa’eda Regroups in the Border Lands and Prepares for a New Wave of Terror, Daily Telegraph (U.K.), May 31, 2007, at 20 (reporting that Pakistan declined to conduct any police or military operations in its Waziristan region despite the common understanding that al Qaeda’s leadership had reconstituted itself there).

62

See Paddock, supra note 3.

63

See Shawn Donnan & Taufan Hidayat, Jailed Indonesian to Be Freed, Fin. Times (U.K.), Mar. 10, 2004, at 11 (reporting that, in the first trial, Bashir was convicted only of a minor immigration offense); Stephen Fitzpatrick & Natalie O’Brien, Hambali Could Have Kept JI Leader in Jail, Weekend Australian, Dec. 23, 2006, at 8 (reporting that, in the second trial, Bashir was convicted of a terrorism-related offense but that that conviction was overturned).

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United States, and the CIA reportedly sought to obtain custody of Bashir.64 U.S. officials, however, would have a difficult time prosecuting Bashir in U.S. courts. The hurdles to collecting and amassing evidence in a foreign state are substantial and sometimes insurmountable. This is especially the case where the foreign state obstructs (for domestic political or state sovereignty reasons) any joint or unilateral law enforcement operation in its territory,65 or where the investigation concerns preparatory or supporting acts, in anticipation of a not-yet-completed attack. Terrorism suspects who reside in states without effective tools of law enforcement thus will be largely beyond the reach of the criminal law, at least until after they commit an attack. Finally, the criminal process may require the application of domestic laws or procedures that, although perhaps appropriate for more ordinary criminals, fail to accommodate the sorts of tools used and evidence available in terrorism cases. Terrorism cases rely heavily on intelligence information that states are averse to sharing in public fora, including judicial proceedings, for fear of exposing sources or methods.66 In the criminal cases against Bashir, Indonesian prosecutors sought to use intelligence information or sources from the United States and Australia–two countries with a particularly strong interest in Bashir being detained–but, in both cases, those countries declined to share the evidence.67 The United States also refused to share such evidence with German officials prosecuting an accomplice to the September 11 attacks. In the German case, the conviction of the 9/11 accomplice was overturned on the ground that, although the government had made its case, the defendant could not adequately develop his defense without an intelligence source that the United States refused to share.68

64

See Richard C. Paddock, Bashir Guilty in Bali Blasts, L.A. Times, Mar. 3, 2005, at A6 (reporting that the United States sought to detain Bashir in the CIA program); Farah Stockman, Cleric’s Trial Tests US Antiterror Fight, Boston Globe, Mar. 2, 2005, at A1.

65

Cf. Jim Hoagland, Accountability and the Cole Attack, Wash. Post, Jan. 14, 2001, at B7 (“FBI investigators [into the U.S.S. Cole bombing] have been hamstrung by Yemenis.”); David A. Vise & Vernon Loeb, U.S. Team May Face Difficulties in Probe, Wash. Post, Oct. 14, 2000, at A18 (describing the bulky U.S. criminal investigation in Yemen and the practical difficulties of investigating there).

66

See Christoph J.M. Safferling, Terror and Law: German Responses to 9/11, 4 J. Int’l Crim. Just. 1152, 1162 (2006).

67

See id.; Raymond Bonner, Indonesia Brings New Case Against Cleric Tied to Terror, N.Y. Times, Oct. 29, 2004, at A7; Raymond Bonner, Indonesians Answer Critics of Trial Verdict, N.Y. Times, Sept. 7, 2003, at A17.

68

Craig Whitlock, Terror Suspects Beating Charges Filed in Europe, Wash. Post, May 31, 2004, at A1. The defendant in that case, a Moroccan man named Mounir el-Motassadeq, was retried and convicted in January 2007 for being an accessory in the murders of the airplane passengers who died in the attacks, but not in the other murders of the day. See Mark Landler, 9/11 Associate Is Sentenced in Germany to 15 Years, N.Y. Times, Jan. 9, 2007, at A10.

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Further, even where a state does share such information, it may be inadmissible in court or may fail to satisfy the heightened burdens of proof of a criminal trial. Intelligence operations are designed to obtain information as quickly and surreptitiously as possible; they are not, like law enforcement operations, designed to meticulously accumulate evidence in ways that can withstand challenges to admissibility in court.69 In the United States, intelligence evidence may be inadmissible if it is hearsay or was obtained without a warrant. In the Netherlands, prosecutors have lost at least two major terrorism cases after judges ruled that evidence obtained by intelligence agencies was inadmissible.70 And in Bashir’s case, video-link evidence from Singapore could not be used because it did not comply with rules designed to prevent tampering with witnesses.71 The criminal process thus is conceptually and sometimes operationally inapt to detain non-battlefield terrorism suspects before they strike. Some states may choose to live with these problems. After all, states that readily discard the safeguards of the criminal process risk detaining arbitrarily or without sufficient controls. Yet states that detain non-battlefield suspects exclusively through this process risk contaminating their criminal justice systems and hamstringing themselves against preventing future attacks. 2. Administrative Detention Other states may decide that, for certain non-battlefield terrorism suspects, the criminal process strikes the wrong balance between liberty and security. These states already have an alternative option for detention under international human rights law. Human rights law permits states to detain persons who pose a serious security threat–just as it permits states to detain persons who are awaiting deportation or who endanger public safety due to mental illness–not only through the criminal process, but also through calibrated systems of administrative detention.72

69

See Ronald J. Sievert, War on Terrorism or Global Law Enforcement Operation?, 78 Notre Dame L. Rev. 307, 327–40 (2003).

70

See Whitlock, supra note 68.

71

See Tim Lindsey & Jeremy Kingsley, Letter, Voice with a Different Message, Herald Sun (Austl.), Dec. 25, 2006, at 17, available at 2006 WLNR 22459924.

72

Human rights actors regularly acknowledge that security-based administrative detention may be lawful. See, e.g., U.N. Econ. & Soc. Council [ECOSOC], Sub-Comm. on Prevention of Discrimination & Prot. of Minorities, Report on the Practice of Administrative Detention, ¶ 17, U.N. Doc. E/CN.4/Sub.2/1990/29 ( July 24, 1990) (prepared by Louis Joinet) [hereinafter Joinet Report] (“[A]dministrative detention is not banned on principle under international rules. . . .”); Human Rights Comm’n, Report of the Working Group on Arbitrary Detention, ¶¶ 84–85, U.N. Doc. E/CN.4/2004/3 (Dec. 15, 2003) (acknowledging that administrative detention may be appropriate in the counterterrorism context); Human Rights Comm., General Comment 8, Right to Liberty and Security of Persons (Article 9) ( June 30, 1982), reprinted in Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, 8, U.N. Doc. HRI/GEN/1/Rev.1 ( July 29, 1994)

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The option of administrative detention, however, has been overlooked in the international legal debate on non-battlefield detentions. Human rights law establishes both procedural and substantive constraints on administrative detention to protect against abuse. The procedural constraints are designed as safeguards against mistaken, unlawful, or arbitrary detentions. Any detention must be grounded in law,73 meaning that states must prescribe in advance the permissible bases for detention and then follow their own laws.74 Moreover, states must inform a detainee immediately of the reasons for his detention75 and must afford him the opportunity for prompt judicial review.76 These constraints are [hereinafter General Comment 8] (acknowledging that administrative detention is sometimes lawful); Human Rights Comm., Communication No. 66/1980: Uruguay, ¶ 18.1, U.N. Doc. CCPR/C/17/D/66/1980 (Oct. 12, 1982) [hereinafter Human Rights Comm., Schweizer v. Uruguay] (“[A]dministrative detention may not be objectionable in circumstances where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner. . . .”); Helena Cook, Preventive Detention—International Standards and the Protection of the Individual, in Preventive Detention: A Comparative and International Law Perspective 1, 1 (Stanislaw Frankowski & Dinah Shelton eds., 1992) (“In some circumstances preventive detention may be a legitimate means of social protection and control.”); Int’l Comm. of the Red Cross, supra note 25 (asserting that states may detain persons outside the armed-conflict and criminal models “for imperative reasons of security”). Although human rights actors regularly acknowledge that security-based administrative detention may be lawful, they have repeatedly failed to establish meaningful parameters for it, except to assert that it should be used only in exceptional cases. See, e.g., Joinet Report, supra at 4 (“[G]overnments might at the very least might be expected to use [administrative detentions] only in truly exceptional cases. . . .”); Human Rights Comm., Consideration of Reports Submitted by State Parties Under Article 40 of the Covenant: Comments of the Human Rights Committee, ¶ 21, U.N. Doc. CCPR/C/79/Add.44 (Nov. 23, 1994) (recommending to Morocco “that measures of administrative detention and incommunicado detention be restricted to very limited and exceptional cases”); Int’l Comm’n of Jurists, ICJ Memorandum on International Legal Framework on Administrative Detention and CounterTerrorism, at 11–12, 18 (Dec. 2005) [hereinafter ICJ MEMO]. 73

See African Charter, supra note 51, art. 6 (prohibiting detentions that are not prescribed by law); American Convention, supra note 51, art. 7(2)–(3) (same); ICCPR, supra note 51, art. 9(1) (same); ECHR, supra note 51, art. 5 (same).

74

See Yoram Dinstein, The Right to Life, Physical Integrity, and Liberty, in The International Bill of Rights: The Covenant on Civil and Political Rights 114, 130–31 (Louis Henkin ed., 1981).

75

See African Charter, supra note 51, art. 7(2); ICCPR, supra note 51, art. 9(2); ECHR, supra note 51, art. 5(2); Restatement (Third) of Foreign Relations § 702 cmt. h (1986) (asserting that, under customary law, a detention will be arbitrary if “not accompanied by a notice of charges”); see also General Comment 8, supra note 72, at 8–9 (asserting that Article 9(2) of the ICCPR requires states to inform administrative detainees, and not just criminal detainees, of the reasons for detention).

76

See African Charter, supra note 51, art. 7(1)(a); American Convention, supra note 51, art. 7(5); ICCPR, supra note 51, art. 9(4); ECHR, supra note 51, art. 5(4). Some international actors have suggested that human rights law also requires that any detainee be provided with access to legal counsel. See, e.g., Human Rights Comm., Concluding Observations: Israel, ¶ 13, U.N.

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intended to induce institutional checks and balances and perform critical backstopping functions. The decision to detain may not be made by one person or institution, but must instead be based on the prior reflection and deliberation of the legislature (or, in a common law system, the courts) and subject to the oversight of an independent and impartial judiciary. The procedural constraints, therefore, are critical to preventing abuse. Yet, because they ultimately may be satisfied by reference to a state’s own laws, they are not always sufficient. For example, an overzealous state may satisfy the procedural constraints on detention by passing legislation permitting the detention of political dissidents and then affording suspected dissidents judicial review on the determination that they are dissidents. If the state’s substantive law permits such detention, then judicial review and the other procedural safeguards will not protect against it. Human rights law addresses that concern by imposing separate, substantive constraints designed to restrict the circumstances under which detention is lawful. These substantive constraints vary based on the source of law. Customary and most conventional law prohibits “arbitrary” detention without specifying the circumstances that render a detention arbitrary.77 The test of arbitrariness that has developed in international law is fact-specific: whether a particular detention is reasonably necessary to satisfy a legitimate government interest.78 In the example of the overzealous state, the government interest–silencing or reeducating political dissidents– would almost certainly be considered illegitimate, and the detention unlawful for arbitrariness. The European Convention on Human Rights (ECHR) takes a slightly different approach from the other human rights instruments. Instead of specifically Doc. CCPR/CO/78/ISR (Aug. 21, 2003) [hereinafter Human Rights Comm., Concluding Observations: Israel 2003]; Louise Arbour, In Our Name and on Our Behalf, 55 Int’l & Comp. L.Q. 511, 519 (2006). 77

See African Charter, supra note 51, art. 6 (prohibiting detentions that are arbitrary); American Convention, supra note 51, art. 7(2)–(3) (same); ICCPR, supra note 51, art. 9(1) (same); Universal Declaration of Human Rights, G.A. Res. 217A, art. 9, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948) (reflecting the customary international rule that “[n]o one shall be subjected to arbitrary . . . detention”); Restatement (Third) of Foreign Relations § 702(e) (1990) (“A State violates [customary] international law if, as a matter of state policy, it practices, encourages or condones . . . prolonged arbitrary detention.”).

78

See, e.g., Human Rights Comm., Communication No. 1324/2004: Australia, ¶ 7.2, U.N. Doc. CCPR/C/88/D/1324/2004 (Nov. 13, 2006) [hereinafter Human Rights Comm., Shafiq v. Australia] (detention could be arbitrary if “not necessary in all the circumstances of the case and proportionate to the ends sought”); Human Rights Comm., Communication No. 560/1993: Australia, ¶ 7.2, U.N. Doc. CCPR/C/59/D/560/1993 (Apr. 3, 1997) [hereinafter Human Rights Comm., A. v. Australia] (same if “not necessary in all the circumstances of the case”); Human Rights Comm., Communication No. 305/1988: Netherlands, ¶ 5.8, U.N. Doc. CCPR/C/39/D/305/1988 (Aug. 15, 1990) (same if not “reasonable in all the circumstances”); see also Jordan J. Paust, Judicial Power to Determine the Status and Rights of Persons Detained Without Trial, 44 Harv. Int’l L.J. 503, 507 (2003).

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prohibiting arbitrary detentions,79 it delineates an exhaustive list of the circumstances in which detention is permitted. The ECHR specifically permits detention, inter alia, for noncompliance with a lawful court order, for immigration control, of persons “of unsound mind,” to bring a person before a competent legal authority on reasonable suspicion that he has committed a criminal offense, or when reasonably necessary, to prevent him from committing such an offense.80 States parties to the ECHR must fit any administrative detention within one of these categories for which detention has been deemed justifiable. The human rights instruments thus outline a structure for administrative detention that, when used for reasons of national security, falls somewhere between armed-conflict detention and criminal detention. Like detention under the law of armed conflict, administrative detention is preventative. Its focus is on incapacitating persons who pose a future security threat, not on punishing them for past harms. Moreover, because administrative detention is outside the criminal process, it need not be subject to country-specific rules of criminal law or procedure that, although perhaps appropriate for more ordinary criminals, may strike the wrong balance between liberty and security in the context of particular terrorism suspects. Yet, as with criminal detention, administrative detention must be objectively necessary or justified and must be subject to meaningful judicial review. Given the inadequacies of the armed-conflict and criminal models, and given the nature of the fight against terrorism–in that it has some but not other attributes of an armed conflict-administrative detention presents a potentially appealing legal framework for detaining non-battlefield terrorism suspects. Its appeal, however, depends largely on how it is implemented. III. EXAMINING ADMINISTRATIVE DETENTION Where administrative detention is used for reasons of national security, it tends to be implemented in one of three ways: (1) detention prior to filing criminal charges; (2) detention pending deportation; and (3) “pure” security-based detention premised only on the interest in containing the security threat. At first blush, it might appear to be relatively uncomplicated to assess, on a case-by-case basis, the legality of such detentions by reference to the procedural and substantive constraints described above. In practice, however, the substantive constraints that international law imposes on detention have proven insufficient in the security context. Thus, although the law permits security-based administrative detention, it currently is inadequate to govern non-battlefield detentions in the fight against terrorism.

79

The European Court of Human Rights has interpreted the ECHR to contain an implicit requirement of non-arbitrariness, see Winterwerp v. Netherlands, 33 Eur. Ct. H.R. (ser. A) at 17–18 (1979), but that requirement may be satisfied procedurally, see infra notes 88–90 and accompanying text.

80

See ECHR, supra note 51, art. 5(1).

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This Part demonstrates the insufficiency of the existing substantive constraints on administrative detention by reviewing the jurisprudence of two prominent human rights bodies: the Human Rights Committee under the International Covenant on Civil and Political Rights (ICCPR) and the European Court of Human Rights under the ECHR.81 The Human Rights Committee reviews administrative detentions under a standard of non-arbitrariness, which it has interpreted to mean that detention must be reasonably necessary to satisfy a legitimate government interest.82 That test is meaningless in the security context. All governments have a legitimate interest in protecting against serious threats to national security, and the determination that a threat renders detention necessary is not easily reviewed.83 Such determinations are based on classified evidence and risk assessments that may not be available to review bodies and on which they have no expertise. The committee deals with that problem simply by neglecting the standard of nonarbitrariness and emphasizing instead the ICCPR’s procedural constraints on detention. As a result, the standard of non-arbitrariness remains underdeveloped. There is, in other words, almost no guidance on when security-based administrative detention may be lawful under the ICCPR, and when it is unlawful for arbitrariness. The problem under the ECHR is slightly different. The substantive constraint under the ECHR is the requirement that any detention fall within one of the categories for which it is specifically permitted. Under the court’s jurisprudence, the ECHR permits security-based detention predicated on other proceedings (for example, criminal trial or deportation) irrespective of any showing of actual necessity, but it prohibits pure security-based detention, even if objectively necessary to contain a serious security threat. This framework creates an incentive for states to detain under the false pretense of future criminal or immigration proceedings, even where such proceedings are not forthcoming. Indeed, Part IV demonstrates that a number of states have done just that. A. Detention Predicated on Criminal or Immigration Proceedings The European Court of Human Rights and the Human Rights Committee both review leniently detentions predicated on future criminal or immigration proceedings. In the case of future criminal proceedings, the ECHR specifically permits detention “on reasonable suspicion [that a person has] committed an offense.”84 The European Court of Human Rights has explained that a state may detain persons under that provision where the state intends to pursue criminal charges,

81

See also sources cited supra note 72.

82

See supra note 78 and accompanying text.

83

Cf. Gross & Aoláin, supra note 23, at 264–67 (describing the difficulty international bodies have in reviewing official justifications for resorting to emergency measures).

84

ECHR, supra note 51, § I, art. 5(1)(c).

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even if it never does.85 Thus, in Brogan v. United Kingdom, the court found that the United Kingdom did not violate the ECHR’s substantive constraint when it detained terrorism suspects for as long as seven days without filing any criminal charges against them.86 With respect to future immigration proceedings, the ECHR permits detention “with a view to deportation.”87 In Chahal v. United Kingdom, the court explained that a state may detain under that provision so long as deportation proceedings are diligently pursued and the decision to detain is not arbitrary.88 Notably, however, the court did not adopt the traditional international test of non-arbitrariness that requires a showing of reasonable necessity.89 Instead, it understood that standard in purely procedural terms. Even though the detainee in Chahal contested the determination that he posed a security threat, the court declined to review that determination on the ground that the domestic processes for making it were sufficiently elaborate to protect against arbitrariness.90 The European Court of Human Rights thus has upheld security-based detentions predicated on future criminal or immigration proceedings without making any independent determination that detention is necessary or justified.91 Under the ICCPR, the existence of future criminal or immigration proceedings does not necessarily satisfy the standard of non-arbitrariness because the committee interprets that standard to require that detention in each case be reasonably, or objectively, necessary to satisfy the government interest. Nevertheless, the committee declines to review necessity determinations in cases involving claims of 85

Brogan v. United Kingdom, 145 Eur. Ct. H.R. (ser. A) at 16, 29 (1988).

86

Id. at 16.

87

ECHR, supra note 51, § I, art. 5(1)(f ).

88

App. No. 22414/93, 23 Eur. H.R. Rep. 413, 465–66 (1996).

89

Id. at 464 (asserting that the ECHR “does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary . . . . all that is required . . . is that ‘action is being taken with a view to deportation’”); id. at 466–67.

90

Id. at 464; see also Saadi v. United Kingdon, App. No. 13229/03, 44 Eur. H.R. Rep 1005, 1015–16 (2007) (rejecting the detainee’s claim of arbitrariness for lack of necessity in part because “domestic law provided a system of safeguards”). But cf. id. at 1015 (suggesting that the ECHR standard of non-arbitrariness may have a substantive element to it, to the extent it limits the permissible duration of detention).

91

See also, e.g., Conka v. Belgium, App. No. 51564/99, 34 Eur. H.R. Rep. 1298, 1299 (2002) (reiterating that detentions predicated on deportation proceedings need not be necessary); Assenov v. Bulgaria, App. No. 24760/94, 28 Eur. H.R. Rep. 652, 656–58 (1999) (focusing on the procedures for pretrial detention without making any independent assessment of necessity). Note that the European Court of Human Rights engages in a somewhat more probing review of pretrial detention than of pre-deportation detention. See Chahal, 23 Eur. H.R. Rep. at 464. Nevertheless, that review does not involve an independent determination of necessity or justification. Instead, it consists of an examination of whether domestic bodies have set forth “relevant” and “sufficient” grounds for detention. See, e.g., Lind v. Russia, App. No. 25664/05, ¶ 71 (Dec. 6, 2007), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (search for term “Lind,” then follow the link “Case of Lind v. Russia”).

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national security. By default, then, the committee declines to find that securitybased detentions predicated on criminal or immigration proceedings are arbitrary. For instance, in Bandajevsky v. Belarus, the committee reviewed a pre-charge detention that lasted twenty-three days.92 Belarus asserted that the detention was necessary on the ground that the detainee was involved in particularly dangerous criminal conduct. Of course, Belarus had not yet tried the detainee, so it had not yet proven that he was, in fact, involved in conduct necessitating detention. The committee, however, declined to probe Belarus’s necessity determination or to otherwise give texture to the standard of non-arbitrariness. It found, simply, that the detainee had failed to make a showing of arbitrariness.93 The committee likewise avoided that standard in Ahani v. Canada, a case involving a nine-year detention pending deportation on national security grounds.94 In that case, the committee asserted, without further discussion, that “detention on the basis of a security certification by two Ministers on national security grounds does not result ipso facto in arbitrary detention.”95 It then shifted its focus to the ICCPR’s procedural constraints on detention.96

92

Human Rights Comm., Communication No. 1100/2002: Belarus, ¶ 10.2, U.N. Doc. CCPR/ C/86/D/1100/2002 (Apr. 18, 2006). The author of this claim was not suspected of engaging in terrorist activity but was charged under a presidential decree relating to “the fight of terrorism and other particularly dangerous violent crimes.” Id. According to Belarus, he was the leader of a particularly dangerous organized criminal group. Id.

93

Id.

94

Human Rights Comm., Communication No. 1051/2002: Canada, ¶ 4.13, U.N. Doc. CCPR/ C/80/D/1051/2002 ( June 15, 2004) (hereinafter Human Rights Comm., Ahani v. Canada).

95

Id. ¶ 10.2.

96

For a more thorough discussion of this decision, see Gerald Heckman, International Decisions: Ahani v. Canada, 99 Am. J. Int’l L. 699 (2006). Note that the Human Rights Committee engages in a significantly more probing review of immigration detention where the asserted justification for detention is related not to national security, but instead to general immigration policy. Even absent a national security claim, the committee recognizes that states may have a legitimate interest in detaining foreign nationals pending deportation. See, e.g., Human Rights Comm., A. v. Australia, supra note 78, ¶ 9.3 (“[T]here is no basis for the author’s claim that it is per se arbitrary to detain individuals requesting asylum.”); Sarah Joseph, Jenny Schultz & Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary 312–19 (2d ed. 2005) (reviewing the committee’s jurisprudence acknowledging that administrative detention for immigration control may in some instances be lawful). Yet the committee requires states to justify such detention in terms of individualized assessments of necessity and with periodic reviews. See, e.g., Human Rights Comm., Shafiq v. Australia, supra note 78, ¶ 7.2 (finding immigration detention arbitrary because it is based only on a general policy goal of not admitting uncleared immigrants and not on an individualized assessment); Human Rights Comm., Communication No. 1050/2002: Australia, ¶ 7.2, U.N. Doc. CCPR/C/87/D/1050/2002, (Aug. 9, 2006) (same); Human Rights Comm., A. v. Australia, supra note 78, ¶ 9.3 (finding immigration detention arbitrary because there was insufficient justification for extended detention).

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B. Pure Security-Based Detention Detentions predicated on criminal or immigration proceedings purport to further two separate government interests: the interest in containing the security threat, and the interest in either trying and punishing or deporting the individual. The second government interest thus serves as a sort of substantive check on detention–explicitly under the ECHR and by default under the ICCPR. In cases involving pure security-based detention, however, no other government interest exists. The purpose of detention is only to contain the security threat. In these cases, the European Court of Human Rights and the Human Rights Committee have reached very different results. The European Court of Human Rights has suggested that pure security-based detention is unlawful under the ECHR. The ECHR permits detention “for the purpose of bringing [a person] before the competent legal authority . . . when it is reasonably considered necessary to prevent his committing an offense.”97 The court, however, has interpreted that provision to permit detention only if tied to criminal proceedings, and not if taken to incapacitate a person who otherwise poses a threat or has a general propensity for crime.98 This jurisprudence reflects the peacetime premise of the ECHR,99 and may not be entirely appropriate in the fight against terrorism. But unless the ECHR is amended or reinterpreted in the context of that fight, states parties to it must squeeze any security-based detention into one of the other ECHR categories. By contrast, pure security-based detention is permitted under the ICCPR, so long as it is reasonably necessary to contain the security threat. The problem, again, is that the Human Rights Committee has provided almost no guidance on when security-based detention should be considered reasonably necessary. Even when reviewing the detentions by the United States at Guantánamo Bay–which it apparently did under the lens of administrative detention–the committee focused only on the ICCPR’s procedural constraints. It criticized the inadequacy of process at Guantánamo Bay and encouraged the United States to afford all Guantánamo detainees “proceedings before a court to decide, without delay, on the lawfulness of

97

ECHR, supra note 51, art. 5(1)(c).

98

See, e.g., Lawless v. Ireland (No. 3), 3 Eur. Ct. H.R. (ser. A), ¶¶ 13–15, 48 (1961); see also Ciulla v. Italy, 148 Eur. Ct. H.R. (ser. A) 1, ¶ 38 (1989); Guzzardi v. Italy, 3 Eur. Ct. H.R. (ser. A) 333, 367–68, ¶ 102 (1980). But cf. Ericksen v. Norway (No. 37), 1997-III Eur. Ct. H.R. 839, ¶¶ 85–86 (1997) (finding detention after conviction and sentence justified, in light of the detainee’s “impaired mental state and . . . foreseeable propensity for violence,” because the detention was “closely linked to the original criminal proceedings”).

99

Cf. Gerald L. Neuman, Comment, Counter-Terrorist Operations and the Rule of Law, 15 Eur. J. Int’l L. 1019, 1021 (2004) (“The text of the European Convention suggests that it was not designed to regulate the conduct of war.”).

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their detention or order their release.”100 But it did not suggest that the requisite process could be afforded only under the criminal law, and it did not address whether the Guantánamo detentions would be unlawful (as arbitrary) even if accompanied by adequate legal process. The committee’s neglect of the standard of non-arbitrariness is endemic to its jurisprudence on pure security-based detention. Many states that engage in such detention deny their practices or detain in ways that blatantly violate the ICCPR’s procedural constraints. In these instances, the committee condemns only the procedural violation or otherwise ducks the question of arbitrariness.101 The committee also ducks that question, however, when reviewing the practice of states that admit to administering such detention and that purport to do so in a manner consistent with their ICCPR obligations. For instance, India and Israel each ratified the ICCPR with statements designed to preserve the legality of pure securitybased detention.102 In its 1996 report under the ICCPR, India acknowledged that it employed such detention in response to a “sustained campaign of terrorism” in its territory.103 India asserted that such detention was permitted if necessary to prevent a person from threatening public order or security, but India did not specify the circumstances in which that might be the case, and it did not attempt to

100

Human Rights Comm., Concluding Observations of the Human Rights Committee: United States of America, ¶ 18, U.N. Doc. CCPR/C/USA/CO/3/Rev.1 (Dec. 18, 2006).

101

See, e.g., Human Rights Comm., Communication No. 1297/2004: Algeria, ¶ 8.5, U.N. Doc. CCPR/C/87/D/1297/2004 (Aug. 9, 2006) (finding the detention of a terrorist suspect unlawful “[i]n the absence of adequate explanations from the state party concerning the author’s allegations”); Human Rights Comm., Communication No. 1044/2002: Tajikistan, ¶ 8.4, U.N. Doc. CCPR/C/86/D/1044/2002 (Apr. 26, 2002) (finding the detention of a bombing suspect unlawful based on the state’s failure to refute the claim of unlawfulness); Human Rights Comm., Schweizer v. Uruguay, supra note 72, ¶ 18.1 (finding that it was not “in a position to pronounce itself on the general compatibility of the regime of ‘prompt security measures’ under Uruguayan law with the Covenant”).

102

India ratified the ICCPR with a reservation clarifying that it would interpret the ICCPR provisions on detentions to permit pure security-based detention taken consistent with the Indian Constitution. See Human Rights Comm., Reservations, Declarations, Notifications and Objections Relating to the International Covenant on Civil and Political Rights and the Optional Protocols Thereto, at 25, U.N. Doc. CCPR/C/2/Rev.4 (Aug. 24, 1994) [hereinafter ICCPR Reservations]; see also Derek Jinks, The Anatomy of an Institutionalized Emergency: Preventive Detention and Personal Liberty in India, 22 Mich. J. Int’l L. 311, 351–54 (2001). Notably, other states did not object to this reservation, even though a few did object to India’s reservation on a different ICCPR provision. See ICCPR Reservations, supra, at 53–56 (objections of France, Germany, and the Netherlands). Israel ratified the ICCPR with a notification that it intended to exercise powers of arrest and detention as required by the exigencies of its situation. Israel hedged on whether the exercise of such powers would be inconsistent with the ICCPR so as to require derogation; it derogated from the detention provisions insofar as was necessary. Id. at 27–28.

103

Human Rights Comm., Third Periodic Reports of States Parties Due in 1992: India, ¶ 50, U.N. Doc. CCPR/C/76/Add.6 ( June 17, 2006).

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demonstrate that it satisfied that standard.104 The committee nevertheless was silent on the issue of arbitrariness. It expressed “regrets that the use of special powers of detention remains widespread” in India, and then accepted that India could continue to detain persons administratively for reasons of national security, so long as it satisfied the procedural constraints on detention.105 The committee has been slightly more assertive in its observations on Israel. With Israel, the committee has raised two concerns that appear to go to the standard of non-arbitrariness, although even here it has not expressed itself in those terms. First, the committee asserted in 1998 that it had “specific concern” that “at least some of the persons kept in administrative detention for reasons of State security . . . do not personally threaten State security but are kept as ‘bargaining chips’ in order to promote negotiations with other parties.”106 This concern presumably goes to the requirement of non-arbitrariness, because Israel’s practice of detaining persons as bargaining chips is not prohibited by any of the procedural constraints on detention. The implication is that detention is arbitrary (at least in the committee’s view) if it is based, not on an individualized assessment of necessity, but on a broader state interest unrelated to the particular persons being detained.107 Israel later seemed to accept that view. In its subsequent report to the committee, Israel acknowledged that international law prohibits (again, presumably as arbitrary) the detention of persons who do not themselves pose a security threat but who may be useful bargaining chips in future negotiations.108 Second, the committee has expressed concern with the duration of detention in Israel.109 This concern highlights but does not resolve a tension inherent in pure security-based detention. In the immigration context, the committee acknowledges that even rather lengthy detentions may be non-arbitrary (recall that the detention in Ahani lasted nine years),110 so long as the detaining state periodically reassesses the necessity of detention.111 Unlike detentions predicated on deportation, however, 104

Id. ¶ 55.

105

Human Rights Comm., Concluding Observations: India, ¶ 24, U.N. Doc. CCPR/C/79/Add.81 (Aug. 4, 1997).

106

Human Rights Comm., Concluding Observations: Israel, ¶ 21, U.N. Doc. CCPR/C/79/ Add.93 (Aug. 18, 1998) [hereinafter Human Rights Comm., Concluding Observations: Israel 1998].

107

Cf. supra text accompanying note 96 (discussing requirement for individualized assessment in cases involving immigration detention not based on national security concerns).

108

See Human Rights Comm., Second Periodic Report Addendum: Israel, ¶¶ 125–28, U.N. Doc. CCPR/C/ISR/2001/2 (Dec. 4, 2001).

109

Human Rights Comm., Concluding Observations: Israel 1998, supra note 106, ¶ 21; Human Rights Comm., Concluding Observations: Israel 2003, supra note 76, ¶ 13.

110

Human Rights Comm., Ahani v. Canada, supra note 94.

111

See Human Rights Comm., A. v. Australia, supra note 78, ¶ 9.4 (“[E]very decision to keep a person in detention should be open to review periodically so the grounds justifying the

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pure security-based detentions have no intrinsic mechanism for establishing an end-date to detention. Various actors have therefore suggested that such detention must in some way be temporally constrained–i.e., that an otherwise lawful detention may become arbitrary or unlawful if it is exceptionally lengthy or if there is a possibility that it could last indefinitely.112 Nevertheless, there is no shared understanding as to the point at which a detention becomes arbitrary by virtue of its duration. The committee’s jurisprudence on security-based detention thus fails to give any texture to the standard of non-arbitrariness. The committee repeatedly avoids that standard to emphasize, instead, the procedural constraints on detention. At best, the committee has suggested that detention may be arbitrary and therefore unlawful, if it is not based on an individualized assessment of necessity or if it is unduly lengthy. Some states appear to accept those suggestions, but only in very narrow or unspecified terms. IV. INTERNATIONAL PRACTICE: GROPING FOR ALTERNATIVES At this point, one might reasonably argue that choosing a suitable detention model for non-battlefield terrorism suspects is essentially a judgment call. An international legal argument may be made for each of the models (except possibly for the pure security-based administrative model under the ECHR), and none is cost-free. The armed-conflict model is consistent with the preventative goals of non-battlefield detention, but its liberty costs are prohibitive: innocents easily could be detained, for extended periods if not for life, based only on a reasonable suspicion of threat and without any judicial guarantees. The criminal model is substantially more protective of individual liberties, but if used exclusively in the fight against terrorism, it too carries with it potentially significant costs. States that have no choice but to charge, prosecute, and convict terrorism suspects will inevitably

detention can be assessed. In any event, detention should not continue beyond the period for which the State can provide appropriate justification.”); see also Human Rights Comm., Concluding Observations: Japan, ¶ 19, U.N. Doc. CCPR/C/79/Add.102 (Nov. 19, 1998) (noting that persons were detained for up to two years pending immigration proceedings but expressing concern only about the conditions of detention). 112

30

See Human Rights Comm’n, Letter Dated 19 March 2002 from the Permanent Representative of Singapore, at 3, U.N. Doc. E/CN.4/2002/157 (Mar. 25, 2002) [hereinafter Human Rights Comm’n Letter] (underscoring that the duration of pure security-based detention in Singapore is time-limited); Human Rights Comm., Concluding Observations: Cameroon, ¶ 19, U.N. Doc. CCPR/C/79/Add.116 (Nov. 3, 1999) (expressing concern that “a person held in administrative detention . . . may have his detention extended indefinitely”); ICJ MEMO, supra note 72, at 12; Drew R. Atkins, Customary International Humanitarian Law and Multinational Military Operations in Malaysia, 16 Pac. Rim. L. & Pol’y J. 79, 97 n.124 (2007) (noting the two-year limit to pure security-based detention in Malaysia); Pejic, supra note 52, at 382 (“[H]uman rights jurisprudence rejects the notion of indefinite detention.”); Sangeeta Shah, The UK’s Anti-Terror Legislation and the House of Lords: The First Skirmish, 5 Hum. Rts. L. Rev. 403, 404–05 (2005) (describing the United Kingdom’s derogation from the ECHR and the ICCPR to accommodate post-9/11 legislation permitting indefinite detention). TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008

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adjust the criminal law to enhance its preventative capacity. They therefore risk eroding the safeguards of their criminal justice systems and contaminating the law as it applies in more ordinary cases. These states also risk that some terrorism suspects identified by law enforcement and intelligence services will go uncontained– either because they live in states that lack effective tools of law enforcement or because the tools used and information available are incompatible with the process of criminal trial and conviction. Administrative detention is a potentially appealing in-between system. Human rights actors regularly acknowledge that security-based administrative detention may be lawful, but as Part III demonstrated, they have failed to establish adequate substantive controls on such detention. This Part looks to international practice for guidance on the current status of the law, and on the direction in which it is moving. It demonstrates that international actors–and particularly western democracies that take seriously their human rights obligations, but also face a serious threat from transnational jihadi terrorism–are dissatisfied with both the armed-conflict model and exclusive reliance on the criminal model. Most states have declined to apply the law of armed conflict to detain non-battlefield suspects because the liberty and public relations costs are too high. Yet several states have also demonstrated that they perceive an occasional but serious need to contain the threat from non-battlefield suspects outside the criminal process. In the absence of any international guidance for satisfying that need, these states have been willing to resort to a variety of ad hoc or uncontrolled measures. Some of these measures have been taken discreetly or have encountered strong condemnation; they therefore cannot be understood to reflect collective expectations on what the law does or should permit.113 But other measures–and specifically measures of administrative detention–have been pursued overtly, and with legislative and judicial participation. These latter measures have not all been upright, but they indicate that states are groping for an alternative legal framework within which to satisfy their perceived security needs. A. Rejecting the Armed-Conflict Approach The United States has almost singularly114 asserted the authority to detain nonbattlefield terrorism suspects based on the law of armed conflict.115 U.S. detention 113

With respect to identifying state expectations, see Andrew R. Willard, Incidents: An Essay on Method, in International Incidents 25 (W. Michael Reisman & Andrew R. Willard eds., 1988).

114

But cf. Lynn Welchman, Rocks, Hard Places and Human Rights: Anti-Terrorism Law and Policy in Arab States, in Global Anti-Terrorism Law and Policy, supra note 57, at 581, 582 (“[T]housands have been arrested in Arab states, many held for prolonged periods without trial.”); Michael Slackman, Saudis Round Up 172, Citing A Plot Against Oil Rigs, N.Y. Times, Apr. 28, 2007, at A1 (reporting on the arrest and detention of 172 persons connected to a terrorist ring, and quoting a Saudi official as asserting that there is “still a war going on” against terrorism).

115

See supra note 6; infra notes 116–118 and accompanying text.

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practices–under the CIA program and at Guantánamo Bay-have therefore been at the center of the international conversation on applying the law of armed conflict to non-battlefield suspects. The international reaction to these practices has been intensely negative. From a systemic perspective, that reaction is strong evidence that the current law of armed conflict does not properly govern non-battlefield detentions. The United States has invoked the law of armed conflict to justify various forms of non-battlefield detention. Some non-battlefield suspects have been detained in secret CIA “dark sites” without any legal process at all.116 Others have been detained at Guantánamo Bay.117 Still others have been detained at secure facilities on U.S. soil.118 The common feature among all such detentions is their armed-conflict premise. The reaction to those detention practices from actors outside the United States has been extraordinarily negative. The facility at Guantánamo Bay, in particular, has become a symbol of injustice around the world,119 such that even close European allies of the United States demand that it be closed.120 International human rights bodies have been even more outspoken. These bodies have focused on the 116

See President’s Speech on Military Commissions, supra note 9 (asserting that the CIA detention program holds “a small number of suspected terrorist leaders and operatives captured during the war”) (emphasis added); Monica Hakimi, The Council of Europe Addresses CIA Rendition and Detention Program, 101 Am. J. Int’l L. 442, 442 (2007) (discussing and collecting sources on the CIA program).

117

For recent government arguments that premise Guantánamo detentions on an armed conflict, see Brief for Respondent at 2, Boumediene v. Bush, No. 06-1195 (U.S. Oct. 9, 2007); Brief for Respondent at 2, 7–8, Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (No. 05-184).

118

Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007), reh’g en banc granted, No. 06-7427 (4th Cir. Aug. 22, 2007) (non-citizen captured and detained as an enemy combatant in the United States); Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005) (U.S. citizen captured and detained as an enemy combatant in the United States).

119

See, e.g., Alan Cowell, Briton Wants Guantánamo Closed, N.Y. Times, May 11, 2006, at A24 (quoting the British attorney general as asserting that “[t]he existence of Guantánamo remains unacceptable” and that it has become “a symbol to many—right or wrong—of injustice”); Mark Mazzetti, General Rejects Call to Penalize Ex-Guantanamo Prison Chief, L.A. Times, July 13, 2005, at A11 (“The U.S. prison at Guantanamo Bay has been the source of intense anger throughout the Arab world.”); Thom Shanker & David E. Sanger, New to Pentagon, Gates Argued for Closing Guantánamo, N.Y. Times, Mar. 23, 2007, at A1 (quoting Defense Secretary Gates as acknowledging that the detention facility at Guantánamo Bay has “become so tainted abroad”).

120

See, e.g., John R. Crook, Contemporary Practice of the United States Relating to International Law: International Human Rights, 100 Am. J. Int’l L. 214, 232–36 (2006) (noting the positions of the United Kingdom, France, and Germany); Hunger Strike at Guantanamo Prison Grows to 89 Inmates, L.A. Times, June 2, 2006, at A23 (Germany, Denmark, and United Kingdom); Dafna Linzer & Glenn Kessler, Decision to Move Detainees Resolved Two-Year Debate Among Bush Advisers, Wash. Post, Sept. 8, 2006, at A1 (Europe generally); Elaine Sciolino, Spanish Judge Calls for Closing U.S. Prison at Guantánamo, N.Y. Times, June 4, 2006,

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deficiencies of legal process available to terrorism detainees in U.S. custody.121 The Human Rights Committee and the Committee Against Torture have each criticized the insufficiency of legal process at Guantánamo Bay,122 and the Council of Europe has condemned the absence of any legal process under the CIA program.123 Finally, the heads of five mechanisms under the U.N. Human Rights Commission have concluded that non-battlefield detainees at Guantánamo should be either subjected to criminal process or released.124 The U.N. Secretary-General publicly supported that conclusion, asserting that “the basic point that one cannot detain individuals in perpetuity and that charges have to be brought against them and their being given a chance to explain themselves and be prosecuted, charged or released . . . is something that is common under any legal system.”125 B. . . . But Evading the Criminal Process Discreetly Most international actors have therefore declined to apply the law of armed conflict to detain non-battlefield suspects. But the fact that other actors have rejected the U.S. approach–and the overt use of the legal tools under the law of armed conflict–does not mean that they fail to appreciate the threat from transnational jihadi groups, or the armed-conflict attributes of the fight against them. Even states that publicly criticize the U.S. approach have demonstrated that (at least in certain cases) they also perceive advantages to it, or that they otherwise share the goal of responding to the threat from non-battlefield suspects without resort to the criminal process.126 at A6 (Spain and United Kingdom); Craig Whitlock, Europeans Cheer Ruling on Guantanamo Trials, Wash. Post, June 30, 2006, at A8 (Europe generally). 121

See, e.g., U.N. Econ. & Soc. Council [ECOSOC], Comm. on Human Rights, Situation of Detainees at Guantánamo Bay, ¶¶ 21, 25, U.N. Doc. E/CN.4/2006/120 (Feb. 15, 2006) [hereinafter Comm. on Human Rights, Situation of Detainees]; Eur. Comm. for Democracy Through Law, Opinion on the International Legal Obligations of Council of Europe Member States in Respect of Secret Detention Facilities and Inter-State Transport of Prisoners, ¶¶ 78–85, Doc. No. CDL-AD(2006)009 (Mar. 2006); Int’l Comm. of the Red Cross, The Relevance of IHL in the Context of Terrorism ( July 21, 2005), http://www.cicr.org/web/eng/siteeng0.nsf/html/ terrorism-ihl-210705 (rejecting the notion of a global armed conflict and then asserting that “when a person suspected of terrorist activities is not detained in connection with any armed conflict, humanitarian law does not apply”).

122

See Comm. Against Torture, Conclusions and Recommendations: United States of America, ¶ 22, U.N. Doc. CAT/C/USA/CO/2 ( July 25, 2006); Human Rights Comm., Consideration of Reports Submitted By States Parties Under Article 40 of the Covenant, ¶ 18, U.N. Doc. CCPR/C/ USA/CO/3/Rev.1 (Dec. 18, 2006).

123

See Hakimi, supra note 116, at 446.

124

Comm. on Human Rights, Situation of Detainees, supra note 121, ¶ 95.

125

See Warren Hoge, Investigators for UN Urge U.S. to Close Guantánamo, N.Y. Times, Feb. 17, 2006, at A6 (internal quotation marks omitted).

126

That other states share that goal is also evident from various public statements they have made. For instance, the former Defense Minister of the United Kingdom has suggested revising the

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Several states have participated covertly in the very U.S. detention practices that they publicly condemn.127 The extent of such participation has varied. A few states have held and interrogated non-battlefield detainees in coordination with the United States.128 But these states have notoriously poor human rights records, so their practice is not necessarily reflective of the direction of international law in this area. The participation of other states–including those that take their human rights obligations seriously–has been more subtle. For instance, there is some evidence that, under NATO auspices, European states permitted the United States to use their airspace to transport non-battlefield detainees into custody.129 There also is strong evidence that European and other states shared intelligence giving rise to detentions;130 interrogated detainees already in custody;131 declined to accept law of armed conflict to address terrorism-related detentions. See David Ignatius, Editorial, A Way Out of Guantanamo Bay, Wash. Post, July 7, 2006, at A17. Austrian officials have acknowledged that Guantánamo Bay occupies a legal “gray area,” id., and have proposed that Europe and the United States work together to establish a new “framework” for terrorismrelated renditions. Temporary Comm. On the Alleged Use of European Countries by the CIA for the Transp. & Illegal Detention of Prisoners, Report on the Alleged Use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners, ¶ 25, Eur. Parl. Doc. A6-0020/2007 ( Jan. 30, 2007) (prepared by Giovanni Claudio Fava) [hereinafter EU Report on CIA]. Australian and Italian officials have publicly supported detentions under the CIA program. See John Ward Anderson, Confirmation of CIA Prisons Leaves Europeans Mistrustful, Wash. Post, Sept. 8, 2006, at A8 (reporting on statement by the Australian foreign minister supporting the CIA program); Tracy Wilkens, Court Widens Net for 22 CIA Agents to EU, L.A. Times, Dec. 24, 2005, at A3 (reporting on statement by then Italian Prime Minister Berlusconi that the CIA operation against Abu Omar was “justifiable”). Finally, German officials are now advocating the establishment of a system of extra-criminal detention in that country. See Mark Landler, Debate on Terror Threat Stirs Germany, N.Y. Times, July 11, 2007, at A1. 127

See generally EU Report on CIA, supra note 126 (finding that European States acquiesced or participated in U.S. detentions); COE Report, supra note 13 (same); see also Jimmy Burns et al., Comment & Analysis, Render unto Washington: US Tactics on Terror Are Making Europe Examine its Complicity, Fin. Times (U.K.), Dec. 14, 2005, at 17 (reporting on the “uneasy arrangements by which European governments have appeared to collude with the U.S. in practices that they have rarely been willing to defend, criticise or even acknowledge”).

128

See COE Report, supra note 13, ¶¶ 202–03 (naming Morocco); Jane Mayer, Outsourcing Torture: Annals of Justice, New Yorker Mag., Feb. 14, 2005, at 106, 107 (naming Egypt, Jordan, Morocco, and Syria).

129

See Council of Eur., Comm. on Legal Affairs and Human Rights, Secret Detentions and Illegal Transfers of Detainees Involving Council of Europe Member States: Second Report, ¶¶ 72–83, Eur. Parl. Doc. 11302 rev. ( June 11, 2007) (prepared by Dick Marty) [hereinafter COE Second Report].

130

See Comm’n of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar: Analysis and Recommendations 13–14 (2006), available at http://www.ararcommission.ca/eng/AR_ English.pdf (Canada); COE Report, supra note 13, ¶¶ 163–76 (United Kingdom).

131

See COE Report, supra note 13, ¶ 201 (United Kingdom); id. ¶¶ 187, 191 (Germany); Mark Landler & Souad Mekhennet, Freed German Detainee Questions His Country’s Role,

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their nationals or residents back into their territories, cognizant that the alternative would be continued detention;132 and hosted CIA detention facilities in their territories.133 Finally, the evidence indicates that several states have themselves captured non-battlefield terrorism suspects and then transferred them into U.S. or another state’s custody for extended, extra-criminal detention.134 States have also evaded the criminal process by deporting non-battlefield suspects despite the risk that the suspects would be mistreated in their home countries. In the counterterrorism context, deportation is frequently from a western democracy to a country that is ambivalent about human rights and that has an independent interest in containing the jihadi threat. Deportation thus may result in arbitrary detention, detainee mistreatment, or execution in the detainee’s home country. Human rights law generally prohibits refoulement where there is a real risk of such mistreatment, but states increasingly cope with that prohibition by obtaining from the receiving state diplomatic assurances that deported suspects will not be mistreated.135 These assurances are often unreliable.136 Western democracies N.Y. Times, Nov. 4, 2006, at A8; Craig Smith, Leak Disrupts French Terror Trial, N.Y. Times, July 6, 2006, at A8. 132

See, e.g., Landler & Mekhennet, supra note 131, at A8 (Germany); Whitlock, supra note 120, at A8 (Europe); Craig Whitlock, U.S. Faces Obstacles to Freeing Detainees, Wash. Post, Oct. 17, 2006, at A1 (United Kingdom, Germany, and “other European States”).

133

See COE Second Report, supra note 129, ¶¶ 70, 117 (Thailand, Romania, and Poland).

134

See, e.g., Comm. Against Torture, Communication No. 233/2003, U.N. Doc. CAT/C/34/ D/233/2003 (May 24, 2005) [hereinafter Comm. Against Torture, Agiza v. Sweden] (Sweden); COE Report, supra note 13, ¶¶ 133–49 (Bosnia & Herzegovina); id. ¶¶ 94–132 (Macedonia); EU Report on CIA, supra note 126, ¶¶ 49–53 (Italy); Stockman, supra note 64 (Indonesia); Raymond Bonner, Indonesia Brings New Case Against Cleric Tied to Terror, N.Y. Times, Oct. 29, 2004, at A7 (Thailand); Mark Denbeaux & Joshua W. Denbeaux, Report on Guantanamo Detainees: A Profile of 517 Detainees Through Analysis of Department of Defense Data 14 (Seton Hall Pub. Law, Working Paper No. 46, 2006), available at http://ssrn.com/abstract=885659 (Pakistan). The evidence suggests that, in some cases, governments acquiesced in extra-criminal detentions after it became apparent that they had no other option for incapacitating the terrorism suspect. See, e.g., John Crewdson, Italy Says CIA May Have Had Distorted View of Cleric, Chi. Trib., Jan. 8, 2007, at CN12 (reporting evidence that some Italian officials considered Abu Omar to be a threat in Italy but that they could not deport him because of a prior grant of political asylum); Craig Whitlock, At Guantanamo, Caught in a Legal Trap, Wash. Post, Aug. 21, 2006, at A1 (reporting that the United States detained the “Algerian six” at Guantánamo Bay after Bosnian-Herzegovinian courts ordered the local government to release them from criminal detention and prohibited it from deporting them).

135

Human Rights Watch, Still At Risk: Diplomatic Assurances No Safeguard Against Torture (2005), http://hrw.org/reports/2005/eca0405/index.htm (reviewing practices of the United States, Canada, Sweden, the United Kingdom, Netherlands, Austria, and Turkey); Katrin Bennhold, Europe, Too, Takes Harder Line in Handling Terrorism Suspects, N.Y. Times, Apr. 17, 2006, at A1 (citing Sweden, Germany, the Netherlands, Austria, and the United Kingdom).

136

See Comm. Against Torture, Agiza v. Sweden, supra note 134, ¶ 13.4 (“The procurement of diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did

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nevertheless use them to deport terrorism suspects because the alternative may be an uncontained threat in their own territories.137 The diplomatic assurances thus provide a cover for potentially unlawful refoulements. These measures demonstrate that states perceive an occasional but serious need to evade the criminal process in order to contain the threat from nonbattlefield suspects. Thus, although many states have publicly condemned U.S. detention practices, several have also participated in those practices. Likewise, several states have sought to deport terrorism suspects despite the risk of homecountry mistreatment. Yet the fact that these measures were or are employed covertly (or under inaccurate pretenses) signals that states consider them legally suspect and are generally unwilling to push for a change in the law to permit them.138 not suffice to protect against this manifest risk [of torture upon deportation].”); Comm. On Human Rights, Civil and Political Rights, Including the Questions of Torture and Detention, U.N. Doc. E/CN.4/2006/6 (Dec. 23, 2005) (prepared by Manfred Nowak); Human Rights Watch, supra note 135. 137

Three cases recently decided or now pending before the European Court of Human Rights consider whether, when deporting a terrorism suspect, a state may balance the risk of home-country mistreatment against the national security threat of having the suspect uncontained in its own territory: Saadi v. Italy, App. 37201/06 Eur. Ct. H.R. (2008); A. v. Netherlands, App. 4900/06 Eur. Ct. H.R. (2006); and Ramzy v. Netherlands, App. 25424/ 05 Eur. Ct. H.R. (2005). See Press Release, European Court of Human Rights, Application Lodged with the Court Ramzy v. The Netherlands (Oct. 20, 2005), available at http:// www.echr.coe.int/eng/press/2005/oct/applicationlodgedramzyvnetherlands.htm; European Court of Human Rights, Annual Activity Report 2006, § 3, 9 (2007), available at http://www.echr.coe.int/NR/rdonlyres/D8BFD30E-EB6B-4FB9-8639-8990064DB046/0/ CompilationofSectionreports.pdf (providing information regarding A. v. Netherlands). The United Kingdom intervened in the Saadi case, and it and a few other states intervened in the other two cases, arguing that, where the security threat posed by the terrorism suspect is grave, the state should be permitted to deport him even if there is a real risk that he will be mistreated in his home country. See Observations of the Governments of Lithuania, Portugal, Slovakia, and the United Kingdom, Ramzy v. Netherlands, App. 4900/06 Eur. Ct. H.R., available at http://www.redress.org/publications/GovernmentintervenorsobservationsinRamzy%20 case22November.pdf; Press Release, Amnesty Int’l, European Court of Human Rights: Ban on Torture is Absolute and Universal ( July 11, 2007), available at http://news.amnesty.org/ index/ENGIOR300162007. In the Saadi case, however, the European Court of Human Rights rejected that argument, concluding that the ECHR’s implicit prohibition against refoulement is absolute. Saadi, supra ¶ 139. Separately, Canada acknowledges that in unspecified “exceptional circumstances” it may lawfully deport a terrorism suspect irrespective of the risk of home country mistreatment. See Suresh v. Canada, [2002] S.C.R. 3, 46.

138

Indeed, most of the participation by other states in U.S. detention practices was denied or investigated when it became public. Canada established a commission to review its role in the detention and mistreatment of Maher Arar. See Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, http://www.ararcommission.ca (last visited Mar. 31, 2008). In Germany, arrest warrants were issued relating to the abduction of Khaled el-Masri. See Mark Landler, German Court Confronts U.S. on Abduction, N.Y. Times, Feb. 1, 2007, at A1; Craig Whitlock, Germans Charge 13 CIA Operatives, Wash. Post, Feb. 1, 2007, at A1. Italian prosecutors have indicted twenty-six Americans and five Italians in the

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C. . . . And Through Administrative Detention In addition to evading the criminal process discreetly, several states have sought to contain the threat posed by non-battlefield suspects by experimenting with administrative detention. Most of these experiments have been public and subject to legislative and judicial oversight. The broad use of such detention indicates that, although states perceive an occasional need to contain the threat posed by nonbattlefield suspects without resort to the criminal process, and although they sometimes are willing to satisfy that need in legally suspect ways, they also appreciate the benefits to working within a prescribed legal framework. 1. Detention Predicated on Criminal or Immigration Proceedings In most instances, western democracies predicate security-based administrative detention on future criminal or immigration proceedings. By predicating detention on those other proceedings, these states contain the scope of application of the administrative detention regime and purport to avoid the form of detention that is more suspect under international law. This Subsection demonstrates, however, that security-based detention predicated on other proceedings may easily but informally convert into pure security-based detention, but without adequate controls. With respect to future criminal proceedings, a number of states now permit extended pre-charge detention in terrorism cases. Under legislation passed in 2006, the U.K. government may detain terrorism suspects without charge for up to twenty-eight days,139 in contrast to the four days permitted for non-terrorismrelated suspects.140 In Spain, the government may now detain terrorism suspects Abu Omar case. See Richard Owen, CIA Agents Must Be Charged over “Kidnap and Torture,” Says Judge, Times (London), Feb. 17, 2007, at 39. Sweden has initiated an internal investigation into its deportation of an Egyptian imam to Egypt. See Craig Whitlock, A Secret Deportation of Terror Suspects, Wash. Post, July 25, 2004, at A1. And Spain and Portugal are each investigating whether CIA aircraft carrying detainees transited their airspace or stopped for refueling in their territories. See Spain Probes “Secret CIA Flights,” BBC NEWS, Nov. 15, 2005, http://news.bbc.co.uk/2/hi/europe/4439036.stm; Associated Press, Report: Portugal Opens Criminal Investigation into Alleged CIA Flights, Int’l Herald Trib., Feb. 5, 2007, http://www.iht.com/articles/ap/2007/02/05/europe/EU-GEN-Portugal-CIA-Flights.php. Notably, two European states (Germany and Italy) have obstructed judicial investigations into non-battlefield detentions by invoking “state secrets” protections. See COE Second Report, supra note 129, ¶ 5. For one exception, where a few states have pushed for a change in the law, see the discussion supra note 137 regarding the Saadi case. 139

Terrorism Act, 2006, c.11, § 23 (U.K.); Alan Cowell, Britain Arrests 9 Suspects in Terrorist Kidnapping Plot, N.Y. Times, Feb. 1, 2007, at A3. U.K. security officials now consider the twenty-eight-day period of pre-charge detention to be insufficient and have been advocating for extending it still further. See Alan Cowell, 7 Men Sentenced in Qaeda Bomb Plot in the U.S. and Britain, N.Y. Times, June 15, 2007, at A3; Jane Perlez, British Leader Seeks New Terrorism Laws, N.Y. Times, July 26, 2007, at A12.

140

See Jago Russell, Liberty, Terrorism Pre-Charge Detention Comparative Law Study 17 (2007) [hereinafter Liberty Study], available at http://www.liberty-human-rights. org.uk/issues/pdfs/pre-charge-detention-comparative-law-study.pdf.

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without charge for up to thirteen days, as opposed to the usual three.141 And in France, that period is now six days instead of two.142 The purported purpose of extending the permissible period of pre-charge detention is to give the authorities more time to investigate terrorism-related offenses, which may be more difficult to investigate than other crimes. Yet extended detention may be permitted without any rigorous showing that it is necessary or justified in a particular case, and future criminal charges are not always forthcoming. States that extend the permissible period of pre-charge detention in terrorism cases, and that ultimately release a large percentage of detainees without filing any charges, thus employ systems of short-term, pure security-based detention.143 France also predicates more long-term detentions on future criminal proceedings. Under French law, terrorism suspects may be detained for up to four years while they are criminally investigated and before any trial, so long as they are charged with a terrorism-related offense.144 This technically is not administrative detention because the suspect has actually been charged with an offense. But terrorism offenses in France are often vaguely defined, and charges may be based only on suspicion, with the understanding that the special magistrate judge assigned to the case will conduct most of the investigation after the defendant is charged.145 This system thus overtly permits long-term detention without any rigorous demonstration of necessity or prior wrongdoing.146 Moreover, such detention frequently is, for all intents and purposes, pure security-based detention. 141

There is some disagreement in the literature on whether the thirteen-day detention must be predicated on future criminal charges or is pure security-based detention. In either event, this period of detention is longer than was ordinarily permissible. See Human Rights Watch, Setting an Example? Counter-Terrorism Measures in Spain 1–2, 24–26 (2005) available at http://hrw.org/reports/2005/spain0105/spain0105.pdf; Liberty Study, supra note 140, at 48; Jack Straw, Foreign and Commonwealth Office, Counter-Terrorism Legislation and Practice: A Survey of Selected Countries 26 (2005).

142

Code de procédure pénale [C. Proc. Pén.] [Code of Criminal Procedure] [2007] arts. 63, 706–88; Liberty Study, supra note 140, at 38; Bennhold, supra note 135; AFX News, French Parliament Adopts Tough Anti-Terrorism Law, Forbes.Com, Dec. 22, 2005, http://www.forbes. com/work/feeds/afx/2005/12/22/afx2410169.html.

143

See U.K. Home Office Terrorism and the Law, http://www.homeoffice.gov.uk/security/ terrorism-and-the-law/ (last visited Mar. 31, 2008) (reporting that of the 1166 terrorism suspects arrested in the United Kingdom between September 11, 2001 and March 31, 2007, 669 were released without charge).

144

See Bennhold, supra note 135.

145

French law categorizes as a terrorism-related offense a wide variety of conduct committed with the purpose of seriously disrupting public order through intimidation. That category includes the broad offense of “participation in any group . . . established with a view” to committing acts of terrorism (evinced by at least one material act). Code pénal [C. Pén.] [Penal Code] [2007] art. 421-2-1; see also id. art. 421–1 (setting forth most terrorism-related offenses).

146

See Jeffrey Fleishman et al., Outraged Europeans Take Dimmer View of Diversity, L.A. Times, Sept. 5, 2005, at A4 (“Anti-terrorism magistrates [in France] have extensive powers enabling them to jail suspects for up to four years pending trial on minimal evidence.”).

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Many suspects have been detained for years and then released without trial or conviction.147 With respect to future immigration proceedings, several western democracies now detain terrorism suspects pending deportation.148 For instance, in Canada the government may detain a foreign national pending deportation where there are “reasonable grounds to believe that [he poses] a danger to national security or to the safety of any person.”149 In its 2007 decision in Charkaoui v. Canada, the Canadian Supreme Court reviewed Canada’s practice of detaining persons for several years “pending deportation,” based on that reasonable belief standard.150 The Court held that such lengthy and indeterminate periods of detention are lawful, so long as the judicial review afforded to detainees is made more meaningful, and specifically so long as detainees are given the information based on which detention was ordered or, if that information is classified, a substantial substitute for it.151 The Court did not consider the legality of detentions “pending deportation” where deportation has become practically infeasible (for example, because of the risk of home-country mistreatment),152 even though Canada has engaged in such detentions.153 Thus, because the deportation of terrorism suspects is frequently either protracted or infeasible, security-based immigration detention in Canada may be only loosely tied to, or even completely unhinged from, deportation proceedings. These detentions have essentially converted into pure security-based detentions, permitted under a low, reasonable belief standard. 147

See Sandro Contenta, “Sheriff ” Keeping Eye on Canada, Toronto Star, Nov. 10, 2002, at B3, available at LEXIS; Michael Dobbs, In France, Judge Fights Terrorism and Critics, Wash. Post, Nov. 23, 2001, at A34; Craig Whitlock, French Push Limits in Fight on Terrorism, Wash. Post, Nov. 2, 2004, at A1.

148

See, e.g., Teresa A. Miller, Blurring the Boundaries Between Immigration and Crime Control After September 11th, 25 B.C. Third World L.J. 81, 89–91 (2005) (United States); Austrian Minister Defends Jail-for-Refugees Initiative, Deutsche Presse-Agentur, Nov. 2, 2004 (Austria); Roundup: Yemini Imam in German Jail May Face Long Legal Hearings, Deutsche Presse-Agentur, Jan. 13, 2003 (Germany); infra notes 149–158 and accompanying text (Canada and United Kingdom); cf. Fleishman et al., supra note 146 (“From Rome to Paris to Berlin, governments are rethinking the balance between civil rights and national security, proposing tighter immigration and asylum laws. . . .”).

149

Immigration and Refugee Protection Act, 2001 S.C., ch. 27, § 82 (Can.).

150

See Charkaoui v. Canada (Citizenship and Immigration), [2007] S.C.R. 350.

151

Id. at 387–90. As originally drafted, the legislation required the government to afford a detainee the opportunity for judicial review within forty-eight hours if he was a permanent resident, or after 120 days if he was not. However, the Canadian Supreme Court found that the 120-day “grace period,” during which a non-national, non-resident could be detained without judicial review, was impermissibly long. Id. at 403.

152

Charkaoui, [2007] S.C.R. at 417.

153

See Kent Roach, Must We Trade Rights For Security? The Choice Between Smart, Harsh, or Proportionate Security Strategies in Canada and Britain, 27 Cardozo L. Rev. 2151, 2194 (2006).

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Whereas the Charkaoui Court avoided the question of indefinite immigration detention, the House of Lords of the United Kingdom was confronted with exactly that question in A. v. Home Secretary, a 2004 case challenging post-9/11 legislation that permitted the government to detain indefinitely any alien who was reasonably believed to pose a security threat but who would not leave the United Kingdom voluntarily and could not be returned to his home country because of a real risk of mistreatment.154 Because the legislation permitted detention in the absence of pending deportation proceedings, it explicitly permitted pure security-based detention, but only of foreign nationals. In the government’s view, such detention was preferable to the available alternatives: leaving the suspect uncontained in the United Kingdom or returning him to his home country, where he faced the real risk of extended detention plus mistreatment.155 The Law Lords determined, however, that the indefinite detention of foreign nationals was disproportionate to the exigencies of the situation.156 Since that decision, the United Kingdom has continued to employ security-based immigration detention, but not on the understanding that immigration detainees may be held indefinitely.157 The government sometimes avoids the perception of indefinite detention by seeking or obtaining from the suspect’s home country diplomatic assurances that he will not be mistreated if deported.158 2. Pure Security-Based Detention In rarer instances, western democracies have candidly developed systems of pure security-based detention. India and Israel–two states with long histories of trying 154

A. v. Home Secretary, [2004] UKHL 56, [2005] 2 A.C. 68 (appeal taken from Eng.) (U.K.).

155

The international prohibition of refoulement made it unlawful for the United Kingdom to return these suspects to their home countries, but, because indefinite security-based detention is also presumably unlawful under the ECHR, and dubious under the ICCPR, the United Kingdom derogated from the detention provisions of both instruments to accommodate its new legislation. Shah, supra note 112, at 404–05.

156

A. v. Home Secretary, 2 A.C. 68. For a more thorough discussion of A. v. Home Secretary, see Shah, supra note 112, at 406; and Clive Walker, Clamping Down on Terrorism in the United Kingdom, 4 J. Int’l Crim. Just. 1137 (2006).

157

See Lord Alex Carlile, First Report of the Independent Reviewer Pursuant to Section 14(3) of the Prevention of Terrorism Act 2005, at 6–8 (2006) [hereinafter First Carlile Report], available at http://security.homeoffice.gov.uk/news-publications/ publication-search/prevention-terrorism-act-2005/laws-against-terror.pdf?view=Binary.

158

See id.; Matthew Hickley, Judges Let Two Libyan Terror Suspects Back on Our Streets, Daily Mail (U.K.), Apr. 28, 2007, at 13 (“The Home Office has signed memoranda of understanding with Libya, Jordan and Lebanon and reached a similar deal with Algeria in the hope of deporting foreign terror suspects to countries with questionable human rights records where there is not enough evidence to prosecute them in Britain.”). U.K. courts have found that deportation proceedings could not proceed, despite the diplomatic assurances obtained, in at least two cases. See Joshua Rozenburg, Terror Suspects Cannot Be Deported to Libya, Says Court, Daily Telegraph (U.K.), Apr. 28, 2007, at 6 (“Two Libyans found to pose a danger to national security are likely to be released on bail next week after a court ruled that they could not be sent back to their own country.”).

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to combat transnational terrorism–consistently have used such detention for that purpose.159 So too have more authoritarian states, like Singapore and Malaysia.160 This Subsection looks at the more recent practice of the United Kingdom and the United States.161 The United Kingdom responded to the A. v. Home Secretary case by passing new legislation in 2005 permitting it to impose on persons of any nationality various liberty-restricting orders, including in serious cases pure security-based detention.162 Liberty-restricting orders short of detention have included restrictions on movement and prohibitions on access to specific items or services.163 Detention is contemplated as an extreme measure taken with judicial oversight and where the alternatives have been exhausted or rejected as insufficient. Moreover, for anyone subject to detention or other liberty-restricting orders, the government must consider the possibility of a criminal prosecution.164 Pure security-based detention thus 159

See supra notes 102–109 and accompanying text. For more current information on the systems of administrative detention in India and Israel, see Christopher Gagné, Note, POTA: Lessons Learned From India’s Anti-Terror Act, 25 B.C. Third World L.J. 261 (2005); and Joanne Mariner, Indefinite Detention of Terrorist Suspects, FindLaw, June 10, 2002, http://writ.news. findlaw.com/mariner/20020610.html (Israel).

160

See Human Rights Comm’n Letter, supra note 112 (Singapore); Atkins, supra note 112, at 97 n.124 (Malaysia).

161

Australia also seems to permit pure security-based detention in the event that there are “reasonable grounds to suspect” that a person is participating in or possesses something in connection with an “imminent” attack. See Katherine Nesbitt, Preventative Detention of Terrorist Suspects in Australia and the United States: A Comparative Constitutional Analysis 45–48 (Mar. 22, 2007) (unpublished manuscript available at http://ssrn.com/abstract=975792).

162

See Prevention of Terrorism Act, 2005, c.2 (U.K.); see also First Carlile Report, supra note 157; Lord Alex Carlile, Second Report of the Independent Reviewer Pursuant to Section 14(3) of the Prevention of Terrorism Act 2005 (2007) [hereinafter Second Carlile Report], available at http://security.homeoffice.gov.uk/news-publications/ publication-search/prevention-terrorism-act-2005/Lord-Carlile-pta-report-2006. pdf?view=Binary.

163

See First Carlile Report, supra note 157, at 1.

164

Prevention of Terrorism Act of 2005, c.2, §§ 8(2), 8(4) (U.K.). To date, criminal prosecutions of persons restricted under the 2005 legislation have been rare. See First Carlile Report, supra note 157, at 18–19; Second Carlile Report, supra note 162, at 24–26; Lord Carlile, Third Report of the Independent Reviewer Pursuant to Section 14(3) of the Prevention of Terrorism Act 2005, at 27–28 (2008) [hereinafter Third Carlile Report], available at http://security.homeoffice.gov.uk/news-publications/publicationsearch/general/report-control-orders-2008?view=Binary. Law enforcement officials attribute that failure to “there [not being] evidence available that could realistically be used for the purposes of a terrorism prosecution.” Second Carlile Report, supra note 162, at 25. Despite the unavailability of such evidence, however, the decision to impose liberty-restricting measures has, in every case, been supported by the independent reviewer charged with overseeing implementation of the 2005 legislation. See Third Carlile Report, supra at 13; Second Carlile Report, supra note 162, at 13; First Carlile Report, supra note 157, at 12. This suggests that the measures respond to a threat that the British government has not been able

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is permitted in the United Kingdom only if necessary, in that the security threat cannot be contained by less restrictive measures or by the criminal process. In practice, this system has been more constrained than the systems of detention discussed above that are predicated on future criminal and immigration proceedings. As of February 2008, the United Kingdom had not detained anyone under the 2005 legislation.165 For its part, the United States now employs a system of pure security-based administrative detention at Guantánamo Bay. Even though the United States continues to assert the authority to detain both battlefield and non-battlefield terrorism suspects at Guantánamo Bay on the basis of the law of armed conflict,166 ongoing litigation has compelled the United States to better regulate that detention scheme so that it increasingly resembles a system of pure security-based administrative detention. The litigation in the United States has focused on whether Guantánamo detainees may challenge the legality of their detentions in U.S. federal court. The availability of federal court review is, of course, not required under the law of armed conflict, but the U.S. Supreme Court has declined to apply that law, in its pure form, to Guantánamo detainees. In its 2004 decision in Rasul v. Bush, the Court determined that federal courts had (statutory) habeas jurisdiction to review the legality of detentions at Guantánamo Bay,167 and it justified that determination in part by distinguishing the Guantánamo Bay detainees from detainees in more conventional armed conflicts.168 The Rasul Court did not answer whether its jurisdictional ruling applied to all non-battlefield detainees held outside the United States, or only to those at Guantánamo Bay. It also did not identify the substantive law under which the Guantánamo detentions should be reviewed. It thus did not answer whether the law of armed conflict governs.169 Nevertheless, the Court

to address through the ordinary criminal process. Notably, however, some liberty-restricting measures have also been ineffective in containing the threat; a few suspects subject to such measures have subsequently disappeared and thus can no longer be monitored. See Philip Johnston, DNA Loophole Is Hindering Terror Police, Says Reid, Daily Telegraph (U.K.), June 8, 2007, at 12. 165

See Third Carlile Report, supra note 164, at 19.

166

Brief for Respondent at 2, 7–8, Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (No. 05–184).

167

542 U.S. 466, 485 (2004).

168

Id. at 476.

169

The U.S. Supreme Court has issued three other detainee decisions, but none is clear on whether, in the Court’s view, the law of armed conflict properly governs non-battlefield detentions. Some of its jurisprudence suggests that it believes the law of armed conflict does govern. For instance, in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Court reviewed the detention of a U.S. national captured on the Afghan battlefield. The Court determined that the authority to detain that person was inherent in the congressional grant of authority to use force “‘against those nations, organizations, or persons’” connected to the September 11 attacks. Id. at 510 (quoting Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224

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did afford Guantánamo detainees a legal process without any basis in that law.170 Rasul has since been legislatively reversed (twice),171 and the debate in the United States continues on the extent to which the law of armed conflict governs nonbattlefield detentions, and on the legal process due to detainees.172 After Rasul, the United States established administrative bodies–termed Combatant Status Review Tribunals (CSRTs)–to determine whether detention at Guantánamo Bay is in each case justified.173 Congressional legislation subjects CSRT determinations (2001) (codified at 50 U.S.C. § 1541 (Supp. I 2001))). That grant of authority is certainly expansive enough to also authorize the use of force in a global fight against al Qaeda. If, as Hamdi asserts, the authority to detain is inherent in the grant of authority to use force, then one logical extension of Hamdi is to understand the Congress to have authorized armedconflict detentions of all Qaeda members, irrespective of whether they are captured on a conventional battlefield. The Court seemed to endorse that understanding in Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2795 (2006), when it applied only Common Article 3 to detainees captured in the “conflict with al Qaeda.” When addressing the specific issue of detention, however, the Court has indicated that the law of armed conflict may not govern, or at least that it may not govern alone. In Hamdi, the Court emphasized the narrowness of its holding and concluded that the citizen-detainee must be given the opportunity to contest before a neutral decision-maker the factual basis for detention. See Hamdi, 542 U.S. at 509. As in Rasul, the Court afforded the detainee more process than is required under the law of armed conflict (but less than is afforded in a criminal trial). Moreover, the Hamdi Court questioned whether the law of armed conflict properly governs detentions in situations where “the practical circumstances . . . are entirely unlike those of the conflicts that informed [its] development.” Id. at 521. Recall that the Rasul Court itself underscored that the Guantánamo detentions were unlike detentions in more conventional conflicts. See supra note 168 and accompanying text. The Court’s fourth detainee decision, Rumsfeld v. Padilla, 542 U.S. 426 (2004), presented the question of whether the government could detain a non-battlefield, U.S. citizen-detainee captured in the United States. The Court, however, did not reach that question, and instead dismissed the petition for having been filed in the wrong jurisdiction. Id. at 451. For a comprehensive discussion of the Court’s detainee decisions, see Richard H. Fallon, Jr. & David J. Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, 120 Harv. L. Rev. 2029 (2007). 170

For a more extensive discussion on the failure of the U.S. Supreme Court even to look to the law of armed conflict for guidance, see W. Michael Reisman, Rasul v. Bush: A Failure to Apply International Law, 2 J. Int’l Crim. Just. 973 (2004).

171

Detainee Treatment Act of 2005, Pub. L. No. 109–148, div. A, § 1005(e)(1), 119 Stat. 2739, 2742 (to be codified as amended at 10 U.S.C. 801 (e)(1)); Military Commissions Act of 2006, Pub. L. No. 109–366, sec. 7(a), 120 Stat. 2600, 2636 (to be codified at 28 U.S.C. § 2241(e)(1)).

172

See infra notes 176–177 and accompanying text; Al-Marri v. Wright, 487 F.3d 160, 183 (4th Cir. 2007), petition for reh’g en banc granted, No. 06-7427 (4th Cir. Aug. 22, 2007) (concluding that the law of armed conflict does not govern the detention of a (foreign national) non-battlefield terrorism suspect captured in the United States and distinguishing Hamdi on the ground that, unlike in that case, the detainee at issue had no connection to a recognizable battlefield).

173

See Memorandum from Deputy Sec’y Def. to Sec’y Navy on Order Establishing Combatant Status Review Tribunals ( July 7, 2004), available at http://www.defenselink.mil/news/Jul2004/

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to limited review by the Court of Appeals for the District of Columbia Circuit.174 In a July 2007 decision in Bismullah v. Gates, a panel of that court found that, in order for its review of the CSRT determinations to be meaningful, counsel for the detainees must have access to the information based on which their clients are detained, including in most cases classified information.175 At the time of this Article’s publication, the U.S. government has filed a petition for certiorari from the D.C. Circuit’s decision in Bismullah,176 and the U.S. Supreme Court is separately considering whether, now that the statutory basis for habeas jurisdiction has been overturned, federal courts have jurisdiction under the U.S. Constitution to review the legality of Guantánamo detentions.177 However those cases are resolved, the legal process available to Guantánamo detainees has become significantly more elaborate than any process formally required under the law of armed conflict. Nevertheless, that process continues to be flawed and fails to ensure that detention in each case is necessary. Under the CSRTs, detention is permitted if a suspect “was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.”178 Detention thus is permitted based on a suspect’s potential affiliation and irrespective of whether detention is necessary to contain the security threat. For instance, by the government’s own account, detention would be permitted where a person unknowingly sent funds to a Qaeda-linked organization or where she taught a Qaeda member’s son.179 Moreover, the finding that the suspect was part of or supporting a transnational jihadi group may be made based on a low, preponderance of evidence standard with a rebuttable presumption in favor of the government’s evidence.180 In practice, this low standard has enabled the government to maintain detentions without any rigorous determination of necessity.181 Detentions d20040707review.pdf. A separate process, the Administrative Review Boards, has been established to determine whether, once detained, persons may be released. See Order of Deputy Sec‘y Def., Administrative Review Procedures for Enemy Combatants in the Control of the Department of Defense at Guantanamo Bay Naval Base, Cuba (May 11, 2004), available at http://www.defenselink.mil/news/May2004/d20040518gtmoreview.pdf. 174

Detainee Treatment Act of 2005 § 1005(e)(2)(A), 119 Stat. at 2742.

175

Bismullah v. Gates, 501 F.3d 178 (D.C. Cir. 2007); see also Hamdi, 542 U.S. at 533 (“We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.”).

176

Reply Brief for Petitioners-Appellants, Gates v. Bismullah, No. 07-1054 (U.S. Mar. 2008), available at http://www.usdoj.gov/osg/briefs/2007/2pet/7pet/2007-1054.pet.rep.html.

177

Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), cert. granted, 75 U.S.L.W. 3707 (U.S. June 29, 2007) (No. 06–1195).

178

See Memorandum from Deputy Sec’y Def., supra note 173.

179

See In re Guantanamo Detainee Cases, 355 F.Supp.2d 443, 475 (D.D.C. 2005).

180

See Bismullah, 501 F.3d at 181.

181

See Denbeaux & Denbeaux, supra note 134, at 15–20 (reporting on evidence used in CSRTs and Administrative Review Boards). But cf. Combating Terrorism Center,

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have also continued long after detainees have been deemed eligible for release–and thus presumably after the government determined that detention was not (or was no longer) necessary.182 V. DEVELOPING COHERENT STANDARDS State practice thus illustrates that states reject detaining non-battlefield terrorism suspects based on the law of armed conflict, but that they perceive a real need to contain the threat from at least some suspects outside the criminal process. States have employed a variety of extra-criminal measures to satisfy that need. Some such measures were ad hoc and intended to circumvent (rather than to work within or to try to change) the law. But other measures–and specifically the measures of administrative detention–were taken deliberately and with legislative and judicial participation. The use of these measures indicates that, although states have been willing to evade the law, they are groping to operate within it-that is, to develop alternative legal frameworks that satisfy their security needs. An alternative legal framework already exists under human rights law in the form of administrative detention. Yet in order for administrative detention to fill the void for a sustainable detention regime in the fight against terrorism, the law in this area must be further developed. Developing that law would serve two functions. It would inhibit states from exploiting the current legal ambiguity to detain persons in ways that are unnecessary or insufficiently protective of individual liberties. And it would enable states–and particularly states that take seriously their human rights obligations, but also face a real threat from transnational jihadi terrorism–to detain terrorism suspects outside the criminal process but based on a legal framework that establishes meaningful controls. It thus would curb the incentive to resort to ad hoc or uncontrolled measures. This Part outlines four policy goals to inform the development of law on securitybased administrative detention as it applies in the fight against terrorism. First, detainees must be afforded prompt legal process, in which they have (at the very least) a meaningful opportunity to challenge, before a neutral arbiter, the facts giving rise to detention and to offer evidence in rebuttal. Second, the standard of non-arbitrariness must be made more robust. Extended security-based detention should be considered non-arbitrary only in narrowly defined circumstances: where the detainee himself poses a serious security threat, where detention is necessary to contain that threat, and where it is designed to last no longer than necessary. Third, An Assessment of 516 Combatant Status Review Tribunal (CSRT) Unclassified Summaries (2007) (arguing that the Denbeaux and Denbeaux study has methodological flaws). 182

See, e.g., 3 Detainees at Guantanamo Are Released to Albania, Wash. Post, Nov. 18, 2006, at A13; Josh White & Julie Tate, 4 Men Cleared of Terrorism Links but Still Detained, Wash. Post, May 20, 2006, at A18; Craig Whitlock, 82 Inmates Cleared but Still Held at Guantanamo, Wash. Post, Apr. 29, 2007, at A1 (reporting that about eighty-five Guantánamo detainees have been deemed eligible for release).

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with that enhanced standard of non-arbitrariness, pure security-based detention should be permitted. And finally, any state that employs a system of administrative detention must define the boundaries between it and the criminal process. A. Prompt and Meaningful Legal Process States must afford detainees prompt, fair, and meaningful legal process on the lawfulness of detention. The comprehensive human rights instruments all establish the requirement of judicial review,183 and oversight bodies consistently underscore the importance of such review to check against capricious or unjustified detention.184 Moreover, the absence or inadequacy of judicial review has been the primary concern expressed by various human rights bodies with respect to U.S. detention practices.185 Those same concerns have animated the debate within the United States, and ultimately have compelled the U.S. government to make the legal process at Guantánamo Bay more rigorous.186 The availability of meaningful legal process is critical because, unlike traditional combatants, terrorists operate by blending into the general population, and any counterterrorism detention regime thus is likely to target a relatively high number of innocents–persons who are suspected of posing a threat but in fact do not. Legal process may be fair and meaningful even if detainees are not afforded the full panoply of safeguards that a state ordinarily affords criminal defendants. Many such safeguards reflect a state’s own legal and normative traditions and are not required by international law. Indeed, domestic criminal justice systems vary significantly across jurisdictions. Some states employ a standard of proof of beyond a reasonable doubt, but others use something closer to a preponderance of the evidence standard.187 Some categorically exclude certain forms of evidence (such as hearsay or evidence obtained unlawfully), while others admit such evidence on the understanding that the adjudicator will take into account its potential unreliability.188 Given this variance, no one system can be said to embody the best or only 183

See supra note 76 and accompanying text.

184

See, e.g., U.N. Econ. & Soc. Council [ECOSOC], Working Group on Arbitrary Detention, Civil and Political Rights, Including the Question of Torture and Detention, ¶¶ 77–78, U.N. Doc. E/CN.4/2005/6 (Dec. 1, 2005); General Comment No. 29, supra note 51, ¶ 16; General Comment 8, supra note 72.

185

See supra notes 122–125 and accompanying text.

186

See supra notes 167–175 and accompanying text.

187

See Thomas V. Mulrine, Reasonable Doubt: How in The World Is It Defined?, 12 Am. U. J. Int’l L. & Pol’y 195, 214–23 (1997) (comparing the standards of proof in criminal cases across jurisdictions); Michele Taruffo, Rethinking the Standards of Proof, 51 Am. J. Comp. L. 659, 665–69 (2003) (asserting that many civil code countries do not employ a criminal standard of proof of beyond a reasonable doubt).

188

Andrew L.-T. Choo, Hearsay and Confrontation in Criminal Trials 34 (1996). Indeed, international criminal tribunals themselves admit evidence that would be inadmissible under the common law tradition. See, e.g., Prosecutor v. Delalić, Case No. IT-96-21-T, Decision

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way to ensure criminal defendants fair legal process. Thus, the legal process afforded to administrative detainees might reasonably deviate from a state’s own rules of criminal procedure while still being fundamentally fair and consistent with international law. That said, it is extraordinarily difficult to identify with specificity the minimum legal process that should be permitted under a system of administrative detention, and human rights law currently gives us little guidance. Broadly speaking, terrorism suspects must have the prompt and meaningful opportunity to challenge, before a neutral arbiter, the facts giving rise to detention and to offer evidence in rebuttal. The promptness requirement means that detainees must have at least a preliminary opportunity to contest their detentions within a matter of days, not months.189 This requirement renders a system of administrative detention potentially more liberty-protecting than the criminal process because innocent terrorism suspects may demonstrate within days that they do not pose a threat and that detention is therefore unwarranted–an option that may not exist to escape extended pretrial detention under the criminal process.190 The requirement that judicial review be meaningful entails at least three things. First, the reviewing body must have the authority to order the detainee’s release if it determines that detention is unjustified.191 Without that authority, judicial review is vacuous. Second, the detainee must be equipped to participate in that process and to pursue her rights within it. This almost certainly requires legal on the Motion of Prosecution for Admissibility of Evidence, ¶ 16 ( Jan. 19, 1998); Prosecutor v. Tadić, Case No. IT-94-1, Decision on Defence Motion on Hearsay, ¶¶ 14, 19 (Aug. 5, 1996); Richard May & Marieke Wierda, Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague, and Arusha, 37 Colum. J. Transnat’l L. 725, 745–53 (1999). 189

See General Comment 8, supra note 72, ¶ 2 (asserting that delays in bringing a detainee before a judge “must not exceed a few days”); see also Nihal Jayawickrama, The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence 406–08 (2002).

190

With respect to pretrial detention in the United States, see 18 U.S.C. § 3142(e) (2000) (permitting pretrial detention upon a judicial finding that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community”). See also Kuckes, supra note 56, at 23 (“[R]outine pretrial criminal hearings . . . are not designed to test the issue that is most fundamental from a due process perspective—whether sufficient evidence of criminal wrongdoing exists to justify depriving the defendant of liberty and property interests pending trial.”).

191

See ICCPR, supra note 51, art. 9(4) (providing for the court to decide on the lawfulness of detention “and order [the detainee’s] release if the detention is not lawful”); see also American Convention, supra note 51, art. 7(6); ECHR, supra note 51, art. 5(4). The requirement that the reviewing body have the authority to order a detainee’s release if it determines that detention is unjustified may present practical complications for the detaining state (for example, if the detainee is not a national or resident of the detaining state, and return to his home country would create a substantial risk of mistreatment). That requirement nevertheless is essential for judicial review to be meaningful. States that engage in security-based detention thus should develop in advance plans for releasing detainees for whom detention is deemed unjustified.

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counsel or some other form of independent representation.192 Finally, the detainee must be informed of the factual basis for detention and be given a genuine opportunity to respond. The D.C. Circuit in Bismullah and the Canadian Supreme Court in Charkaoui both underscored this point: a detainee cannot reasonably challenge the justification for detention if it is not made available to her.193 States that rely on classified evidence to detain terrorism suspects thus must share either that evidence or a substantial substitute with the detainee (or with her representative). This is a compromise approach. States may not invoke the existence of classified intelligence to obstruct a detainee’s opportunity for rebuttal, but they may protect intelligence information, sources, or methods in ways that may be impermissible under the criminal process. For instance, a state may design a system of administrative detention that permits it to keep classified some of the intelligence on which it relies; to share intelligence only with the detainee’s security-cleared representative, and not with the detainee herself; or to present statements from an intelligence source without affording the detainee an opportunity to confront that source in person on the veracity of his statements. B. Non-Arbitrariness Judicial review and the other procedural constraints on detention are critical, but they are only as protective as the underlying substantive standards based on which detention is permitted. Thus, the procedural constraints are not sufficient on their own to prevent abuse. Part III demonstrated, however, that the current substantive constraints on administrative detention are insufficient in the security context. These constraints must be adjusted with non-battlefield detentions in mind. Specifically, such detention should be lawful only where the detainee himself poses a serious security threat, where detention is necessary to contain that threat, and where detention is calibrated to last no longer than necessary. First, in order for security-based detention to be non-arbitrary, the detainee himself must pose a serious security threat. This proposition is supported by the jurisprudence of the Human Rights Committee on detentions outside the security context, and by its conversation with Israel on the detention of “bargaining chips.”194 Moreover, one of the criticisms voiced against the CSRT process at Guantánamo Bay is that it permits detention for anyone who has supported al Qaeda or associated forces without requiring any individualized assessment of threat.195 Not everyone who supports al Qaeda or other transnational jihadi groups poses the state targets of those groups a sufficiently serious threat to warrant security-based 192

See supra note 76.

193

See supra notes 151, 175 and accompanying text.

194

See supra notes 106–108 and accompanying text.

195

See supra note 178 and accompanying text; see also James G. Stewart, Rethinking Guantánamo: Unlawful Confinement as Applied in International Criminal Law, 4 J. Int’l Crim. Just. 12, 23–25 (2006).

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detention. For instance, a Pakistani villager who attends a Qaeda training camp may technically be a member of al Qaeda, but if he does nothing more, he poses western governments no real security threat, and his detention by those governments would therefore be unjustifiable.196 Indeed, his detention would probably be unjustifiable even if he had intelligence information that those governments would consider useful. International law and practice do not appear to condone administrative detention for the purpose of obtaining intelligence where the detainee himself poses no security threat.197 And, in any event, a system of detention designed primarily to obtain intelligence would require a different balance between liberty and security than the balance achieved in a system designed to contain persons who themselves pose a threat. International law must, therefore, establish standards for identifying when a nonbattlefield terrorism suspect poses a sufficiently serious security threat to render his detention non-arbitrary. For guidance, international lawyers might look to the treatment by the law of armed conflict of civilians who participate in the fighting.198 Under the law of armed conflict, civilians may not be the object of military attack, but they lose that immunity from attack “for such time as they take a direct part in hostilities.”199 There continues to be some ambiguity as to what constitutes “direct participation” for purposes of the loss of civilian immunity.200 But civilians generally are understood to lose their immunity when preparing for or returning from combat and when providing logistical support or target information for immediate use.201 By contrast, civilians maintain their immunity when involved in the war effort without themselves posing any threat–for example when working in

196

The law of armed conflict contains no similar requirement for an individualized assessment of threat and instead permits detention based on association. Under that law, membership in the armed forces of a party, or even in a civilian-run organization aimed at causing disturbances, is a sufficient basis for detention. See Geneva Convention III, supra note 34, art. 4(A); Commentary: IV Geneva Convention, supra note 43, at 258.

197

See Pejic, supra note 52, at 380 (“[I]nternment or administrative detention for the sole purpose of intelligence gathering, without the person involved otherwise presenting a real threat to State security, cannot be justified.”).

198

Cf. Ryan Goodman & Derek Jinks, International Law, U.S. War Powers, and the Global War on Terrorism, 118 Harv. L. Rev. 2653, 2655–58 (2005) (discussing the direct participation standard in the context of U.S. detentions based on the Congressional authorization to use military force in response to the September 11 attacks).

199

Additional Protocol I, supra note 34, art. 51(3) (applicable in international armed conflicts); Additional Protocol II, supra note 34, art. 13(3) (applicable in certain non-international armed conflicts); see also Henckaerts & Doswald-Beck, supra note 49, at 19–24 (applicable as a matter of customary international law).

200

See Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2115–16 n.306 (2005).

201

See Bothe, Partsch & Solf, supra note 28, at 301–04; Commentary on Additional Protocols, supra note 39, at 618–19.

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a manufacturing plant that produces materiel for use in the war.202 If the law on the loss of civilian immunity is adjusted for non-battlefield detentions, persons who organize or direct attacks, or who are preparing to commit an attack, might be candidates for detention by the state-targets of those activities. By contrast, persons who provide only financial support to a terrorist organization, or who express a passing commitment to jihad (without doing anything more), might not. The reason for the distinction is that the latter suspects–those who do not or who only indirectly participate in attacks–do not themselves pose a security threat warranting detention, although their activities may warrant criminal sanction203 or libertyrestricting measures short of detention. The determination that someone poses a serious security threat is not easily reviewed by international human rights bodies. As was demonstrated in Part III, neither the Human Rights Committee nor the European Court of Human Rights seriously examines such determinations. These bodies are not equipped or authorized to make those determinations de novo, but their review nevertheless may be made more probing. For example, in Ahani and Chahal, the two bodies could have–and should have–examined more carefully the domestic standards under which the detentions were authorized. The same is true of the Human Rights Committee’s review of the systems for pure security-based detention in India and Israel, and at Guantánamo Bay. In this context, the reasonable belief standard may justify short-but not long-term detention. A state looking to engage in extended detention should be required to demonstrate more than simply a reasonable belief or suspicion that the suspect poses a threat–a substantive standard akin to the one under the law of armed conflict and insufficiently protective of the detainees’ liberty interests in the fight against terrorism. Second, for security-based detention to be non-arbitrary, it must be necessary to contain the threat or to meet the other government interests being pursued. Detention presumably is unnecessary if those interests may be satisfied by less restrictive alternatives. States therefore should be required to consider the availability of such alternatives before they engage in administrative detention, and particularly in extended such detention. Where detention serves more than one interest–for instance, where pre-charge detention serves both a preventative interest in containing the threat and a criminal justice interest in preventing flight or investigating the offense–then it is reasonable for a state to consider both of those interests in assessing the availability of alternatives. But if those interests may be satisfied by less restrictive alternatives, states should be required to employ them.

202

See Bothe, Partsch & Solf, supra note 28, at 301–04; Commentary on Additional Protocols, supra note 39, at 618–19.

203

See, e.g., International Convention for the Suppression of the Financing of Terrorism, Dec. 9, 1999, 39 I.L.M. 270 (requiring states to criminalize the financing of acts of terrorism); S.C. Res. 1373, ¶ 1, U.N. Doc. S/RES/1373 (Sept. 28, 2001) (same).

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Such alternatives may include, for example, restrictions on movement or on access to particular services, as under the 2005 British legislation.204 Finally, the standard of non-arbitrariness should be interpreted to prohibit detentions from lasting any longer than necessary. The procedural mechanism for this is periodic judicial review.205 As a substantive matter, however, it may be extraordinarily difficult to identify the point at which detention is no longer necessary, i.e., to determine whether a person who has been detained for some time would again pose a threat if released. Nevertheless, the duration of detention must be contained.206 Detention enables a state to disrupt ongoing terrorist activity and, if appropriate, to develop a more considered criminal case. It may also remove a suspect from the “game” by putting him and others on notice that he is of interest to the authorities and thus rendering him unattractive as a future operative.207 Over time, those interests that justify detention become less paramount and give way to the liberty interests against detention. The detaining state therefore should be required to satisfy increasingly stringent evidentiary standards to hold a suspect beyond incrementally set periods. For instance, short-term detention might be permitted on a reasonable belief standard, but to continue the detention in the medium-and long-term, the state would have to demonstrate by a preponderance of the evidence or by clear and convincing evidence that detention continues to be warranted.208 Moreover, after a certain point (for example, two years), all or almost all detainees must be released, deported, or criminally prosecuted. To the extent that detention beyond that point is ever justifiable, it is justifiable only in truly exceptional cases–for instance, where a state has demonstrated by clear and

204

See supra notes 162–164 and accompanying text.

205

See, e.g., Human Rights Comm., Communication No. 1090/2002: New Zealand, ¶ 7.3, U.N. Doc. CCPR/C/79/D/1090/2002 (Nov. 6, 2003) (underscoring the importance of “regular periodic reviews of the individual case by an independent body, in order to determine the continued justification of detention for purposes of protection of the public”); Human Rights Comm., Concluding Observations: Republic of Moldova, ¶ 11, U.N. Doc. CCPR/CO/75/MDA (2002) (asserting that “the detention of persons awaiting trial should also be reviewed periodically”); Assenov v. Bulgaria, 28 Eur. H.R. Rep. 652, 690 (1998) (“[A] detained person must be able to take proceedings at reasonable intervals before a court to challenge the lawfulness of his detention where the nature of the deprivation of liberty under consideration would require it.”); cf. Geneva Convention IV, supra note 34, art. 43 (requiring periodic review of the detention of protected persons in armed conflicts).

206

Cf. supra note 112 and accompanying text.

207

See Third Carlile Report, supra note 165, at 17.

208

For purposes of comparison, the (indefinite) civil commitment of persons who are mentally ill is constitutionally permitted in the United States so long as both mental illness and dangerousness are established by at least clear and convincing evidence. See Addington v. Texas, 441 U.S. 418 (1979); see also Jones v. United States, 463 U.S. 354 (1983) (upholding indefinite civil commitment of a mentally ill person where it was established beyond a reasonable doubt that he committed a criminal act and by a preponderance of the evidence that he had a mental illness).

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convincing evidence that a suspect would pose a particularly serious security threat if released. C. Form of Administrative Detention With that enhanced standard of non-arbitrariness in place, pure security-based detention should be permitted.209 States gravitate toward predicating detention on criminal or immigration proceedings because those forms of detention satisfy a variety of interests (i.e., punishment or deportation, in addition to containing the security threat) and are relatively well accepted in international law and practice. Yet detention predicated on future criminal or immigration proceedings may convert informally into pure security-based detention, without adequate controls.210 Moreover, such detention may fail to satisfy the security and liberty interests at stake in the fight against terrorism. For instance, security-based immigration detention responds only to a fraction of the state’s security needs because it permits detention only of foreign nationals and only until the date of deportation. It therefore does not address the threat posed by a state’s own nationals or by foreign nationals outside its jurisdiction, even though the security threat from both groups may be considerable.211 Such detention may also fail to protect the relevant liberty interests. Detention pending deportation is generally designed as a short-term measure, so the standard for detention is often

209

For instance, detention is already permitted in the United States to protect the public from other hazards, including the spread of infectious diseases and dangerous acts committed by the mentally ill or by sex offenders. For a review of such non-criminal, preventative detention in the United States, see Tung Yin, Ending the War on Terrorism One Terrorist at a Time: A Noncriminal Detention Model for Holding and Releasing Guantanamo Bay Detainees, 29 Harv. J.L. & Pub. Pol’y 149, 183–88 (2005). The purpose of such detention, like that of securitybased administrative detention, is not to punish for past acts, but to protect the public from some prospective danger (and sometimes also to rehabilitate the detainee). Notably, the U.S. Supreme Court has suggested that the preventative detention of terrorism suspects may sometimes be lawful. In Zadvydas v. Davis, 533 U.S. 678 (2001), the Court construed a statute on immigration detention not to permit indefinite detention because it was not sufficiently narrowly tailored. The Court explained that “[t]he provision authorizing detention does not apply narrowly to ‘a small segment of particularly dangerous individuals,’ say, suspected terrorists, but broadly to aliens ordered removed for many and various reasons. . . .” Id. at 691 (internal citation omitted) (emphasis added). This language suggests that indefinite immigration detention might be lawful in the United States if it is narrowly tailored, for example, to apply only to certain terrorism suspects. More recently, during the oral argument in Boumediene v. Bush, Justice Breyer suggested that Congress might have the authority to design a narrowly tailored system of preventative detention to contain terrorism suspects outside the immigration context. See Transcript of Oral Argument at 39, 47, 54, Boumediene v. Bush, (2007) No. 06-1195.

210

See supra Part III.

211

A v. Home Secretary [2004] UKHL 56, [2005] 2 A.C. 68, ¶¶ 33–35 (questioning the extent to which immigration detention responds to the alleged threat, especially given the potential threat posed by a state’s own nationals).

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quite low.212 In the counterterrorism context, however, deportation proceedings may become protracted or infeasible because of the risk of home-country mistreatment. States that hinge security-based detention on deportation proceedings thus may engage in extended detention without any rigorous demonstration of necessity. If states were instead permitted to develop systems of pure security-based detention, they could make detention decisions on the basis of the severity of the threat (and not only on the nationality of the suspect), but such decisions would be subject to controls that are unnecessary where the goal of deportation is immediately realizable. In other words, pure security-based detention would enable states to better satisfy the liberty and security interests at stake in this context. D. Relationship to the Criminal Law Finally, states that employ security-based administrative detention must define the boundaries between it and the criminal process so that legal standards govern who is processed through which system and when.213 International law and practice currently provide almost no guidance on this issue, and the questions posed are not easily answered. One question is whether administrative detention should be a last resort that is available only when the criminal law is not, or whether the availability of the criminal law should be irrelevant. The United Kingdom’s 2005 legislation leans toward the former approach. Because the government must consider filing criminal charges against anyone subject to pure security-based detention, extended detention is permitted in the United Kingdom only when the criminal process is deemed unavailable.214 A second question relates to the procedures for prosecuting persons who have previously been detained administratively. Should these persons be tried under the state’s ordinary rules of criminal procedure, or should states develop different rules to facilitate terrorism-related prosecutions? For instance, where an administrative detainee is interrogated without the procedural safeguards afforded to criminal defendants, should the information obtained be admissible in a subsequent criminal trial, even if it would not be admissible in the trial of a more ordinary criminal defendant? Section II.C argued that states that deviate in the counterterrorism context from their ordinary rules of criminal law or procedure risk contaminating their criminal justice systems more generally.

212

The U.K. legislation at issue in A. v. Home Secretary and the Canadian legislation sustained in Charkaoui both permit extended detention under a reasonable belief standard. Id. ¶ 2; see Immigration and Refugee Protection Act, 2001 S.C., ch. 27, § 82 (Can.).

213

For example, the U.S. government has been criticized for transferring detainees between the criminal and the armed-conflict systems without clear standards or controls. See John Ip, Comparative Perspectives on the Detention of Terrorist Suspects, 16 Transnat’l L. & Contemp. Probs. 773, 811 (2007); Jesselyn A. Raddack, You Say Defendant, I Say Combatant: Opportunistic Treatment of Terrorism Suspects Held in the United States and the Need for Due Process, 29 N.Y.U. Rev. L. & Soc. Change 525, 526–28 (2005).

214

See supra notes 162–164 and accompanying text.

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Yet a number of states have already developed special rules of criminal procedure applicable in terrorism cases.215 VI. CONCLUSION International practice demonstrates that, although most states have declined to detain non-battlefield terrorism suspects based on the law of armed conflict, many are looking for options for incapacitating these suspects outside the criminal process. The bipolar paradigm for thinking about non-battlefield detentions–as armed-conflict or criminal–is out of step with that practice and is mistaken as a matter of law. Human rights law permits administrative detention for reasons of national security, subject to important constraints. Those constraints are not now sufficient in the counterterrorism context. But if the law in this area is developed, administrative detention may strike the most appropriate balance between liberty and security for certain categories of terrorism detainees. This Article articulates four broad policy goals for developing the law on securitybased administrative detention in the fight against terrorism. First, detainees must be afforded prompt and meaningful legal process. Second, extended administrative detention is permissible only in specified circumstances–i.e., where the detainee himself poses a serious security threat, where detention is necessary to contain that threat, and where detention lasts no longer than necessary. Third, in those circumstances, security-based detention need not be tied to other legal proceedings, such as future criminal trial or deportation. And finally, any state that employs a system of administrative detention must carefully define the boundaries between it and the ordinary criminal process. In articulating these policy goals, this Article does not purport to offer a comprehensive legislative scheme. Much still must be done to refine the international legal rules and to implement them domestically. This Article does, however, argue for shifting the debate to those questions and away from the stale armed-conflictor-criminal divide. This shift is imperative. Transnational jihadi terrorism is here to stay, and it will increasingly be fought away from any conventional battlefield. In the absence of any legal template for dealing with non-battlefield suspects, states must choose between exposing themselves to devastating attacks and pursuing uncontrolled or ill-suited measures to contain the threat. Neither path is sustainable.

215

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For examples of states that employ special rules of criminal law or procedure in terrorism cases, see, for example, supra notes 144–147 and accompanying text (France); Straw, supra note 141, ¶ 93 (noting Spain’s “adaptations of normal procedures” in “terrorist and organized crime cases”); and C.H. Powell, Terrorism and Governance in South Africa and Eastern Africa, in Global Anti-Terrorism Law & Policy, supra note 57, at 555, 574–75 (noting relaxed rules of evidence in terrorism cases in Tanzania, Uganda, and Kenya). TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008

AMERICAN NATIONAL SECURITY PRESIPRUDENCE Robert F. Blomquist†

Copyright © 2008 Law Review Association of the Quinnipiac University School of Law; Robert F. Blomquist. Originally published in Quinnipiac University Law Review (2008)

I. INTRODUCTION In the six years (and counting) that have elapsed since the horrific events of September 11, 2001, the fundamental nature of American national security has been subject to reexamination and reform.1 Indeed, American national security studies have been revolutionized during the first half decade of the twenty-first century. These studies have shifted from an obsession about threats posed by antagonistic (and potentially antagonistic) state adversaries, like the Peoples’ Republic of China, to a focus on threats of “asymmetrical warfare” by non-state insurgent guerrilla groups like Al Qaeda and the insurgency groups in the aftermath of Operation Iraqi Freedom.2 The key American official in the formulation and implementation of American national security law and policy is the President of the United States. Yet, as every American law student learns, there are checks and balances with which the President must contend in managing national security issues; indeed, the Congress and the federal judiciary also have their constitutional roles to play in this realm. In an earlier article, I argued that by virtue of the Presidential Oath Clause in Article II, Section 1 of the Constitution, and the constitutionally imposed condition of taking that oath before assuming the executive power,3 the President has the paramount federal responsibility to articulate, safeguard, and watch over the American national interest.4 I went on to suggest that, in the spirit of existing †

Professor of Law and Swygert Research Fellow, Valparaiso University School of Law. B.S., University of Pennsylvania (Wharton School), 1973; J.D., Cornell University, 1977. My thanks go to the International Law Society at Valparaiso for an invitation to provide a preliminary lecture on this topic in April 2006. My thanks also go to H. Jefferson Powell and Peter RavenHansen for helpful comments regarding an earlier draft.

1

See infra Part II.B.

2

See Thomas P.M. Barnett, The Pentagon’s New Map: War and Peace in the TwentyFirst Century 89–96 (2004), for a discussion of post-9/11 asymmetrical warfare.

3

U.S const. art. II, § 1, cl. 8.

4

Robert F. Blomquist, The Presidential Oath, the American National Interest and a Call for Presiprudence, 73 Umkc L. Rev. 1, 51 (2004) (cited in McCreary v. ACLU of Kentucky, 545 U.S. 844, 873 (2005) (Scalia, J., dissenting)).

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scholarly fields of endeavor which attempt to systematize and critique the coherence and robustness of the judiciary’s legal work product (jurisprudence) and the legislature’s legal work product (legisprudence), it was time to bring a cognate focus on the legal work product of the President–what I call presiprudence.5 While I sketched the theory and purpose of presiprudence in my earlier essay, I left the specific elaboration of presiprudence case studies for another day. This Article maps the rough contours of presiprudence in American national security law and policy in the post-9/11 world. First, Part II argues that the President (and future Presidents) should pursue a maximum-security American state in light of: (a) the President’s constitutional role of national security sentinel, (b) new geopolitical realities, and (c) the availability of effective technological innovations that will enhance security and surveillance.6 Next, Part III considers the limits of this presidential pursuit given the following constraints: economics, psychology, politics, and law.7 Finally, Part IV attempts to offer what I call the presiprudence of American national security law and policy in the post-9/11 era.8 This Section offers Presidents both specific and general guidelines for balancing security with liberty, in other words, for protecting the American nation while preserving our traditions of reasonable freedom. II. THE LOGIC OF THE PRESIDENTIAL AMERICAN MAXIMUM-SECURITY STATE A. The President as National Security Sentinel American historian Forrest McDonald has convincingly demonstrated in his magisterial opus, The American Presidency: An Intellectual History,9 that “the 5

Id. at 50–52. The presidential oath is properly understood as the constitutional keystone of the American Republic: it commands the President of the United States to preserve, protect and defend—as well as articulate, pursue, and achieve, —the legal embodiment of the American national interest. A new field of inquiry, which I have coined presiprudence, may help scholars elaborate theoretical insights on the President’s pursuit of the legal national interest. Id. at 52. Cf. Richard M. Pious, Inherent War and Executive Powers and Prerogative Politics, 37 Presidential Stud. Q. 66, 74 (2007) (“The relationship between the oath of office (requiring the president to execute the office and preserve, protect, and defend the Constitution, but not mentioning execution of the law) and the clause that requires the president to ‘take care that the laws be faithfully executed’ leaves open the possibility that a president in fulfilling his oath, may decide that specific laws need not or cannot be executed, especially in emergency situations”).

6

See infra Part II.

7

See infra Part III.

8

See infra Part IV.

9

Forrest McDonald, The American Presidency: An Intellectual History (1994). McDonald has largely been overlooked by legal scholars; yet, because McDonald’s book on the presidency draws together several vital intellectual strands (English constitutional history,

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presidency has been and remains a powerful force for ensuring domestic tranquility among a diverse and sometimes bellicose people, and it has served well to protect the nation in a dangerous and often hostile world.”10 The President’s unique protective role has evolved, according to McDonald, because of a broad interpretation of presidential power, which is contrary to the view espoused by strict constructionists of presidential authority.11 This broad interpretation nourished the roots of the presidency at its inception by the Founders, and catalyzed the maturation of the high national office that occurred during ensuing centuries.12 1. The Intellectual Roots of the American Presidency This Section discusses the intellectual roots of the American presidency–those antecedents in legal history and political philosophy, the lessons of history, and the lessons of Colonial and Revolutionary experience-that indicate the Founders fashioned the institution with the contextual expectation and goal for Presidents to have expansive powers to pursue American national security. a. Great Commentators of English Law and Constitutional Custom “The Framers of the United States Constitution were familiar with . . . great commentators of English law and constitutional custom.”13 Indeed: As it happened, most of the commentators whom American lawyers routinely studied–including Henry Bracton of the thirteenth century, Sir John Fortescue of the fifteenth, and Sir Edward Coke and Matthew Hale of the seventeenth, though not Sir William Blackstone of the eighteenth–had penned their works during times of severe constitutional crisis in England. Preparing for the bar in America therefore eighteenth century American intellectual history, and Anglo-American political legal history) which have been under-appreciated and even warped by some legal commentators, this part of my Article will extensively rely on McDonald as a corrective account of the national security powers of the President. 10

Id. at 481.

11

See id. at vii–viii (discussing the political slant on interpretations of powers of the presidency with Democrats “espousing the aggrandizement of the presidency” from the time of the New Deal through the Eisenhower years and Republican favoring a strict construction of presidential powers during this time frame followed by a “crossover,” after the Johnson and Nixon administrations that solidified after the election of Ronald Reagan, with political partisans flipping interpretational positions with the Democrats favoring strict construction of presidential powers and “Republicans coming to believe that presidential power was a pretty good thing after all”).

12

These forces combined, in the face of “limited formal power” restrained, in turn, by “the countervailing power of Congress, the courts, the bureaucracy, popular opinion, the news media, and state and local governments,” McDonald, supra note 9, at 1, to result in presidents being afforded “with unique opportunities to persuade others to do their bidding—opportunities enhanced by the possibility of dispensing favors, by the mystique of presidential power, and by the aura of monarchy that surrounds the president.” Id.

13

McDonald, supra note 9, at 12–13.

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educated lawyers in the history of the British monarchy, and nearly two-thirds of the delegates to the Philadelphia convention had had such educations.14 Initially, Bracton had expounded on the extensive powers of kings: “kings ruled by divine right and were the vicars of God [,]”15and “‘[t]he king has no equal within his realm.”’16 The maxim of Ulpian, one of the key authors of the Justinian Code, is relevant in modern times, to wit, “quod principi placet legis habet vigorem–whatever pleases the prince has the force of law.”17 Bracton also wrote, however, that the king must “temper his power by law, which is the bridle of power[,]” because he “is called rex not from reigning but from ruling well, since he is a king as long as he rules well but a tyrant when he oppresses by violent domination the people entrusted to his care.”18 Although laws and customs regarding the “redressing [of ] private or public wrongs and protecting private rights” bound the king’s jurisdiction, Bracton distinguished limited jurisdiction from the awesome power of governance.19 The latter, according to Bracton, consisted of “controlling those who would rise in revolt and disturb the peace of the realm”; in this regard, “the king’s power is absolute and not fit for the tongue of any lawyer.”20

Two centuries later, following Bracton, Fortescue (writing in the 1400s) essentially agreed with Bracton “that the king was absolute in certain areas and bound by law in others.”21 In turn, two centuries after Fortescue, Sir Edward Coke (writing in the 1600s) acknowledged the king’s prerogative power to issue royal proclamations having the force of law. In the Case of Proclamations decided in 1611, however, Coke wrote, “The King cannot change any part of the common law nor create any offence by his proclamation which was not an offence before, without Parliament.”22 Following closely on the heels of Coke in the early seventeenth century was an English common lawyer, Matthew Hale, who published a treatise “that became a standard manual for American lawyers,” The History of the Pleas of the Crown,

14

Id. at 13 (emphasis added).

15

Id. at 14 (citing 2 Henry Bracton, On the Laws and Customs of England 33 (Samuel E. Thorne trans., Samuel E. Thorne & George E. Woodbine eds., 1968)).

16

Id. (quoting 2 Henry Bracton, On the Laws and Customs of England 33 (Samuel E. Thorne trans., Samuel E. Thorne & George E. Woodbine eds., 1968)).

17

Id. McDonald, supra note 9, at 14 (internal quotation marks omitted).

18

Id. at 15 (internal quotation marks omitted) (citing 2 Henry Bracton, on the Laws and Customs of England 305 (Samuel E. Thorne trans., Samuel E. Thorne & George E. Woodbine eds., 1968)).

19

Id.

20

Id. (internal quotation marks omitted).

21

McDonald, supra note 9, at 21.

22

Id. at 25.

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and another important book entitled, The History of the Common Law.23 Both books saw later editions published well into the mid-1700s, influencing American lawyers’ constitutional analysis of the English monarchy.24 “Hale repeated his predecessors’ view that the king’s power was exercised through two different channels, which he called ‘jurisdiction’ and ‘empire or command,’ suggesting that such duality inheres in executive authority.”25 The expansive area of kingly “command,” according to Hale, “included the powers to conduct foreign relations, make war or peace, [and] suppress insurrections,” among other foreign and domestic powers.26 Sir William Blackstone’s Commentaries on the Laws of England, published in America for the first time in 1771–1772 (about fifteen years before the Constitutional Convention in 1787), had a profound impact on the “American president-makers,” as McDonald calls these legally-trained public men who deliberated on the creation of the institution of the presidency during the Convention.27 Blackstone delineated and analyzed the royal prerogative, “‘in the exertion whereof consists the executive part of the government.”’28 In this regard, Blackstone argued that the king must be accorded “will and discretion . . . [since] ‘in any practical system of laws, to point out beforehand those eccentrical remedies, which the sudden emergence of national distress may dictate,”’ is impossible and unwise.29 Importantly, the American Founders likely read Blackstone’s admonition that “[t]he king’s irresistible and absolute prerogative consisted (as Mr. Locke has well defined it) in the discretionary power of acting for the public good, where the positive laws are silent”–subject to Parliament’s power to impeach or to see the prosecution of the king’s advisers.30 Blackstone also mentioned the importance in English constitutional history of the king’s “coronation oath to conserve the peace,” and the king’s power to take appropriate royal actions to preserve the peace of the realm.31

23

Id. at 26 (citing Matthew Hale, The History of the Pleas of the Crown (London, T. Payne 1778) (1736); Matthew Hale, The History of the Common Law of England (London, T. Waller 1739) (1713)).

24

Id.

25

McDonald, supra note 9, at 26.

26

Id.

27

Id. at 29; see also id. at 27–36.

28

Id. at 32 (quoting 1 William Blackstone, Commentaries on the Laws of England 242 (1791)).

29

McDonald, supra note 9, at 32 (quoting 1 William Blackstone, Commentaries on the Laws of England 244 (1791)).

30

Id. (emphasis added) (internal quotation marks omitted).

31

Id. at 33–34; see also 1 William Blackstone, Commentaries on the Laws of England 259 (1791).

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b. Political Theory The Framers of the United States Constitution had another “potentially useful body of thought that was available” during their deliberations and eventual consensus on the American presidency: “a large body of political theory” on government and politics.32 According to McDonald, Machiavelli’s 1513 book, The Prince (published in English in 1640), although rarely cited by American political writers in colonial and revolutionary Federalist America, was nevertheless highly influential on the Founders because Machiavelli “was studied by most of the political thinkers whom Americans read, and thus they felt his influence indirectly.”33 As McDonald eloquently explained: Machiavelli’s prince was an executive, not a monarch. In part this was because a monarch was inherently above ordinary mortals and was bound only by God’s law; Machiavelli’s prince was a mortal, concerned solely with the temporal. He was more particularly an executive, however, because the prince was ever concerned with expediency, with resiliency, with improvisation and adaptation. If he was by nature cautious, he must act boldly when circumstances required boldness. . . . He had to deceive and dissimulate and appear to be whatever was advantageous, and he had to be willing to do great wrongs when expedience dictated. He could seduce Fortune and escape her destructive and fickle influence only if he could change his nature with times and affairs.34

Machiavelli’s “prescription” for executive governmental authority in the modern world “was too strong for most Americans’ palates”35 and had to be diluted to reach consensus at the Philadelphia Convention of 1787. Nevertheless, “Machiavelli was relevant to the creation of the presidency because he showed how and why the prince or the governor of a republic must go where the law cannot go.”36 c. History’s Lessons For a majority of the Constitutional Founders, the lessons of history were even “more valuable than political theory because [history] was more real; . . . history was philosophy teaching by example.”37 The Founders, indeed Americans in general, were familiar with the evolution of robust executive power detailed in the story of the ancient Hebrews in the Bible.38 32

McDonald, supra note 9, at 38.

33

Id. at 42.

34

Id. at 40 (internal quotation marks omitted).

35

Id. at 42.

36

McDonald, supra note 9, at 42 (emphasis added). McDonald has demonstrated how Machiavelli “was studied by most of the political thinkers whom Americans read,” such as Sir Walter Raleigh, and Francis Bacon, who in turn was much admired by Thomas Jefferson. Id.

37

Id. at 67.

38

Id. at 68.

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Moreover, examples of the ancient Greeks in governmental affairs interested Americans of the founding generation.39 “John Adams described [the Lacedaemonian constitution] as the most nearly balanced constitution in the ancient world.”40 Lacedaemonia had a “mixed system of [strong executive] government long before the concept of mixed government had been formulated.”41 The ancient Lacedaemonian model relied on “mutually supporting oaths that the constitution and laws be kept inviolate”; these oaths were taken once a month by two kings and five magistrates called the ephori.42 The fictional writings of Herodotus on ancient Persian history likewise piqued the attention of the founding generation.43 Herodotus’s story on the discussion of the Persian conspirators who chose monarchy as the ideal form of government attracted attention, especially the conspirators’ dictum: “What government can possibly be better than that of the very best man in the whole state?”44 “The example of Rome was [also] valuable to the American Framers partly as a caution and partly for its many permutations in the relationship between executive power and the other branches of government.”45 Ancient Rome had started by absolute kingly rule; later, however, the Roman king was replaced by two consuls who “could propose legislation to the popular assemblies only after obtaining approval from the Senate, and when laws were passed they required ratification by the Senate.”46 English history was another source of instruction for the American Founders. One of the key lessons “for [the] American Framers . . . was that the formal distribution of powers between legislative and executive is not so important as institutionalized means of cooperation.”47 A popular Tory history of England by David Hume, published in six volumes between 1754 and 1762, was quoted at the Constitutional Convention by Alexander Hamilton, and was well known by Thomas Jefferson.48 “The great value of Hume’s history lay not in its shocking effect upon Whig sensibilities but in its crisp analysis of the need for and nature of executive power.”49 As McDonald notes: “[t]he trouble was that the workings of the law were too 39

McDonald, supra note 9, at 72, 73.

40

Id. at 75.

41

Id. at 74.

42

Id.

43

McDonald, supra note 9, at 78.

44

Id. at 78 (internal quotation marks omitted).

45

Id. at 81.

46

Id. at 83.

47

McDonald, supra note 9, at 94.

48

Id. at 94–97.

49

Id. at 95.

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general and too rigid to apply with dispatch in all circumstances,” and, in a world of political instability and conspiratorial plots, “a more flexible system was necessary to preserve the public order and to give meaning to public liberty.”50 Hume also called for executive discretionary power to rapidly address emergent threats to the social order, but that the methods used by the executive must be nuanced and nimble.51 d. Colonial and Revolutionary Experience The insights gained by the Founders in considering the Colonial experience and the Revolutionary experience with Great Britain were instructive in shaping their conception of the need for a strong and vigorous American presidency. On the one hand, throughout the mid and later 1700s, “[u]ntil the very eve of independence, the vast majority of colonials professed and genuinely felt loyalty and affection for King George III.”52 They felt betrayed, however, when “news came from London that the king had personally denounced the American ‘rebels”’ and ordered force to keep the colonies under submission.53 The colonials felt betrayed because their “belief in the virtue of this Patriot King had been intense.”54 On the other hand, given the frustrating experience of American public men during the revolutionary and pre-Constitutional era of 1776 to 1787, many were convinced of the need to provide for strong national executive authority. This experience included witnessing the “multiplicity of executives” in the Continental Congress and state governments trying (sometimes at cross-purposes) to win the war against Great Britain, and then, once it had been won, to govern the postrevolutionary American nation. Crisis after crisis arose during the war, and as the United States managed to survive and ultimately win the decisive battle at Yorktown in 1781, no small number of Americans believed that God had indeed protected them. But some also believed that American security and liberty could not last long unless a stronger central government, complete with a powerful chief executive, was created. After the war, when half-hearted civil wars and rebellions began to erupt, that conviction became more widespread, and the establishment of the Constitution became possible. To put it differently, experience taught Americans that safety and ordered liberty cannot exist without competent government and that government without executive authority is no government at all.55 Indeed, Shays’ Rebellion during 1786 and 1787 helped motivate twelve state legislatures and the Continental Congress to endorse a 50

Id. at 95–96.

51

McDonald, supra note 9, at 96.

52

Id. at 99.

53

Id. at 124.

54

Id. at 124.

55

McDonald, supra note 9, at 126 (emphasis added).

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national constitutional convention in Philadelphia, at a time when “no small number of people began to say that the experiment in republicanism had failed, that Americans needed a king.”56 In addition, the virtuous behavior of George Washington during the early 1780s in putting down a nascent insurrection of troops and later bidding farewell to his troops and handing his resignation to Congress made the office of the presidency–with strong executive powers to protect the national security–“thinkable.”57

2. The Constitutional Establishment of the Presidency Among the delegates to the Constitutional Convention of 1787, “[o]n the whole, advocates of a strong executive were more prestigious, more able, and more numerous than their opposite numbers.”58 Indeed, strong executive proponents included such luminary Founders as George Washington, Alexander Hamilton, Charles Pinckney, Robert Morris, James Wilson, Gouverneur Morris, James Madison, John Rutledge, and William Livingston.59 Amazingly, debate about the presidency during deliberations in the summer of 1787 resulted in “[a]lmost no progress . . . [because] the discussions went in circles.”60 Nobody had been able to devise a satisfactory mode of electing the president that would make him independent of Congress, and nobody was willing to vest real power in an office that was subordinate. It seemed safer simply to lodge executive authority directly in Congress, and, accordingly, the draft constitution as it stood in early September–a scant eight days before the final version was written–deposited most of the traditional domestic executive powers in Congress and lodged the federative powers in the Senate.61

Then at the last moment, following a suggestion by Pierce Butler of South Carolina for an electoral college to choose the President, “the constitutional order clicked into place” with the transfer of “a few powers from the Senate to the executive, and the presidency had been born.”62 The convention completed its work soon thereafter, and the resolutions were then turned over to a committee of style headed by Gouverneur Morris. Through elegant and concise wordsmithing, the committee created the final draft which, after final group tinkering, became the proposed

56

Id. at 149.

57

Id. at 143. “To a western world steeped in the history of usurpations by commanders of popular armies–from Marius and Sulla and Caesar to Cromwell–this was an awesome display of disinterested love of country.” Id. at 143.

58

McDonald, supra note 9, at 162.

59

Id. at 161.

60

Id. at 163.

61

Id.

62

McDonald, supra note 9, at 163.

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Constitution of the United States on September 17, 1787.63 While the precise meaning of the vesting clause in Article II–“[t]he executive power shall be vested in a President of the United States”64–remained “unanswered,”65 a strong argument for one meaning is premised on the intellectual history of that critical clause: That language differs sharply from that of Article 1: “All legislative powers herein granted shall be vested in a Congress of the United States”. . . . The more general vesting in Article 2, combined with the specification of certain presidential functions and duties, presupposes that “executive power” had an agreed-upon meaning. Given the delegates’ knowledge of the subject from history, political philosophy, and experience, it seems evident that some of them, at least, thought of executive power as contingent and discretionary: the power to act unilaterally in circumstances in which the safety or the well being of the republic is imperiled; power corresponding to that of ancient Roman dictators, or to Bracton’s gubernaculum, or to Fortescue’s dominium regale; power, in sum, that extends beyond the ordinary rules prescribed by the Constitution and the laws.66

During the months following the end of the Convention in September of 1787, state ratification conventions debated and voted upon the proposed Constitution of the United States. Despite some heated and ill-considered comments made in these state proceedings, “it remains true that the ratification process gave the Constitution and the presidency their legitimacy.”67 Furthermore, “the original understanding of the presidency confirms what is apparent from a reading of the text of Article 2, namely that the Constitution authorizes either an active or a passive presidency.”68 It all depends on the skill, vision, energy, and strategy of the individual President and the president’s advisers; the tenor of national and world events and threats; as well as a measure of luck. Thus, If a presidential administration is appropriately motivated, politically skilled, and sufficiently popular, it can overcome the various constitutional checks and establish in effect a presidential government–without violating the primary design that government be limited in scope. Absent these qualities, the government of the United States can be (and often has been) congressional government or government by judiciary.69

Alexander Hamilton’s Federalist essays 70 and 23 are particularly vital to understanding his influential view of the presidency. “Hamilton believed that in the final analysis the federal government and particularly the executive branch must have

63

Id. at 178.

64

U.S. Const., art II, § 1.

65

McDonald, supra note 9, at 181.

66

Id. (quoting U.S. Const., art I, § 1 (emphasis added)).

67

Id. at 185.

68

Id.

69

McDonald, supra note 9, at 185.

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whatever power was needed to protect the safety and well being of the republic.”70 Indeed, Hamilton’s Federalist essay 70 was an eloquent “philosophical analysis of the nature of executive power, its role in a free government, and the constitutional arrangements that would make it both adequate and safe.”71 Energy–properly deployed–was “[t]he key.”72 More particularly, “Energy in the executive . . . is a leading character in the definition of good government.” This quality, which he also described as “decision, activity, secrecy, and dispatch” and as “vigor and expedition,” was essential for national defense, a “steady administration of the laws,” protection of property against unlawful combinations, and “security of liberty against the enterprises and assaults of ambition, of faction and of anarchy.” He cited the repeated necessity of the Roman republic to resort to a dictator, “as well against the intrigues of ambitious individuals, who aspired to the tyranny, and the seditions of whole classes of the community, whose conduct threatened the existence of all government, as against the invasions of external enemies, who menaced the conquest and destruction of Rome.”73

Hamilton argued that the powers necessary to implement the general ends specified in the Constitution “ought to exist without limitation [b]ecause it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them.”74 3. The Historical Evolution of the Presidency The tradition of a strong and powerful American president commenced even before the Convention finalized Article II of the proposed Constitution in 1787. This image of the President was due to the universally acknowledged, irreproachable model of character and gravitas embodied by George Washington. As tellingly observed by one of the Founders, Pierce Butler, the President’s “powers are full great, and greater than I was disposed to make them. Nor . . . do I believe they would have been so great had not many of the members [of the Constitutional Convention] cast their eyes towards General Washington as President.”75 Over the course of his two four-year terms from 1789 to 1797, “[President] Washington . . . defined the presidency, grounded it on firm foundations, and made it central to the survival of the republic by the time he retired in 1797.”76 Although “[n]ot all the precedents he established would last, . . . . he made the office viable, an institution

70

Id. at 208 (citing The Federalist No. 23 (Alexander Hamilton)).

71

Id. at 204.

72

Id.

73

McDonald, supra note 9, at 204 (quoting The Federalist No. 70 (Alexander Hamilton)).

74

Id. at 207–08 (quoting The Federalist No. 23 (Alexander Hamilton)).

75

Id. at 209–10 n.1 (internal quotation marks omitted) (citing 3 The Records of the Federal Convention of 1787, at 302 (Max Farrand ed., rev. ed. 1937)).

76

Id. at 212.

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of great flexibility and energy that could exert its will while remaining under the ultimate control of the law.”77 According to a speech given by James Madison in 1789–a little more than three months after Washington had taken the first constitutionally-prescribed oath of office as President of the United States–Madison declared that the Constitution “vested the executive power in the president, with the exception that the Senate shares the appointment and treaty-making powers.”78 As Madison opined, “[i]f the Constitution had not required senatorial approval of appointments, the president would have the right by virtue of his executive power to make such appointment.”79 Thus, “[t]his was an endorsement of the view that the president has certain unspecified but real powers that he exercises by virtue of the vesting clause; the vesting clause was a positive grant, not an abstract generalization.”80 Thomas Jefferson–the first president elected from the nascent DemocraticRepublican Party, running in opposition to the Federalist Party tradition of George Washington and John Adams–“came almost as close to being indispensable during the transitional period 1800–1801 as Washington had been during the transition of 1787–1789.”81 Jefferson’s bold actions as President from 1801 to 1809, in conjunction with his Machiavellian political personality of “deviousness, slipperiness, and hypocrisy . . . combined . . . with persuasiveness, charm, and a firm sense of purpose,”82 expanded the exercised powers of the presidency. In addition to Jefferson “and his subordinates draft[ing] and steer[ing] through Congress more legislation than the Washington and Adams administrations combined,” he took many (often successful) “bold foreign [and national security] policy initiatives” over the course of his eight years in office.83 Some of the most prominent of these initiatives included establishing precedents of presidential power to preserve, protect, and enhance the national security of the nation; binding the federal government to spend $15 million on the Louisiana Purchase in 1803, when only $2 million had been appropriated; in the wake of the British firing on the USS Chesapeake in 1807, “order[ing] the spending of considerable sums for naval armament without waiting for Congress to reconvene and

77

McDonald, supra note 9, at 212.

78

Id. at 220 (internal quotation marks omitted) (citing 12 The Papers of James Madison 225–229 (Thomas A. Mason et al. eds., 1985)).

79

Id. (internal quotation marks omitted) (citing 12 The Papers of James Madison 225–229 (Thomas A. Mason et al. eds., 1985)).

80

Id. (emphasis added) (citing Louis Fisher, Constitutional Conflicts between Congress and the President 54–58 (3d ed. 1991)). See U.S. Const., art. II, § 1.

81

McDonald, supra note 9, at 245.

82

Id. at 247.

83

Id.

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appropriate the money”;84 and, in 1803, after the Louisiana Purchase was consummated, impounding funds which Congress had appropriated for fifteen gunboats to patrol the Mississippi River since, in light of the mammoth land purchase, the patrol no longer seemed necessary.85 Jefferson was the first president to rationalize the logic of vigorous executive leadership vis-à-vis Congress. “The president and his cabinet were in a better position to be well informed than congressmen” regarding the nation’s vital needs, and “the president alone, as Jefferson put it, could command a view of the whole ground as [sole] representative of the nation and not merely of a state or a congressional district.”86 Thus, according to President Jefferson’s persuasive gloss on the Constitution, “the concentration of authority in one disinterested servant of the whole gave him a decisiveness as well as a vision that the other branches lacked.”87 “In his inaugural address Jefferson asked Congress to guide and support his efforts to steer . . . the vessel [of State], but it was he who would do the steering.”88 The United States Senate, during Jefferson’s presidency, “allowed Jefferson a free hand in the conduct of foreign relations” and, one could say, national security policy, “and the latitude became institutionalized and was passed to his successors.”89 McDonald comments on the significance of a gloss on the President’s foreign

84

Id. at 256.

85

McDonald, supra note 9, at 256–57. One could add to this list Jefferson’s dispatch of a fourship squadron to protect American commerce in the Barbary Coast area of North Africa, done without congressional authorization. Id. at 264.

86

Id. at 259 (emphasis added) (internal quotation marks omitted).

87

Id.

88

McDonald, supra note 9, at 29 (emphasis added) (internal quotation marks omitted) (ellipsis omitted). Still, “[t]he one unmitigated failure of Jefferson’s tenure in office, the embargo policy, demonstrated among other things that a president can maintain a firm grip on the reins of power and yet lose control of the course of events.” Id. at 271. Moreover, as demonstrated by the failure to modify Jefferson’s embargo policy, instituted in 1807 as a means of avoiding war with Great Britain and France “by reducing the likelihood of confrontation on the high seas”, id., “[i]n times of perceived national emergency the judiciary and the Congress usually offer no barriers to, and often abet, the exercise of power by the president. As Jefferson put it in 1808, in times of emergency the universal resource is a dictator.” Id. at 273 (internal quotation marks omitted). Another feature evident from study of the [embargo] crisis is that, though Jefferson was right when he said that the president is the only person in government who can command a view of the whole ground, there are circumstances under which he can develop myopia. Specifically, the calamitous experience of the embargo showed that when the president has become accustomed to having his own way in running government he is apt to forget that there are limits to what government can do, no matter how skillfully it is managed. Id. (emphasis added).

89

McDonald, supra note 9, at 263.

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relations and national security powers established by an 1816 resolution of the United States Senate Committee on Foreign Relations: The President [according to the resolution adopted on February 15, 1816] . . . is the constitutional representative of the United States with regard to foreign nations. He manages such matters and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success. He is responsible not to the Senate but to the Constitution. The committee consider this responsibility the surest pledge for the faithful discharge of his duty. They think the interference of the Senate in the direction of foreign negotiations calculated to diminish that responsibility and thereby to impair the best security for the national safety. Dealing with foreign nations, the committee concluded, requires caution and unity of design and frequently depends on secrecy and dispatch. Hamilton himself could scarcely have expressed this Jeffersonian committee’s views more clearly.90

“Jefferson and his immediate successors displayed what became a pattern” over the ensuing two centuries of the American experience: “[w]ith few exceptions, vigorously active presidents,” in foreign and domestic affairs, “are likely to be followed by at least one or two chief executives who are considerably less so.”91 Presidential power, in general, has grown and “has been virtually uninterrupted” over the course of American history,92 at least in terms of what Americans expect of their presidents. Abraham Lincoln is widely recognized to have exercised presidential leadership to preserve and protect the Union–by vigorous executive actions, some of which were arguably unconstitutional–and to have led the country to a successful quelling of the Civil War from 1861 through the first part of 1865.93 While some nineteenth century Presidents succeeded in putting a gloss on presidential national security powers by their actions and pronouncements,94 it was not until the end of the 1890s

90

Id. (emphasis added) (internal quotation marks and footnote omitted) (citing Senate Committee on Foreign Relations, Resolution of Feb. 15, 1816, in 4 The Founders’ Constitution 88–89 (Philip B. Kurland & Ralph Lerner eds., 1987)).

91

Id. at 274.

92

Id. at 277.

93

See McDonald, supra note 9, at 298, 304, 306, 320–21, 346, 356, 388, 398–402, 432, 467–68, 477. See also infra Part IV.B for a discussion of Lincoln’s political strategy in waging the Civil War. See generally Michael Burkhimer, 100 Essential Lincoln Books (2003) (highlight and brief description of one hundred key books about Lincoln from a vast tally of approximately 14,000 books about the sixteenth president).

94

For example, shortly after Andrew Jackson’s second-term election as president in 1832, “South Carolina’s legislature voted to nullify federal tariff laws and prepared to secede from the Union if efforts were made to collect federal tariffs after February 1, 1833.” David C. Whitney & Robin Vaughn Whitney, the American Presidents 73 (9th ed. 2001). “In the face of this ultimatum . . . Jackson began preparing for civil war. In December 1832, he issued a Proclamation of Nullification, warning: ‘Disunion by armed force is treason.”’ Id. By way of

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that the presidency was “energized.”95 The presidents from McKinley through Hoover generally “were much more active than any of their nineteenth-century predecessors save Jefferson and Lincoln.”96 However, starting in 1933 with “Franklin Roosevelt’s New Deal, and for almost forty years after Roosevelt’s [first] inauguration[,] presidential power grew at a dazzling pace.”97 In the early 1970s, “in reaction to the presidencies of Lyndon Johnson and Richard Nixon”–in large measure focused on presidential prosecution of the Vietnam War–“Congress reasserted itself, passing a large number of enactments aimed at making the executive responsible to the legislative” branch.98 Notwithstanding the aforementioned enactments, Theodore Roosevelt’s “stewardship theory,” explained in his autobiography, has been “instrumental in drawing powers to the presidency” during the twentieth and twenty-first centuries to date.99 The Theodore Roosevelt stewardship theory has been “followed by most presidents since, and mirrored in most Americans’ increased expectations of the office.”100 According to Roosevelt: [T]he executive power was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by the Congress under its Constitutional powers. I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it. I acted for the public welfare, I acted for the common well-being of all our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition.101

Twentieth century presidential use and amplification of executive orders and secret orders, called National Security Decision Directives, aggrandized the role of the

another example, President James K. Polk vigorously used his powers and persuasion to annex territory in the southwest and northwest to the United States. Id. at 97. Activism by President Rutherford B. Hayes in 1877 (suppressing a railroad labor strike by dispatching army troops and sending arms to state militias “on the informal request of a few governors and without notification as to whether the legislatures could be convened”), McDonald, supra note 9, at 295, and by President Grover Cleveland in 1893 (sending federal troops to Chicago, “over the vehement opposition of [the Illinois governor] . . . to crush the Pullman strike,” id., reinforced the national security role of the “president as conservator of the [domestic] peace, as if he were a medieval king,” id. 95

McDonald, supra note 9, at 277.

96

Id.

97

Id.

98

Id.

99

McDonald, supra note 9, at 294.

100

Id.

101

Id. (quoting Edward Corwin, The President: Office and Powers, 1789–1957, at 153 (1957)) (internal quotation marks and ellipsis omitted).

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President as national security sentinel.102 “The two main aspects of the stewardship presidency, direct action and lawmaking [by executive orders and national security directives], have been most effective at aggrandizing the powers of the office when the nation has been deemed to be in a state of emergency.”103 Indeed, “[b]etween [the time of ] the Civil War and the Korean conflict, Congress and the courts proved willing during wartime to cede–and presidents proved eager to accept – powers virtually amounting to a suspension of the Constitution.”104 Moreover, Presidents, starting with Franklin Roosevelt, have declared many “nonwar emergencies” and “sometimes have neglected to declare them ended.”105 There is a traditional dichotomy in constitutional analysis between domestic policy, on the one hand, with Congress being viewed as the predominant power to determine the substance of American domestic federal law,106 and foreign policy, on the other hand (conventionally conceived as dealings between the United States and other sovereign nations).107 Yet, regarding the struggle for control of American foreign policy, “the verdict of history is . . . that the power to determine the substantive content of American foreign policy is a divided power [between Congress and the President], with the lion’s share falling usually, though by no means always, to the President.”108 The problem is that after the September 11, 2001 attacks on domestic targets in the United States (by foreign national terrorist hijackers apparently unaffiliated with any sovereign nation state, but instead affiliated with a non-governmental 102

Id. at 296–97 (“[Executive orders] have been numbered consecutively since 1907, and late in 1990 Executive Order 12,735 was issued; but there are also fractions, so the total might be as many as 50,000. In addition, there are secret orders called National Security Decision Directives, about three quarters of which are not made public and are not therefore subject to review by the press, Congress, the courts, or the public.”).

103

McDonald, supra note 9, at 297.

104

Id. (emphasis added). But see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 591–92 (1952) (invalidating President Truman’s attempt to seize domestic American steel mills in order to assure a steady supply of steel for the Korean War).

105

McDonald, supra note 9, at 297. “Franklin Roosevelt declared thirty-nine emergencies during his first six years in office, and in 1971 Congress was surprised to learn that the national emergency proclaimed during the banking crisis of March, 1933, was still nominally in effect.” Id. In addition, Congress learned in 1971 that “[s]o too were emergencies declared by Truman in 1950 and by Nixon in 1970 and 1971.” Id.

106

See generally, The Oxford Companion to American Law 142–44 (Kermit L. Hall et al. eds., 2002) (discussing the vital role under the American Constitution of Congress and domestic policy).

107

McDonald, supra note 9, at 384 (“[T]he Constitution ‘is an invitation to struggle for the privilege of directing American foreign policy.”’ (quoting Corwin, supra note 101, at 171).

108

Id. at 384–85 (citing Corwin, supra note 101, at 171) (second and third emphasis added) (internal quotation marks omitted). See also Louis Henkin, Foreign Affairs and the Constitution (1972), for a classic treatment of the interactions between Congress and the Presidency in the realm of foreign policy.

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terrorist group known as al Qaeda, which might have been secretly partially funded by traditional sovereign states), the traditional dichotomy between domestic policy and foreign policy appears to have become outmoded–at least with regard to basic security of the American homeland.109 After 9/11, in theory, every city and town in America is vulnerable to catastrophic attack by foreign national terrorists (whether sponsored by a sovereign state or not) who manage to get into the United States, “homegrown” terrorists who are in the United States as citizens or legal aliens, and, as always, traditional state-initiated attacks by nations like North Korea or Iran.110 In this radically-altered policy landscape, Corwin’s dictum regarding the traditional lion’s share of power going to the President in foreign policy disputes would seem to strongly support presidential primacy over what has become known in the post9/11 era as “the war on terror.” The emergent nature of the so-called war on terror is the focus of the next Section. B. New Geopolitical Realities What a difference a day can make; moreover, what a difference the first decade of the twenty-first century can make. Given the unprecedented dangers to U.S. national security after 9/11, and the subsequent al Qaeda inspired terrorist attacks around the globe from 2001 to 2006,111 the President is justified in articulating, planning, and managing an array of law and policy measures to protect the American homeland, including surveilling and interdicting those who seek to harm American national security, broadly defined. These post-9/11 dangers to American national security may be usefully described as new geopolitical realities. What is the full sweep of these new geopolitical realities facing America? The discussion that follows describes– from the perspective of the national security of the United States–a detailed survey of terrorist and neoterrorist events and developments. 1. 2001 Prior to September 11, 2001, the nation, as reflected in Congress, was preoccupied with the continuing political fallout from the historic election of 2000. “The 107th Congress opened [on January 3rd] with an evenly divided Senate, a House that Republicans controlled by just six votes, and a president put in office by the Supreme Court after an election that was too close to call.”112 But, “[b]y the time the session ended on Dec. 20, the Senate had shifted to a Democratic majority,

109

See Robert F. Blomquist, Congressional Oversight of Counterterrorism and its Reform, 11 Roger Williams U. L. Rev. 1, 2–4 (2005), for a discussion of how the 9/11 attacks rendered obsolete traditional notions of domestic and foreign security.

110

See infra Part II.B.

111

See infra Parts II.B.1 through II.B.6, inclusive.

112

A Tumultuous Year in Congress, 58 Cong. Q. Almanac 1–3, 1–3 (2002).

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and Congress’ agenda had turned upside down by the . . . terrorist attacks that stunned the nation and left more than 3,000 people dead in New York and Washington.”113 In the immediate aftermath of the September 11th terrorist attacks, President Bush took various actions. He declared a national emergency, and authorized the military to call up 50,000 reservists to active duty, labeling the attacks “an act of war.” On September 20th, in an address to a joint session of Congress, Bush stated that Afghanistan’s Taliban government had to turn over terrorist leaders or share their fate. He also announced the creation of a Homeland Security office. On October 7th, Bush announced that U.S. air strikes had begun in Afghanistan. He vowed: “We will not waver, we will not tire, we will not falter and we will not fail.” On October 19th, U.S. ground troops were deployed to Afghanistan after two weeks of bombing and air strikes.114 On October 15th, an aide to Senate Majority Leader Tom Daschle opened an envelope containing two grams of anthrax and a letter with the following message: “You can not stop us. We have this anthrax. You die now. Are you afraid? Death to America. Death to Israel. Allah is great.”115 NBC news anchor Tom Brokaw received a similar anthrax-spiked letter around the same time. Two postal workers died from anthrax exposure in processing the tainted letter sent to Daschle.116 Senate and House office buildings were closed for several days due to the anthrax threat. Throughout the fall of 2001, “[d]ozens of committee hearings were canceled for lack of meeting space. An array of legislation, most prominently conference agreements on fiscal 2002 appropriations bills, was stalled because the necessary paperwork could not be retrieved from quarantined offices.”117 In November, another anthrax-filled letter addressed to Senate Judiciary Committee Chairman Patrick J. Leahy (which the FBI luckily had quarantined) contained enough deadly anthrax bacteria “to kill 100,000 people.”118 In all, five Americans died due to exposure to anthrax.119 During 2001, Congress responded to the post-9/11 leadership of President Bush in several ways. It passed a $40 billion emergency supplemental spending bill “to begin the recovery and launch a war on terrorism.”120 Congress also enacted a

113

Id.

114

Id. at 1–10.

115

Anthrax Attacks Disrupt Legislating, 58 Cong. Q. Almanac 1–12, 1–12 (2002).

116

Id.

117

Id.

118

Id. at 1–13.

119

A Tumultuous Year in Congress, supra note 112, at 1–13.

120

Id. at 1–9 (citing Pub. L. No. 107–38).

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use of force resolution which authorized the President to “use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on [September] 11, 2001, or harbored such organizations or persons.”121 Congress approved $15 billion in aid to American airlines to help them “recover from the two days when all airports were closed, as well as from [a] subsequent slump in air travel.”122 Congress passed the PATRIOT Act, which allowed the U.S. Attorney General to obtain nationwide search warrants, “roving wiretaps” of particular individuals under surveillance, and “secret searches that could be conducted before suspects were served with search warrants.”123 Finally, Congress enacted an aviation security measure that created a federalized airport security work force.124 2. 2002 In its second session, Congress continued to follow President Bush’s lead in passing legislation that responded, in one way or another, to the continuing rise of geopolitical terrorist risks confronting the United States. Key enactments of 2002 entailed creating a new Department of Homeland Security (“consolidating all or parts of 22 federal agencies in the largest government reorganization since World War II”);125 forming an independent commission to investigate governmental intelligence and other mistakes preceding the terrorist attacks of September 11, 2001;126 authorizing the President to use military force against Iraq;127 and increasing the defense budget by 11 percent, which was the largest single year increase in twenty years.128 Other key enactments included passing a bill to implement two recently ratified anti-terrorist treaties to crack down on terrorists and their financial backers;129 appropriating funds for federal, state, and local governments to prepare 121

Id. at 1–10 (internal quotation marks omitted) (citing Pub. L. No. 107–40). Interestingly: The White House initially requested a sweeping resolution endorsing not only retaliation for the [September] 11 attacks, but all necessary and appropriate force to deter and pre-empt any future acts of terrorism or aggression against the United States. That went too far for many lawmakers, particularly Democrats, who compared it with the 1964 Gulf of Tonkin resolution . . ., cited as congressional authorization for waging the Vietnam war.

Id. (internal quotation marks omitted). 122

A Tumultuous Year in Congress, supra note 112, at 1–10 (citing Pub. L. No. 107–42).

123

Id. (citing Pub. L. No. 107–56).

124

Id. (citing Pub. L. No. 107–71).

125

Politics, Security Shape Agenda, 59 Cong. Q. Almanac 1–3, 1–4 (2003); see Pub. L. No. 107–296.

126

Politics, Security Shape Agenda, supra note 125, at 1–4; see Pub. L. No. 107–306.

127

Politics, Security Shape Agenda, supra note 125, at 1–4; see Pub. L. No. 107–243.

128

Politics, Security Shape Agenda, supra note 125, at 1–4; see Pub. L. No. 107–314.

129

State Bill Highlights UN Funds, 59 Cong. Q. Almanac 9–3, 9–8 (2003); see Pub. L. No. 107–197.

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for and respond to bioterrorism attacks and other public health emergencies;130 and passing an interstate oil and natural gas pipeline security measure to ameliorate the vulnerability of the nation’s pipeline infrastructure.131 In the process of organizing national counterterrorism measures during 2002, the Bush Administration identified four key functional areas of concern: bioterrorism, airport and border security, emergency response, and intelligence.132 International terrorist developments during 2002 included attacks by Hamas and the al-Aksa Martyr Brigade on Israeli civilians, with retaliation by Israeli troops against Palestinian cities and refugee camps.133 In addition, North Korea announced that it had been developing a nuclear bomb in violation of a 1994 international agreement, and that during the 1970s and 1980s it had kidnapped about a dozen Japanese citizens for training North Korean spies.134 3. 2003 During March of 2003, President Bush “launched the first preemptive war in United States history”; identifying the dangers posed by Saddam Hussein as a serious potential security threat against the region and the United States which, in the context of this “nonconventional war against terrorism,” required “anticipatory action to defend ourselves.”135 The Bush Administration assembled a “coalition of the willing” to press the war against Iraq, with the United States deploying 225,000 troops joined by only three other nations: Britain sending 45,000, Australia sending 2000, and Poland sending 200 troops.136 While the collapse of Hussein’s regime took less than six weeks to effect, “[p]ost-war reconstruction went far less smoothly.”137 Guerrilla-type resistance soon ensued during 2003 in occupied Iraq: “Among the most destructive acts of organized violence were the sabotage of several oil pipelines, the destruction of U.N. headquarters in Baghdad by a car bomb, which killed top U.N. envoy Sérgio Vieira de Mello, and the assassination of one of Iraq’s most important Shi’ite leaders. . . .”138 130

New Law Targets Bioterrorism, 59 Cong. Q. Almanac 10–10, 10–10 (2003); see Pub. L. No. 107-188.

131

Congress Clears Pipeline Safety Bill, 59 Cong. Q. Almanac 8–7, 8–7 (2003); see Pub. L. No. 107-355.

132

The News of 2002: Nation, in Time Almanac 2003, at 33, 33 (2002).

133

Id. at 35.

134

Id.

135

The News of 2003: Nation, in Time Almanac 2004, at 33, 33 (2003).

136

Id.

137

Id.

138

Id.

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Months of searching Iraq for weapons of mass destruction yielded inconclusive evidence. “With his most compelling argument for war still unsubstantiated, Bush emphasized other rationales: Hussein’s brutal repression and human rights record, and Iraq as the central front in the war against terrorism.”139 President Bush articulated a “broad, all-purpose definition of terrorism[,]” blending any distinction between the September 11th attacks, al-Qaeda, and Iraq.140 For example, in his May 1st speech declaring an end to the fighting in Iraq, Bush “claimed that the battle of Iraq is one victory in a war on terror that began on Sept. 11, 2001. . . . We’ve removed an ally of al-Qaeda.”141 As explained by an authoritative news analyst, “At its best the doctrine of preemption permits President Bush’s words, the wisdom and the will [by the president of the United States and willing allies] to stop great threats before they arrive,”142 but, “[a]t its worst, the doctrine becomes, in U.N. Secretary General Kofi Annan’s words, the unilateral and lawless use of force.”143 During 2003, there were also national security threats to America in areas of the world outside of Iraq. In the Middle East, terrorist attacks by terrorist organizations continued unabated in and around Israel, and occupied Afghanistan suffered renewed attacks by Taliban and al-Qaeda forces.144 “North Korea’s Kim Jong-il aggressively taunted the U.S. with threats of nuclear proliferation, culminating in an April announcement that the country already possessed nuclear weapons.”145 Iran’s “seemingly illicit nuclear ambitions surfaced in June when the International Atomic Energy Agency (IAEA) criticized the country’s concealment of nuclear activities, and later discovered traces of highly enriched uranium at two sites.”146 Congress followed President Bush’s lead in 2003, appropriating “more than $150 billion, distinct from the regular fiscal 2003 and 2004 budgets, to pay for the military campaigns in Afghanistan and Iraq and subsequent reconstruction efforts.”147 Moreover, after the Bush Administration dropped objections to sanctions against Syria “for allowing terrorists to cross its borders into Iraq[,] for continuing its military occupation of neighboring Lebanon and for allegedly possessing weapons of mass destruction,” Congress passed legislation which was signed 139

The News of 2003: Nation, in Time Almanac 2004, supra note 135, at 34 (internal quotation marks omitted).

140

Id.

141

Id. (internal quotation marks omitted).

142

Id. (internal quotation marks omitted).

143

The News of 2003: Nation, in Time Almanac 2004, supra note 135, at 34 (internal quotation marks omitted).

144

Id.

145

Id.

146

Id.

147

Partisanship Defines the Session, 60 Cong. Q. Almanac 1–3, 1–4 (2004).

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by the President authorizing the President to choose various economic, diplomatic, and trade sanctions against Syria.148 During 2003, Congress also passed an intelligence bill that, among other things, “authorized money to promote improved information sharing of raw intelligence among agencies and called for a single, government-wide terrorist watch list under the auspices of the newly created Terrorist Screening Center.”149 4. 2004 During 2004, terrorist actions in Iraq mushroomed. “By April, a number of separate uprisings had spread throughout the Sunni triangle and in the Shi’itedominated south. Suicide bombings, kidnappings, and beheadings targeted civilians, Iraqi security forces, foreign workers, and coalition soldiers. In September alone there were 2,300 attacks by insurgents.”150 Controversy arose over so-called “purposeless sadism” at Abu Ghraib prison in Iraq, which was run by the American military for Iraqi and Afghan prisoners.151 “The controversial decision to classify detainees in the war in Afghanistan as enemy combatants, and not as prisoners of war subject to the Geneva Conventions meant the U.S. could employ more coercive interrogation techniques, indefinitely detain prisoners, and deny them the rights to due process.”152 Indeed, “White House [Counsel] Alberto Gonzales maintained that terrorism was a new kind of war that rendered portions of the Geneva Conventions quaint.”153 But in Rasul v. Bush, the Supreme Court rejected the Bush Administration’s claim that the executive branch has unreviewable authority in time of war, ruling that “detainees” at the U.S. naval base at Guantánamo Bay, Cuba “were legally entitled to challenge their imprisonment.”154 In July, the Senate Intelligence Committee released a unanimous Report On Pre-War Intelligence On Iraq, which “strongly criticized the CIA and other intelligence agencies, concluding that most of the major key judgments on Iraq’s weapons of mass destruction were either overstated, or were not supported by the underlying intelligence report.”155 Also in July, the independent 9/11 Commission 148

Congress Imposes Syria Sanctions, 60 Cong. Q. Almanac 10–7, 10–7 (2004); see Pub. L. No. 108–175.

149

Intelligence Bill Enhances FBI Powers, 59 Cong. Q. Almanac 10–9, 10–9 (2003); see Pub. L. No. 108–177.

150

Time Almanac 2005, at 32 (2004).

151

Id. (internal quotation marks omitted).

152

Id.

153

Id. (internal quotation marks omitted).

154

Time Almanac 2005, supra note 150, at 32 (citing Rasul v. Bush, 542 U.S. 466 (2004)).

155

Id. (internal quotation marks omitted).

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completed its 19-month investigation, and released a report calling for major changes in America’s intelligence system (including the creation of a cabinet-level intelligence director).156 In response to some of the recommendations in the 9/11 Commission Report, Congress passed legislation to overhaul the nation’s intelligence system and make it more centralized.157 Horrific acts of terrorism occurred during 2004. On March 11th, “202 people were killed and 1,400 injured in bombings at Madrid’s railway station,” with evidence “implicating al-Qaeda”; this event impacted Spain’s presidential election a few days later and ultimately led the new Spanish president to withdraw Spain’s soldiers from Iraq.158 In Russia, Muslim terrorists blew up two planes, killing all ninety passengers on board.159 Terrorists killed nine passengers at a Moscow subway, followed in September by the seizure of a “school in Beslan, near Chechnya, [involving the holding of ] about 1,100 young schoolchildren, teachers, and parents,” leading to hundreds of deaths and injuries.160 This instigated Russia’s prime minister, Vladimir Putin, to announce “that he would radically restructure the [Russian] government to fight terrorism more effectively, raising alarms that his consolidation of power would roll back Russian democracy.”161 During 2004, Saudi Arabia suffered continuing terrorist attacks attributable to al Qaeda, and witnessed rising Islamic militancy against the Kingdom.162 Attacks on American-led forces in Afghanistan intensified during 2004, “as the Taliban and al-Qaeda continued to regroup.”163 In Sudan, the Muslim government “permitted pro-government Arab militias called Janjaweed to carry out massacres against black villagers and rebels” in the Darfur region; “[b]y [October] 2004, the Janjaweed, surreptitiously armed by [the] Khartoum [government], had massacred more than 70,000 Darfuris and displaced another 1.5 million.”164 The IsraeliPalestinian conflict continued unabated in 2004, with the only glimmer of hope being Israeli Prime Minister Sharon’s proposal to unilaterally withdraw Israeli

156

Id. at 40. See also National Commission on Terrorist Attacks on the United States, The / Commission Report (2004) [hereinafter The 9/11 Commission Report].

157

Campaigning Trumps Legislating, 61 Cong. Q. Almanac 1–3, 1–9 (2005); see Pub. L. No. 108–458.

158

Time Almanac 2005, supra note 150, at 33.

159

Id.

160

Id.

161

Id.

162

Time Almanac 2005, supra note 150, at 33.

163

Id.

164

Id. at 34.

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forces from the Gaza Strip.165 Furthermore, in 2004, “a global nuclear black market was uncovered” when it was revealed that a Pakistan official had “sold nuclear secrets to North Korea, Iran, and Libya in the 1980s and 1990s.”166 5. 2005 During 2005, the new U.S. Department of Homeland Security was found wanting in its dismal efforts to deal with warning and disaster response to Hurricane Katrina–which killed more than 1000 people in the New Orleans and Gulf coast area.167 Terrorist insurgency incidents in Iraq continued during 2005, putting a dark cloud over “the country’s first free elections in 50 years.”168 “On July 7, 2005, London became the victim of a terrorist bombing, Britain’s worst attack since World War II.”169 “Four bombs exploded in three subway stations and on one double-decker bus during the morning rush hour, killing 52 and wounding more than 700.”170 A group styled as the Secret Organization of al Qaeda in Europe claimed bragging rights for the bombings. Two weeks later, “on July 21, terrorists attempted another attack on the transit system, but the bombs failed to explode.”171 In February 2005, Lebanon’s former prime minister was killed in a Beirut car bombing with Syrian assassins being suspected.172 “In June 2005, Iran elected a new president” who is “a hard-liner and conservative” and “who staunchly supports the continuation of Iran’s nuclear pursuits.”173 During 2005, Congress renewed the federal role in providing backstop insurance coverage for terror claims. This legislation, supported by President Bush, modified and extended federal terrorism guarantees to help insurers pay for claims stemming from a large-scale terrorist attack on the United States.174 6. 2006 Early in 2006, terrorist insurgency attacks intensified in Iraq.175 The U.S. Justice Department in January “released a detailed legal defense of a controversial National 165

Id.

166

Time Almanac 2005, supra note 150, at 34.

167

The News of 2005: Nation, in Time Almanac 2006, at 32, 32 (2005).

168

Id.

169

Id. at 34.

170

Id.

171

The News of 2005: Nation, in Time Almanac 2006, supra note 167, at 34.

172

Id. at 34–35.

173

Id. at 35.

174

Jacob Freedman & Michael R. Crittenden, Terrorism Insurance Extended, CQ Weekly, Dec. 26, 2005, at 3400 (discussing the extension of the 2002 Terrorism Risk Insurance Act).

175

Iraq; Insurgent Attacks Intensify; Other Developments, 66 Facts on File 21D1 ( Jan. 12, 2006).

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Security Agency (NSA) program to conduct warrantless surveillance of terrorism suspects inside the U.S.,” revealing that “President George W. Bush had authorized the program in order to accelerate intelligence-gathering efforts in the wake of September 11, 2001.”176 The NSA warrantless surveillance program was criticized by some legal commentators as a violation of “constitutional rights and limits on surveillance set by the 1978 Foreign Intelligence Surveillance Act (FISA).”177 In January, Osama bin Laden, in an internationally broadcast message, “warned that the network would carry out further terrorist attacks upon the U.S. in the near future.”178 The terrorist group Hamas gained a majority in the Palestinian parliamentary elections on January 25th.179 Violent protest erupted throughout the Muslim world over published cartoons by a Danish artist that caricatured in a derogatory fashion the Prophet Muhammad.180 Iran announced the recommencement of uranium enrichment in defiance of international opinion.181 The sectarian violence and terrorist attacks in Iraq grew uglier. 182 Three deadly Islamic terrorist bombings in an Egyptian Red Sea resort town killed eighteen people.183 European countries were accused in June of aiding American CIA renditions of suspected terrorists.184 One hundred and eighty-six people were killed and hundreds injured in a July 11th coordinated Islamic terrorist attack on the Mumbai train system in India.185 7. Global Jihad The aforementioned summary of selective events illustrates what has been described as “Global Jihad,”186 a barrage of over a hundred significant attacks instigated and 176

Bush Administration Defends Domestic Surveillance Program; Critics Question Legality. 66 Facts on File 25A1 ( Jan. 19, 2006).

177

Id.

178

Terrorism; Bin Laden Threatens More Attacks, 66 Facts on File 30A2 ( Jan. 19, 2006).

179

See Hamas Gains Majority in Palestinian Parliamentary Elections; Surprise Win Casts Doubt on Peace Process, 66 Facts on File 41A1 ( Jan. 26, 2006).

180

See Protests Erupt Across Muslim World Over Danish Cartoons; European Papers Print Prophet Caricatures, 66 Facts on File 61A1 (Feb. 2, 2006).

181

See Iran; Nuclear Program Restart Announced; Other Developments, 66 Facts on File 116G3– 117G3 (Feb. 16, 2006).

182

See Attack on Iraq Shiite Shrine Sparks Mass Protests, Revenge Killings of Sunnis; Sectarian Clashes Raise Fear of Civil War, 66 Facts on File 121A1 (Feb. 23, 2006); Hundreds Die in Iraq Sectarian Attacks Linked to Shrine Bombing; Casualty Tolls Vary Widely, 66 Facts on File 137A1 (Mar. 2, 2006).

183

See Egypt; Red Sea Resort Struck by Deadly Blasts, 66 Facts on File 333D2 (Apr. 27, 2006).

184

See Europe; Countries Accused of Aiding CIA Transfers, 66 Facts on File 461A2 ( June 8, 2006).

185

Mumbai Bombings: 400 Detained, CNN.com, July 13, 2006, http://www.cnn.com/2006/ WORLD/asiapcf/07/13/mumbai.blasts/index.html?section=cnn_ world.

186

See supra notes 112–180 and accompanying text. A December 2006 report, The Iraq Study Group Report (2006), is an important recent addition to the Global Jihad literature.

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organized by al Qaeda and other Islamic terrorists in more than a dozen countries.187 Several synthesizing points about global jihad are in order; these can help put into perspective the previous summary of geopolitical events since the 9/11 attacks and the uncertainties facing the President in attempting to preserve and protect American national security. First, while national security threats posed by nation states like North Korea, Iran, and Venezuela, by way of illustration, are important matters of concern, these threats by rogue states tend, in large measure, to fit into the traditional model of foreign policy concerns exemplified by the Cold War between the United States and the former Soviet Union. This differs from Islamic terrorists who “cloak their acts in the mantle of jihad–holy struggle–[whose] precise goals and the nature of their organization or organizations are murky.”188 As explained by an expert in asymmetric threat studies, “Unlike the Cold War, here you don’t know who the enemy is. . . . The enemy can be entire societies or sympathizers; and weapons can be low-tech and inexpensive.”189 Second, since (and before) September 11, 2001, there has been “a steady stream of attacks and attempted attacks–mostly suicide bombings–” on Americans and their allies.190 “The attacks reflect the unshaken determination of Muslim terrorists around the world to kill Americans and their allies–with the stated aim of establishing theocracies in the name of Islam in Muslim lands.”191 Third, as declared in October of 2005 by al Qaeda’s top strategist to the then top jihadist leader in Iraq, Abu Musab al-Zarqawi: “The victory of Islam will never take place until a Muslim state is established . . . in the heart of the Islamic world, specifically in the Levant, Egypt and the neighboring states of the Peninsula and Iraq. . . .”192 With his eye on that prize, al-Zarqawi added that regional conflicts in Chechnya, Afghanistan and elsewhere were just the groundwork for the full-scale confrontation in the Arab heartland. Fourth, “[i]n addition to the hundreds of assaults on Americans and civilians in war-torn Iraq and Afghanistan as well as in Israel and the Palestinian territories, more than 100 major post-9/11 terrorist incidents have occurred in Pakistan, 187

Peter Katel, Global Jihad: Does a Terrorist Movement Threaten the West, 15 CQ Researcher 857, 857 (2005) (counting 107 “jihadist” attacks between September 11, 2001 and the subway and bus bombings in London on July 7, 2005).

188

Id. at 859.

189

Id.

190

Id. (internal quotation marks omitted).

191

Katel, supra note 187, at 859.

192

Id. For the full text of the reported letter, see Office of the Director of National Intelligence, Letter in English, (Oct. 11, 2005), http://www.dni.gov/press_releases/letter_in_english.pdf.

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Turkey, Indonesia, Spain, Great Britain, Morocco, Kenya, Chechnya, Russia, and India.”193 Fifth, “[t]errorism experts disagree on whether the world’s far-flung jihadists belong to a single global organization, such as al Qaeda, or represent independent or loosely connected cells. Experts also debate the level of support for jihadism among the world’s 1.3 billion Muslims.”194 Sixth, “Western nations have had limited success in eliminating terrorists before they kill,” and “specialists say the jihadist world so far has been largely impenetrable to Western security agencies.”195 Seventh, the global jihadists are numerous and protean in nature. For instance, Al-Zawahiri’s organization in Iraq is only one of a host of regional jihadists groups believed to be allied to al Qaeda, at least ideologically. Among them: Abu Sayaf, Philippines; Jemaah Islamiyah, Indonesia, Malaysia; the Salafist Group for Preaching and Combat, Algeria; Salifiya Jihadiya, Morocco; the Islami International Battalion and other extremist separatists fighting the Russian government in Chechnya; Hizb-I Islamic Gulbuddin, Afghanistan; Lashkar-e-Tayibba and Lashkar-e-Jhangvi, Pakistan; and Ansar Al-Islam, Iraq. In many cases, the level of commitment to global jihad, as opposed to regional or national conflicts, is unclear.196

Eighth, most experts believe “that the core al Qaeda organization, with a communications network of some sort linking its leaders with cells in Europe and elsewhere . . . is clearly still vibrant and dangerous.”197 Ninth, one of the more recent national security concerns stemming from the rise in global jihad is the port security of the United States. The controversy in early 2006 “over an Arab company’s plan to operate terminals at six U.S. seaports put port security at the top of [Congress’] agenda.”198 Indeed, “some security experts say the firestorm over the ill-fated Dubai Ports World deal masks a bigger problem: the failure of the United States to invest enough on security–including infrastructure upgrades, advanced radiation-detection equipment and manpower” to prevent a worst-case scenario involving terrorists smuggling radioactive bombs “into one of the more than 360 U.S. seaports.”199 As of 2005, “[o]nly 5 percent of

193

Katel, supra note 187, at 859. See also supra note 185 and accompanying text.

194

Katel, supra note 187, at 861.

195

Id. at 862.

196

Id. at 863.

197

Id. (internal quotation marks omitted).

198

Pamela M. Prah, Port Security: Are New Anti-Terrorism Measures Adequate?, 16 CQ Researcher 339, 339 (2006).

199

Id.

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the 11.3 million shipping containers arriving at U.S. seaports . . . were examined” by government inspectors.200 Tenth, Stephen Flynn–a national security expert currently serving as a senior fellow on the Council on Foreign Relations–has outlined four overarching vulnerabilities of the United States to terrorism.201 The initial national security vulnerability relates to the basic infrastructure of the nation: From water and food supplies; refineries, energy grids, and pipelines; bridges, tunnels, trains, trucks, and cargo containers; to the cyber backbone that underpins the information age in which we live, the measures we have been cobbling together are hardly fit to deter amateur thieves, vandals, and hackers, never mind determined terrorists. Worse still, small improvements are often oversold as giant steps forward, lowering the guard of average citizens as they carry on their daily routine with an unwarranted sense of confidence.202 A second key vulnerability of the United States, as highlighted by Flynn, is that “from nearly all points on the compass, there is rising antiAmericanism . . . . [which is both an] inevitable byproduct of the United States’ unique standing as the sole remaining superpower . . . . [and governmental] actions and policies [which] display periodic arrogance and indifference” to the plight of less fortunate peoples of the world.203 A third American national security vulnerability is the “disturbing fact of twenty-first-century life [that] groups with no governmental ties can acquire the most lethal tools of warfare” involving a spectrum of lethal weapons.204 At one end of the spectrum, weapons like the AK-47 are so plentiful that they can be had for the price of a chicken in Uganda, the price of a goat in Kenya, and the price of a bag of maize in Mozambique or Angola. At the other end, there is enough separated plutonium and highly enriched uranium in the world to make thousands of nuclear weapons. Weapons-useable nuclear materials exist in over 130 research

200

Id. Retired Coast Guard Commander Stephen Flynn provided the following “chilling, hypothetical scenario to congressional committees in calling for tighter port security.” Id. at 339. A truck driver in Indonesia picks up a shipment of designer sneakers made for a big U.S. firm. But before delivering the load to a port in Jakarta, he stops to let al Qaeda members stash a radioactive bomb inside the sealed container. The “dirty bomb” is encased in lead to avoid radiation-detection equipment used at many ports. U.S. Customs officers based in Jakarta, however, neither open the container nor screen it for radioactivity because the Indonesian shipper and the big-name U.S. sneaker firm are on the government’s list of “trusted” companies. When the container arrives at its destination–a warehouse in Chicago–terrorists detonate the bomb. The radioactive blast causes several deaths, devastating environmental damage and potentially long-term health risks. Id.

201

See Stephen Flynn, America the Vulnerable: How our Government is Failing to Protect us From Terrorism 2–5 (2004).

202

Id. at 2.

203

Id. at 3.

204

Id. at 4.

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laboratories operating in more than forty countries around the world, ranging from Ukraine to Ghana.205 A fourth American national security weakness is what Flynn describes as the irony between “our overwhelming military capabilities” and the irresistible opportunity “to assault nonmilitary elements of U.S. power that arise from our growing dependence on [under-secured] sophisticated networks to move people, food, cargo, energy, money, and information at higher volumes and greater velocities.”206 This has created the situation wherein “the systems that underpin our prosperity are soft targets” for terrorists, offering the opportunity for these adversaries to “become creative Davids to our Goliath” through asymmetrical warfare.207

C. Technological Security Innovations America has the technological know-how and the financial resources to create a maximum-security state to protect homeland security. The President of the United States could muster these resources, establish national priorities for implementing security measures, and explain to the nation the logic and rationale of his actions. One expert suggested, “[w]e should deal with our homeland security task as though we were tackling a thousand-piece jigsaw puzzle.”208 He explains the synoptic start of such a technological national security effort: When you first dump out the pieces, it is easy to be intimidated. But you start by turning all the pieces face up, sorting them out by common features, and then beginning the slow process of piecing them together. In time, it becomes easier to 205

Flynn, supra note 201, at 4.

206

Id. at 5.

207

Id. One commentator described asymmetrical warfare as a conflict between two foes of vastly different capabilities. After the Red Army dissolved in the 1990s, the U.S. military knew it was basically unbeatable, especially in a straight-up fight. But that meant that much smaller opponents would seek to negate its strengths. . . . On 9/11, America got a real dose of what asymmetrical warfare is going to be in the twenty-first century. Thomas P.M. Barnett, Blueprint for Action: A Future Worth Creating, at xv (2005). See also John A. Nagl, Learning to Eat Soup With a Knife (2005) (providing an excellent discussion of counterinsurgency lessons from the British involvement in Malaya in the 1940s and 1950s, and the American experience in Vietnam from the 1950s through the early 1970s); Richard H. Shultz, Jr. & Andrea J. Dew, Insurgents, Terrorists and Militias (2006). The latter book was described as “a wise and cogent briefing book about who our enemies are and how to anticipate their field tactics.” Robert D. Kaplan, The Tribal Way of War, Wall St. J., July 19, 2006, at D14. As explained by Kaplan in his review of the book: While the U.S. spends billions of dollars on sophisticated defense systems, the dime-a-dozen kidnapper and suicide bomber have emerged as the most strategic weapons of war. While we tie ourselves in legal knots over war’s acceptable parameters, international law has increasingly less bearing on those whom we fight. And while our commanders declare “force protection” as their highest priority, enemy commanders declare the need for more martyrs. It seems that the more advanced we become, the more at a disadvantage we are in the 21st-century battlefield.

Id. (emphasis added). 208

Flynn, supra note 201, at 111–12.

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decipher patterns; the picture takes form, and the process of assembling gets easier.209

The President, facing up to the grisly geopolitical risks facing the United States, must then lead a dispassionate cost/benefit analysis. Continuing with the jigsaw puzzle model: Turning over the pieces is where we need to start. Priority should be given to those areas in which an attack could cause great loss of life or profound societal disruption. If we have credible intelligence that terrorists appear intent on hitting specific targets, we should certainly mobilize protective measures for those targets right away. But we should recognize that our intelligence is likely to be spotty for some time to come. This means operating on the assumption that we will not get advance warning and that we can not have a specific threat-based approach to deciding what needs to be protected. Instead, we need to invest energy and resources to better protect assets that make for likely targets. At the same time, we should also have contingencies in place to manage the aftermath, should our defensive efforts still fail to deter an attack.210

The President should set specific homeland security priorities and regulatory goals to be carried out by the Department of Homeland Security and other relevant federal agencies. Among the more promising and efficient national measures to be planned, funded, and launched by the President and his advisers are the following: shipping container cargo regulations providing for “green lane” and “red lane” seaport inspection policies (giving “smart and secure” cargo containers preferential treatment at United States ports);211 food safety mandates and incentives for guarding acts of agro-terrorism by encouraging best practices in various agricultural sectors (like beef, poultry, grain, etc.); inter-governmental law enforcement and public health agency protocols for how federal, state, and local responders will deal with a terrorist attack; and radio-frequency identification device requirements 209

Id. at 112.

210

Id. (emphasis added).

211

Id. at 102–03. As explained in detail by Flynn: The concept is essentially the same as the E–Z Pass toll collection system. The reason why commuters love E–Z Pass is that it cuts down the time they have to spend in smog-ridden queues to pay a toll. They make an upfront investment in setting up the account and installing the transponder, and they get the daily benefit of a less frustrating commute. A green lane in a seaport would be authorized only for smart and secure containers whose integrity and location can be tracked. The benefits would come in three ways. First, the user of the green lane would be provided with assurances from U.S. authorities that these [container] boxes would receive preferential treatment, which translates into a lower risk of inspection. If their shipment is targeted for inspection for any reason, it would be moved to the head of the line. Second, should the United States have to set a higher level of terrorist alert, the inspection rate of containers that had come through an overseas green lane would remain unchanged. Finally, should the U.S. government have to close down its ports following a terrorist attack, the first containers that would be allowed to move again once the ports were reopened would be those that originated from secure ports or terminals that have green lane privileges.

Flynn, supra note 201, at 102–03. 84

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to monitor agricultural shipments so that the point of origin could be quickly identified, coupled with investments in research and prevention techniques for bioterrorism.212 Other measures include chemical safety requirements for minimum security standards at chemical facilities such as fencing, access control and 24/7 electronic surveillance;213 required GPS device provisions on “all trains, trucks or vessels carrying hazardous chemicals”;214 rerouting rules for extremely hazardous chemical shipments so that chemicals like chlorine gas must pass around cities, and bans of “deadly chemicals at plants near high population areas”;215 mandates for radiation detectors in urban centers, and suggested procedures for first responder preparation in dealing with nuclear terrorism;216 and requiring mandatory training, information, and ameliorative standards for first responders to chemical or biological terrorism. Even more measures include mandated security plans for researchlaboratory use, storage, and disposal of pathogens (including adequate locks and security cameras);217 developing urban “hospital capacity to deal with mass casualty events”;218 setting national interoperable communication standards “to facilitate police, fire departments, and county, state, regional, and federal response personnel communicating with one another during a major emergency”;219 providing basic protective and emergency gear such as personal protective suits, oxygen, respirators and other basic emergency equipment to every county in the nation;220 and establishing cyber, financial, and energy security regulations and incentives.221 In initiating and implementing the vital measures described above, the President and his advisers should be guided by seven principles of cost/benefit national security strategy. (1) “There is no such thing as fail-safe security, and any attempt to achieve it will be counterproductive.”222 (2) “Security must always be a work in progress.”223 (3) “Homeland security requires forging and sustaining new

212

Id. at 112–18.

213

Id. at 119–20.

214

Id. at 121.

215

Flynn, supra note 201, at 121.

216

Id. at 122–23.

217

Id. at 123–24.

218

Id. at 126. “[T]he Bush administration is putting in place a system called Bio-Watch, which involves installing and monitoring a nationwide set of air sensors to check for the presence of smallpox, anthrax, and other pathogens. . . . [and a] public health surveillance system . . .” for disease outbreak statistical monitoring, and a national stockpile of medications. Flynn, supra note 201, at 124–25.

219

Id. at 127.

220

Id. at 128.

221

Id. at 130–31.

222

Flynn, supra note 201, at 165.

223

Id.

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partnerships at home and abroad.”224 (4) “Our federalist system of government is a major asset.”225 (5) “Emergency preparedness can save lives and significantly reduce the economic consequences of terrorist attacks.”226 (6) “Homeland security measures have deterrence value.”227 (7) “Homeland security measures will have derivative benefits for other public and private goods.”228 The President should use his or her influence and position to encourage business and governmental technological innovations, many of which have already been adopted in Israel. Some of these innovations include cameras at airport ticket counters to detect if a person is stressed; satellite and surveillance equipment that can “see” through walls; computer programs capable of spotting abnormal behavior; national ID “smart” cards encoding personal, financial and medical information required for electronic police spot checks; GPS chip technology for cell phones and automobiles that allow location assessment in an emergency; and transponder implants that can be injected into the bodies of prisoners and foreign nationals.229 The reality of accelerated technological progress in genetics, nanotechnology, and artificial intelligence into the remainder of the twenty-first century230 enhances the argument that American Presidents ought to speed up and deploy these advancements for the purpose of detecting and intercepting terrorist plots. Despite controversial potential abuses, the President is justified in nurturing advanced technologies such as: Total Information Awareness (TIA) (“to collect and exploit digital records of all kinds from private and public compilers of information–phone records, bank records, credit card records, police records, medical records, travel records–basically everything that is recorded about individuals”231); “data mining” (“a computer intensive approach to finding meaning in apparently random patterns” [in] “random actions–buying, selling, check writing, getting on

224

Id. at 166.

225

Id.

226

Flynn, supra note 201, at 167.

227

Id.

228

Id. at 168.

229

See generally Matthew Brzezinski, Fortress America: On the Frontlines of Homeland Security–An Inside Look at the Coming Surveillance State (2004).

230

See generally Ray Kurzweil, The Singularity is Near: When Humans Transcend Biology (2005). The key idea underlying the impending Singularity is that the pace of change of our humancreated technology is accelerating and its powers are expanding at an exponential pace. Exponential growth is deceptive. It starts out almost imperceptibly and then explodes with unexpected fury–unexpected, that is, if one does not take care to follow its trajectory. Id. at 7–8.

231 86

Thomas Powers, The Biggest Secret, N.Y. Rev. Books, Feb. 23, 2006, at 9, 11. TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008

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planes” and similar actions232); comprehensive video surveillance cameras at urban transit stations, streets, public housing complexes, and in major buildings;233 nanotechnology (“devices the size of dust particles” to “carry out reconnaissance missions”234). III. THE LIMITS OF THE PRESIDENTIAL MAXIMUM-SECURITY STATE In carrying out the Presidential Oath, the President of the United States must be aware of limiting factors to the pursuit of an American maximum-security state. There are four relevant limits to the presidential pursuit of a maximum-security American state in the post-9/11 world: (a) limits of economics, (b) limits of psychology, (c) limits of politics, and (d) limits of law. A. Economics Richard A. Posner, a United States Circuit Judge for the Seventh Circuit and public intellectual extraordinaire,235 has discussed the economics of American intelligence reform by identifying two key constraints that bedevil even the best intelligence system: (1) “the paradox of the strength of weakness,” and (2) “[t]he costs of false alarms.”236 The paradox of the strength of weakness involves the following: “Surprise–the favored tactic of the weak adversary because of its force-multiplying effect–is maximized by choosing a low-value target and is likely to succeed because a rational potential victim devotes only limited resources to trying to prevent a weak adversary’s attack on such a target.”237 Indeed, this paradox is captured in the aforementioned phrase “asymmetric warfare.”238

232

Id. at 10. See, e.g., Robert Block & Jay Solomon, Pentagon Sets Up Intelligence Efforts Inside U.S. Borders, Wall St. J., Apr. 27, 2006, at A1.

233

See, e.g., Gary Washburn, City Sold on Video Security, Chic. Trib., Feb. 18, 2006, at C1.

234

Kurzweil, supra note 230, at 424.

235

See Robert F. Blomquist, Judge Posner’s Dissenting Judicial Oeuvre and the Aesthetics of Canonicity, 36 N.M. L. Rev. 161, 161 n.1 (2006) (noting his scholarly productivity).

236

Richard A. Posner, Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11, at 204 (2005).

237

Id. Posner provides a more detailed account of the paradox of the strength of weakness in the following language: [A] surprise attack is likelier to succeed when it has a low antecedent probability of success and the attacker is weak, because on both counts the victim will discount the danger and because the range of possible low-probability attacks by weak adversaries is much greater than the range of possible high-probability attacks by strong ones. The potential victim marshals his defensive resources to protect the high-probability targets of greatest value, leaving unprotected the immense number of lower-valued low-probability targets. Knowing this, an enemy who wants to achieve strategic surprise picks one of those inferior targets.

Id. at 93. 238

See supra note 207 and accompanying text.

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Posner focuses significant attention on the cost of false alarms in a national intelligence system. He refers to these costs as “lulling (‘the boy crying wolf ’)” costs.239 The lulling cost “is greater the smaller the probability of attack and therefore the more often that warnings will be false alarms, which increase the likelihood that true alarms will be ignored.”240 Yet, intelligence professionals are acutely aware of damage that can be visited on their own careers by false alarms, and will seek to protect their jobs by the following individually rational but collectively irrational behaviors: (1) [A]voiding definite predictions, (2) erring on the side of not sounding the alarm, (3) deferring the making of a prediction, while gathering more information, (4) hesitating to update predictions on the basis of new information, (5) shying away from making predictions that are inconsistent with what their colleagues and superiors are predicting, and (6), in the wake of an attack, overemphasizing intelligence directed at preventing an exact repetition of it.241

In addition to the two economic constraints outlined by Posner, there are also simple economic and resource factors limiting the amount that even a wealthy country like the United States can afford to spend on homeland security and preventative wars. B. Psychology Various psychological limitations impede the President’s ability to guard America against surprise terrorist attacks. One is “the expectation that the future will repeat the past,” as exemplified by “the 9/11 Commission’s proposals and the congressional response.”242 Indeed, “[j]ust as generals prepare to fight the previous war, intelligence agencies and their critics prepare to prevent the previous surprise attack. The commission’s proposals are implicitly oriented toward preventing a more or less exact repetition of the 9/11 attacks and other relatively low-tech attacks by Islamic terrorists.”243 A second psychological limitation to leading America in devising a security shield against surprise terrorist attacks is the cognitive limitations of government officials in anticipating the almost infinite possible targets of these attacks.244 As observed by Posner: The commission’s report mentions only in passing the greater potential threat posed by weapons of mass destruction in the hands of terrorists or enemy states. Deadly pathogens, lethal gases, and even small atomic bombs can be fabricated almost

239

Posner, supra note 236, at 88.

240

Id.

241

Id. at 108 (footnote omitted).

242

Posner, supra note 236, at 204.

243

Id.

244

Id. at 205.

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anywhere in the world and, because of their small size, delivered surreptitiously to the United States and activated by a small number of terrorists or foreign agents. A terrorist gang may even be able to buy an atomic bomb. We cannot seal our borders against such deliveries . . . . A lethal pathogen dispensed as an aerosol at almost any major airport in the world could cause a devastating worldwide epidemic. The attacker wouldn’t have to pass through airport security and the airport wouldn’t have to be in the United States even if this country was the intended target. The lethal pathogen most suitable for such an attack–the smallpox virus–is difficult to procure because all known specimens of the virus are locked up under tight security in a pair of U.S. and Russian laboratories. But advances in biotechnology may soon enable the virus to be synthesized.245

A third psychological limitation to presidential leadership crafting a solid homeland security defense for surprise terrorist attacks is the libertarian mindset of the typical American: “an individualistic and consumer mentality that places a high value on privacy, autonomy, freedom of movement, comfort, and convenience, and that therefore resents the restrictions on privacy, autonomy, and so forth entailed by effective security measures.”246 A fourth psychological barrier to Presidential efforts to secure the American homeland boils down to mass self-deception. Instead of mobilizing a defense against enemies who are intent on targeting innocent civilians and critical infrastructure, the U.S. government is placing its faith in familiar national security formulas. Washington is acting on a false premise that the terrorist threat can be contained by taking the battle to the enemy, in overseas efforts to isolate and topple rogue states, and by hunting down the al Qaeda leadership.247

But “[e]ach terror-free day in America lulls us further into a false sense of confidence.”248 C. Politics While the President is America’s constitutionally-designated national security sentinel,249 there are assorted political limits on his or her ability to lead the nation in fashioning wise and effective homeland security policy. First, Congress is institutionally ill-equipped to effectively and efficiently do the job of providing meaningful oversight and assistance to the executive branch in reviewing America’s

245

Id. at 205–06 (footnote omitted).

246

Posner, supra note 236, at 89–90.

247

Flynn, supra note 201, at 38.

248

Id.

249

See supra notes 9–102 and accompanying text.

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counterterrorism policy. The dismal failure of the congressional Joint Inquiry following September 11, 2001 is case-in-point.250 Second, the penchant for congressional abdication of its legislative oversight function, by turning to “independent” blue ribbon commissions in recent decades,251 creates another political limitation to effective presidential leadership protecting the American homeland. The National Commission to Study the Terrorist Attacks Upon the United States (“the 9/11 Commission”) exemplifies the political unpredictability (and policy perversity) of letting unelected commission members substitute their (often flawed) judgment for the deliberative give-and-take of discussions between the President and his advisers, on the one hand, and congressional leaders and their staff, on the other hand.252 On this point, Posner has expressed an unmitigated condemnation of “the errors in the composition of the commission, the timing of its report, the precipitate reaction of the [2004] Presidential candidates, the stampede in Congress, and the laxity of the media,” adding up to what he called “the political equivalent of a plane crash,” which led to the passage of the Intelligence Reform Act in 2004.253 Third, another political limitation on robust Presidential leadership protecting the American homeland from terrorist attacks is the extreme unpopularity that has come about from the modest restrictions on civil liberties signed into law by the USA PATRIOT Act, which is intended to grapple with the sensitive issue of making further tradeoffs between liberty and security.254 Fourth, the President faces powerful countervailing infighting and resistance to reform national security and homeland protection by entrenched federal bureaucracies such as the Federal Bureau of Investigation (FBI), the Central Intelligence

250

See Blomquist, supra note 109, at 75. See also Norman J. Ornstein & Thomas E. Mann, When Congress Checks Out, Foreign Aff., Nov.–Dec. 2006, at 67, 73–74 (discussing analogous failure of congressional oversight of the Bush Administration’s lack of meaningful planning for a post-Saddam Hussein Iraq).

251

See, e.g., supra note 156 and accompanying text (9/11 Commission); and supra note 186 and accompanying text (Iraq Study Group).

252

One of the problems with government by blue ribbon commission is the often “misguided quest for unanimity” which pervades this process. Posner, supra note 236, at 207.

253

Id. at 199. According to Posner: Seconded by Congress, the commission summarily rejected the structural change most clearly implied not only by its own narrative of events behind the failure to prevent the 9/11 attacks but also by the various literatures . . . [on organizational theory] removing the FBI’s intelligence service from the Bureau and making it the nucleus of a domestic intelligence agency modeled on the United Kingdom’s M15 and similar organizations in other countries.

Id. at 200. 254

90

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Agency (CIA), the Department of Defense (DOD), and their congressional patrons.255 As explained by Posner, the Intelligence Reform Act is flawed because: The layering of another official over the existing structure–the Director of National Intelligence, who is to be more than a mere board or committee chairman, who is to seize the reins and guide the horses but whose powers are ill-defined and overlap those of other powerful officials–is likely to engender constant conflict with the heads of the intelligence services, especially the CIA, and with the services’ department heads, such as the Secretary of Defense and the Secretary of Homeland Security. The DNI may well find himself overloaded with duties that prevent him from performing the advisory and coordinating functions assigned him . . . and embroiled in interagency conflict.256 Fifth, another political limitation on the President’s ability to make wise and appropriate decisions to protect national security and the American homeland in the wake of the Intelligence Reform Act relates to the flow of critical information. As Posner points out: The flow of information will be impeded and distorted by the lengthening of the bureaucratic distance between the operating level of the intelligence system and the policymaking level, at which responses to intelligence are devised. Intelligence may become more politicized than it is at present because of the concentration of power in one person whom the President can lean on to produce estimates that will support Presidential initiatives that may be bad policy though clever politics. And if the DNI does fulfill the legislative directive to bring about greater uniformity in the intelligence community, it may be at the price of retarding both the production of accurate intelligence data, and the imaginative analysis of the data, by reducing the diversity of organization cultures that fosters innovative thinking.257

Sixth, a final political obstacle that confronts the President, after the precipitous passage of the Intelligence Reform Act, is the prospect for complacency about the ostensibly “reformed” system of national intelligence and homeland security, which may “deflect attention from graver threats than a repetition of 9/11.”258 Thus: If the public believes that the Intelligence Reform Act has fixed the system– if it believes that any reforms can ensure against intelligence failures–it will be [politically] less willing to support (and pay for) the strengthening of the other elements of an integrated system of national defense, including deterrence, border defense,

255

See Posner, supra note 236, at 169–197, 200–01. See also Blomquist, supra note 109, at 29–31 (discussing the competing rivalries between the FBI and the CIA which led to the unpreparedness for the 9/11 attacks).

256

Posner, supra note 236, at 202–03. The firing of CIA Director Porter Goss may be an outcome of this bureaucratic infighting with the DNI. See Robert Windrem, CIA Director Porter Goss Resigns, May 5, 2006, http://www.msnbc.msn.com/id/12646394. Compare this thoughtful strategic overview by the present Director of National Intelligence, Mike McConnell, Overhauling Intelligence, Foreign Aff., July 1, 2007, at 49.

257

Posner, supra note 236, at 203.

258

Id. at 208.

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and the guarding and hardening of potential targets. Such a relaxation of effort would be an invitation to disaster.259

D. Law Notwithstanding a robust American constitutional tradition of the President acting as an energetic and proactive sentinel of national security,260 post-9/11 presidents must confront a variety of legal limitations in pursuit of the war on terror. First, as illustrated by the congressionally-imposed prescriptions ensconced in the 2004 Intelligence Reform Act on production and management of highly-sensitive intelligence,261 the President must deal with attempts by Congress to legally restrict his separate constitutional responsibilities to preserve and protect America from surprise terrorist attacks. The President must decide whether attempts by Congress to engage in “micromanagement of the executive branch in an area–national security–where the need for decisive, timely and often secret action” constitute unconstitutional interference with “presidential prerogative,” as set forth in Article II of the Constitution.262 One option for dealing with an intrusive Congress would be for the President to openly declare his constitutional objection to such congressional micromanaging of national security. Another less confrontational approach would be for the President to work around certain congressional restrictions by administrative finesse263 and creative interpretation.264 An important part of presidential creative interpretation, assuming that he chooses to accept the constitutionality of congressional attempts to legislatively micromanage American national security policy, is the use of “necessary and proper” constructions of the legislation, enabling the president and the designated administrative agencies to fulfill the duties expressly required by the legislation, according to the norms of administrative efficiency.265 Second, assuming the President decides to confront congressional intrusion in an effort to manage national security, protect the American homeland, or pursue the war on terrorism, another legal limitation on Presidential power will be judicial interpretation of his constitutional powers in discrete cases and controversies. At present, there is a difference of scholarly opinion on the nature and limits of Presidential powers over national defense, foreign policy, national security,

259

Id. (second emphasis added).

260

See supra notes 9–102 and accompanying text.

261

See Posner, supra note 236, at 199–208.

262

Richard A. Posner, Uncertain Shield: The U.S. Intelligence System in the Throes of Reform 172 (2006).

263

See Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245 (2001).

264

Posner, supra note 262, at 178–94.

265

Id. at 178.

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law enforcement, and war.266 Moreover, as illustrated in the 2006 Supreme Court case, Hamdan v. Rumsfeld, the Supreme Court is divided in its view of the presidential prerogative over national security.267 Third, a final potential limit on Presidential power to pursue a maximum-security American state in the face of terrorism is the content of international law and the statements and actions of the international politico-legal institutions, such as the United Nations.268 IV. THE PRESIPRUDENCE OF AMERICAN NATIONAL SECURITY IN THE POST-9/11 ERA A. The Record of President George W. Bush Before we critique and evaluate the record of the Bush Administration in responding to terrorism in the years since 9/11, it is appropriate to review some of the key actions taken by President Bush. According to a somewhat negative review of the Bush Administration’s counter-terrorism record: Since September 11, the Bush administration has, among other things, (1) reorganized the federal bureaucracy [in the new department of Homeland Security and the organizational mandates of the Intelligence Reform Act], (2) increased border and airport security, (3) reduced barriers to information sharing among law enforcement and intelligence officials, (4) prohibited the financing of terrorist organizations, (5) expanded prohibitions on money laundering, (6) sent undercover informants into mosques, (7) engaged in warrantless wiretapping of Americans, (8) prosecuted lawyers, translators, and web site managers for speech, (9) detained “enemy combatants” at Guantanámo Bay, Bagram Air Force Base in Afghanistan, and in Iraq, (10) carried out “targeted assassinations” of al-Qaeda suspects, (11) created a network of secret detention centers around the world into which the government has “disappeared” other suspected al-Qaeda leaders, (12) employed coercive interrogation tactics up to and including torture, and (13) tendered other suspects to third countries to be tortured there.269 The “report card” issued by the 9/11 Public Discourse Project (the unofficial successor to the 9/11 Commission) in February of 2006 provides another

266

Compare, e.g., id. at 171–194, Eric A. Posner & Adrian Vermeule, Terror in the Balance: Security, Liberty and The Courts (2007), Richard A. Posner, Not A Suicide Pact: The Constitution in a Time of National Emergency (2006), and John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After / (2005) (urging broad and expansive presidential constitutional powers), with Bruce Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism (2006), Joseph P. Margulies, Guantanamo and the Abuse of Presidential Power (2006), and Louis Fisher, Military Tribunals and Presidential Power (2005) (urging circumscribed presidential powers and congressional dominance).

267

Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).

268

See Paul Kennedy, The Parliament of Man: The Past, Present, and Future of the United Nations 72–76 (2006) (describing the United Nations’ response to 9/11 and Saddam Hussein).

269

David Cole, In Case of Emergency, N.Y. Rev. Books, July 13, 2006, at 40, 42 (book review).

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way to look at the quality of the President’s leadership in pursuing national counterterrorism policy since September 11, 2001.270 The Project handed down five grades of “F.” A failing grade was given for the failure to address the need for a uniform radio frequency for emergency workers, and the fact that no action on this has been accorded urgency since nothing will happen under existing law until 2009.271 A second failing grade was given on the need for “financing homeland security based on risk,” because “[g]rants for security often go to pork-barrel projects without regard for a location’s risks . . . or for the potential consequences of an attack.”272 A third failing grade entailed the lack of significant passenger screening improvements since 9/11, and the delay in testing a new “passenger screening . . . system, utilizing all names on the consolidated terror watch list” database.273 A fourth “F” was given by the 9/11 Public Discourse Project for the continued absence of “standards for the detention and prosecution of captured terrorists” by the United States and European Union governments.274

The 9/11 Public Discourse Project issued more than eight grades of “D.” Some of the categories receiving this grade included: (1) “[c]hecked bag and cargo screening[,]” including ports, in light of the low priority accorded this matter, with slow progress and inadequate funding;275 (2) “infrastructure” planning because of the lack of vulnerability analysis and postponement of key policy decisions;276 (3) border security between the United States and other countries because of a lack of “leadership role in passport security” and “no systematic diplomatic effort to share terrorist watchlists”;277 (4) “minimal” changes regarding “[i]ncentives for sharing information” on security issues “between federal authorities and state and local level officials”;278 (5) lack of adequate federal resources and federal rules and enforcement for “[g]overnment-wide information sharing”;279 (6) “[i]ntelligence oversight” congressional deficiencies, given “the power of the Defense Appropriations subcommittees and Armed Services committees” in the

270

See 9/11 Public Discourse Project, Final Report on 9/11 Commission Recommendations (Dec. 5, 2005), availabe at http://www.9-11pdp.org/press/2005-12-05_report.pdf; see also Bill Marsh, U.S. Security: Failures, Near-Failures and an A-Minus, N.Y. Times, Feb. 26, 2006, at WK 3.

271

9/11 Public Discourse Project, supra note 270, at 1; see also Marsh, supra note 270.

272

Marsh, supra note 270 (some capitalization and boldface type omitted); see also 9/11 Public Discourse Project, supra note 270, at 1.

273

9/11 Public Discourse Project, supra note 270, at 1.

274

9/11 Public Discourse Project, supra note 270, at 5; see also Marsh, supra note 270.

275

9/11 Public Discourse Project, supra note 270, at 2; see also Marsh, supra note 270.

276

9/11 Public Discourse Project, supra note 270, at 1; see also Marsh, supra note 270.

277

9/11 Public Discourse Project, supra note 270, at 2; see also Marsh, supra note 270.

278

9/11 Public Discourse Project, supra note 270, at 3; see also Marsh, supra note 270.

279

9/11 Public Discourse Project, supra note 270, at 3; see also Marsh, supra note 270.

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House and Senate;280 (7) lack of appropriate national policies to “counter[ ] the greatest threat to America’s security”– weapons of mass destruction (WMD);281 and (8) lack of an American diplomatic effort to press for “reform in Saudi Arabia” regarding “regulat[ion of ] charities and control[ing] the flow of money to extremist groups.”282 The 9/11 Public Discourse Project issued nine grades of “C” to the federal government, including, in pertinent part: (1) not implementing “a unified Incident Command System” before or after Hurricane Katrina;283 (2) inadequate “[p]rivate sector preparedness” regarding security “standards” and common “business practices”;284 (3) a lack of specific instructions to private and public participants in harmonizing their actions for a national transportation strategy;285 (4) inadequate appropriations and policy urgency to improve “airline screening checkpoints to detect explosives”;286 (5) flagging of FBI counterterrorism efforts due to “inertia and complacency”;287 (6) lack of a “comprehensive” national “border screening” system, and “lack of progress on coordination between [government] agencies” in pursuing this objective;288 (7) ineffective “[s]upport [for] Pakistan against extremists” because “extremist-linked madrassas or terrorist camps” and Taliban forces continue to operate freely in some areas;289 and (8) the lack of a “permanent contact group of leading governments” with the purpose of coordinating strategy.290 The 9/11 Public Discourse Project gave twelve grades of “B” to the federal government, including, in pertinent part: (1) the successful biometric screening of visitors at most air, land and sea entry points to the United States with remaining deficiencies in the “exit component”;291 (2) progress in state issued identification by promulgation of federal standards, but in light of the delay on standards for “birth certificates . . . state-issued ID’s are still not secure”;292 (3) the successful naming of 280

9/11 Public Discourse Project, supra note 270, at 3; see also Marsh, supra note 270.

281

9/11 Public Discourse Project, supra note 270, at 4; see also Marsh, supra note 270.

282

9/11 Public Discourse Project, supra note 270, at 4; see also Marsh, supra note 270.

283

9/11 Public Discourse Project, supra note 270, at 1; see also Marsh, supra note 270.

284

9/11 Public Discourse Project, supra note 270, at 1; see also Marsh, supra note 270.

285

9/11 Public Discourse Project, supra note 270, at 1; see also Marsh, supra note 270. The actual grade given by the Project was a “C-.”

286

9/11 Public Discourse Project, supra note 270, at 1; see also Marsh, supra note 270.

287

9/11 Public Discourse Project, supra note 270, at 3; see also Marsh, supra note 270.

288

9/11 Public Discourse Project, supra note 270, at 2; see also Marsh, supra note 270.

289

9/11 Public Discourse Project, supra note 270, at 4; see also Marsh, supra note 270. The actual grade given by the Project was a “C+.”

290

9/11 Public Discourse Project, supra note 270, at 5; see also Marsh, supra note 270.

291

9/11 Public Discourse Project, supra note 270, at 2; see also Marsh, supra note 270.

292

9/11 Public Discourse Project, supra note 270, at 2; see also Marsh, supra note 270. The actual grade given by the Project was a “B-”.

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a “Director of National Intelligence . . . to drive reform, and create a unity of effort,” but reform of these agencies must occur soon;293 (4) successful launching of a “National Counterterrorism Center,” but lack of “sufficient resources and personnel to fulfill its . . . role”;294 (5) improved “airspace defense. . . ., [but] no single agency currently leads the interagency response . . ., and there is no overarching plan to secure airspace outside the National Capital region”;295 (6) slowing support for Afghanistan because, while “[p]rogress has been made, . . . attacks by Taliban and other extremists continue and the drug situation has worsened”;296 (7) moderate progress on “standardized security clearances” with a “plan issued . . . [but all] the hard work [still] ahead”;297 and (8) sporadic results in identifying terrorist sanctuaries with progress hard to gauge and “little sign of long-term efforts” against them.298 Alas, the 9/11 Public Discourse Project gave only one “A” grade (actually an “A-”) to the federal government on the issue of “terrorist financing” because “[t]he U.S. has won the support of key countries in tackling terrorism finance . . . . [but] the State Department and Treasury Department are engaged in unhelpful turf battles, and the overall effort lacks leadership.”299 In assessing the weight to be given the 9/11 Public Discourse Project’s critique of the Bush Administration’s post-9/11 record, however, it is important to point out that many of the discrete areas of policy analyzed in the Project’s report card were given passing grades; a decided majority of areas were given an average or above average rating.300 Moreover, several of the 9/11 Public Discourse Project criticisms can be usefully summarized as alleged inadequacies because of a lack of greater centralization in the American intelligence system;301 yet, observers such as Posner have questioned the wisdom of centralizing American intelligence instead of decentralizing it.302 Furthermore, several of the Project quibbles are in the nature of soft criticisms for not devoting enough resources to a particular problem or for not moving quickly enough.303 293

9/11 Public Discourse Project, supra note 270, at 2; see also Marsh, supra note 270.

294

9/11 Public Discourse Project, supra note 270, at 2; see also Marsh, supra note 270.

295

9/11 Public Discourse Project, supra note 270, at 2; see also Marsh, supra note 270. The actual grade given by the Project was a “B-.”

296

9/11 Public Discourse Project, supra note 270, at 4; see also Marsh, supra note 270.

297

9/11 Public Discourse Project, supra note 270, at 4; see also Marsh, supra note 270.

298

9/11 Public Discourse Project, supra note 270, at 4; see also Marsh, supra note 270.

299

9/11 Public Discourse Project, supra note 270, at 5; see also Marsh, supra note 270.

300

See supra notes 270–99 and accompanying text.

301

See, e.g., supra notes 273, 283, 285, 288, 290, 293, 294, 295, 299, and accompanying text.

302

See, e.g., Posner, supra note 236, at 202–03. See also, e.g., Posner, supra note 262, at 59–68, 207–208.

303

See, e.g., supra notes 271, 273, 275, 276, 279, 286, 287, 293, 294, and accompanying text.

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A final way of looking at the quality of presidential leadership in formulating and carrying out counterterrorism policy since 9/11 is the kind of holistic critiques exemplified by Stanley Hoffman’s August 2006 review essay in the New York Review of Books.304 Hoffman would have the United States “improve” its “own economic and moral condition” [by] “return[ing] to the rule of law and to the protection of civil liberties, and [putting] an end to efforts to escape from the obligations of international law in the fight against terrorism”;305 engaging in a “true partnership” with other nations to solve international problems in the Middle East;306 adopting “a drastic long-term policy of demilitarization carried out in collaboration with foreign partners”;307 seeking useful reform of the United Nations without the “unholy combination” of U.S. tactics in conjunction with “a number of developing countries, such as Brazil, India, Egypt, and South Africa”;308 and recognizing “the need to form a new ‘partnership’ of advanced countries for the economic development of the underdeveloped ones.”309 By either of the first two measures of performance, the Bush Administration has done “OK” in the post-9/11 articulation and development of counterterrorism policy.310 Various component parts of counterterrorism policy have been put into place–albeit imperfectly and ineffectively to some observers–to satisfy minimal standards of presidential leadership. Not until we get to the abstractly political level, exemplified by Hoffman’s critique, do we sense an across-the-board condemnation of President Bush’s post-9/11 counterterrorism agenda.311 B. Model Presiprudence (Looking Back to Lincoln for Inspiration) President George W. Bush and his successors should study and reconsider the strategic legal actions of President Abraham Lincoln’s response to the national emergency of secession of the southern states, confederate state violence against the federal government, and ultimately outright civil war. President Lincoln created law and legal principles in pursuance of “the President’s constitutional responsibility to pursue American national interests (i.e., interests of the whole) stemming from his [taking and strict observance of the] unique and enduring Presidential oath” to preserve, protect, and defend the constitutional union.312 304

Stanley Hoffman, The Foreign Policy the U.S. Needs, N.Y. Rev. Books, Aug. 10, 2006, at 60, 60.

305

Id. at 62.

306

Id. at 62–63.

307

Id. at 63.

308

Hoffman, supra note 304, at 64.

309

Id.

310

See supra notes 268–302 and accompanying text.

311

See supra notes 304–309 and accompanying text.

312

Blomquist, supra note 4, at 51. As Professor Steven G. Calabresi has written, “the Framers in Philadelphia put more stock in the president as a defender of the Constitution than they did

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As amplified in his award-winning book on the purpose and power of Lincoln, Richard Carwardine313 explains how Lincoln exercised what I have referred to as presiprudence314 in his setting and ultimately achieving ambitious but realizable political goals in the context of legal reasoning and action. First, President-elect Lincoln set forth on his two-week, pre-inaugural journey across the nation with a “serious, two-fold purpose,” telling his close lawyer friend, William Herndon, “I am decided; my course is fixed; my path is blazed. The Union and the Constitution shall be preserved and the laws enforced at every and at all hazards.”315 Second, President-elect Lincoln linked his unwavering legal and political pursuit of Unionism with “Washington, Jefferson and Madison” [and] “the ideas of liberty and equality of opportunity for all, as incorporated into the Declaration and the Constitution, giving hope to the world for all future time.”316 Third, President Lincoln articulated a legal vision of the indivisible American Union in his first speech as President, his first inaugural address. He solemnly observed in this regard: In your hands, my dissatisfied fellow-countrymen and not in mine, is the momentous issue of civil war. The Government will not assail you. You can have no conflict without being yourselves the aggressors. You have no oath registered to heaven to destroy the Government; while I shall have the most solemn one to “preserve, protect and defend it.”317

Fourth, while “he made procedural mistakes” during the first six weeks of his administration–like taking “far too much time dealing personally with the hordes of job-seekers who day and night clogged up the White House”318–Lincoln, while dealing with rampant uncertainty in deciding how to deal with South Carolina’s threat to fire on Fort Sumter and how to prevent the border states from joining the nascent Confederacy, exercised “continuity and coherence” in his actions.319 “He navigated a course between the two express commitments he had entered into

in the Supreme Court” and “[t]he Supreme Court is basically a caboose on the train of government with the presidency functioning as the locomotive.” Steven G. Calabresi, Introduction: The Presidency, Federalist No. 10, and the Constitution, in Presidential Leadership: Rating the Best and the Worst in the White House 5, 9–10 ( James Taranto & Leonard Leo eds., 2004). 313

Richard Carwardine, Lincoln: A Life of Purpose and Power (2006).

314

Blomquist, supra note 4, at 50.

315

Carwardine, supra note 313, at 145 (internal quotation marks omitted).

316

Id. at 146 (internal quotation marks omitted).

317

Blomquist, supra note 4, at 18 (footnote omitted). See Carwardine, supra note 313, at 149–50.

318

Carwardine, supra note 313, at 155.

319

Id. at 157.

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in his inaugural.”320 “First, he would not preside over the erosion of the Union. Whatever ambiguity existed as to whether he was going to retake lost forts, he had been entirely clear about holding those still under Union control.”321 Indeed, President Lincoln knew that “[t]hese garrisons, and especially Sumter, situated as it was in the crucible of secessionism, were potent symbols of national authority.”322 “The second of Lincoln’s inaugural commitments was his promise not to coerce or assail the South. This effectively ruled out repossessing lost installations, or preemptive strikes against the Confederates to ensure the security of forts still held.”323 Lincoln, in taking these early actions before war broke out, knew that he “had inherited a nightmare that left him with few realistic options.”324 Fifth, on Sunday, April 14, 1861, all of Washington, D.C. learned of the Union capitulation at Sumter; “Lincoln’s immediate actions gave notice that he would himself take executive control of the war and devise its overall strategy.”325 Lincoln coupled presidential legal tools with communication to the nation: That afternoon he asked his cabinet to consider a proclamation in which he called on the states to raise seventy-five thousand militiamen to put down “combinations too powerful to be suppressed by the ordinary course of judicial proceeding,” and to repossess the forts and other federal property then beyond Union control. Published in the next day’s press, the proclamation also summoned Congress into special session on July 4. The delay would allow the militia’s term of service to be extended to three months (by law it could serve for no more than thirty days after the opening day of a congressional session), but just as important was the opportunity it gave Lincoln to establish his control unhindered. Before Independence Day he took further executive action, establishing a blockade of the ports of the rebel states, increasing the size of the regular army and navy, calling up over forty thousand three-year volunteers, and entrusting $2 million of Treasury funds to private individuals to buy arms. Most controversially, on April 27 he suspended the privilege of the writ of habeas corpus along the corridor between Washington and Philadelphia; to allow the summary military arrest, without trial, of those who threatened the passage of troops to the nation’s capital. . . .

The steps that Lincoln took during the early stages of the war showed an impressive and instinctive grasp of strategic essentials.326 Sixth, after the start of the Civil War in April of 1861, Lincoln started to work on “a compelling rationale for the war and to show that the administration’s

320

Id.

321

Id.

322

Carwardine, supra note 313, at 157.

323

Id. at 158.

324

Id. at 159.

325

Id. at 163.

326

Carwardine, supra note 313, at 163–64.

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purposes were essentially conservative.”327 Lincoln started to assemble phrases in 1861 that he would polish at Gettysburg in 1863 [about] whether a constitutional republic, or a democracy–a government of the people, by the same people–can, or cannot, maintain its territorial integrity, against its own domestic foes . . . . [and whether] a government, of necessity [must] be too strong for the liberties of its own people, or too weak to maintain its own existence.328

Seventh, in response to a constitutional case before the Supreme Court challenging the President’s authority to suspend the writ of habeas corpus, “Lincoln [rhetorically] volleyed the argument back to the [Supreme Court]: the president had indeed . . . taken an oath to take care that the laws be faithfully executed, but are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated.”329 Eighth, President Lincoln chose the “expedient course” of liberally interpreting the constitutional requirement that a new state (in this case West Virginia) should only occur with the dividing state’s permission (in this case, Virginia, which had seceded) by signing legislation creating the new state of West Virginia in late 1862.330 Ninth, President Lincoln, for the strategic purpose of doing his best to keep Missouri from seceding from the Union, countermanded the military proclamation of General John C. Frémont in “free[ing] the slaves of 331 by directing “Frémont to bring the proclamation into line with the terms of the Confiscation Act that Congress had passed” shortly before, which law “allowed the Union, through judicial proceedings, to confiscate those slaves assisting Confederate forces.”332 Tenth, Lincoln deftly navigated the intricacies of international law in the celebrated Trent affair involving U.S. Captain Charles Wilkes’s action in removing two British commissioners.333 President Lincoln worked with Secretary of State Seward in the Trent affair to get Britain to embrace the principle of freedom of the seas and respect for the rights of neutrals, while “free[ing] the [British] captives and mak[ing] reparation for Wilkes’s illegal act, but offer[ing] no apology for a deed not authorized by the administration.”334

327

Id. at 168.

328

Id. at 169 (internal quotation marks omitted).

329

Id. at 170 (internal quotation marks omitted).

330

Carwardine, supra note 313, at 174.

331

Id. at 177.

332

Id. at 178 (internal quotation marks omitted).

333

Id. at 182.

334

Carwardine, supra note 313, at 184.

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President Lincoln exercised presiprudence–crafty, strategic, presidential lawmaking and interpretation–in several additional respects: in readying and ultimately issuing the Emancipation Proclamation in 1863;335 in standing for re-election in 1864 during the nation’s only Civil War;336 in championing the cause of the Thirteenth Amendment;337 and in patiently figuring out how to use executive power to articulate and carry out national security strategy.338 C. Presiprudence for the Future The need for a strategic presidential deployment of law in the service of national security in the post-9/11 era requires the high quality of presiprudence demonstrated by President Abraham Lincoln from 1861 to 1865 in dealing with the national security exigencies of the Civil War. President George W. Bush and his successors should consider the following broad outlines of a post-9/11 counterterrorism national security presiprudence. 1. Timing President Lincoln’s greatest achievement was his sense of timing–his “tak[ing] a stethoscope to Union opinion and read[ing] it with such skill that he timed to perfection his redefinition of national purpose”339 in the context of an extended national security emergency. Such timing is of paramount importance to post-9/11 Presidents in wielding the tools of presidential legal authority (proclamations, executive orders, national security directives, signing statements, vetoes and veto messages, major speeches, appointments, military orders, proposed legislation, and the like). It was President Bush’s good timing in the eighteen months following September 11, 2001 that characterized his call for the PATRIOT Act, the invasion of the Taliban in Afghanistan, a federalized airport security agency, executive reorganization of homeland security, presidential support for legislation creating a new Department of Homeland Security, cooperation with Congress in forming an independent 9/11 commission, increasing the defense budget, coordination with Congress in passing domestic legislation to enforce two anti-terrorist treaties, increasing appropriations for intergovernmental bioterrorism and other public health emergency response measures, and an interstate pipeline security enactment.340 As recently pointed out by Francis Fukuyama, however, President Bush got ahead of American opinion during his first term by “announc[ing] a new strategic doctrine of preemptive action–actually, a doctrine of preventative war–that would take 335

See id. at 218–22, 230, 300, 303.

336

See id. at 289–309.

337

Id. at 231–32.

338

Carwardine, supra note 313, at 251–53.

339

Id. at 193.

340

See supra notes 112, 115, and accompanying text.

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the fight to the enemy, rather than relying on deterrence and containment that were the staples of Cold War policy.”341 President Bush pushed the limit even further in March of 2003, “invad[ing] and deposing the regime of Saddam Hussein on the [factually contestable] grounds that he had or was planning to acquire weapons of mass destruction (WMD).”342 As Professor Fukuyama puts it, the Bush Administration’s timing on implementing its new strategic doctrine of preventative war against Iraq–regardless of the view of America’s allies, international public opinion, and necessary preparation for addressing “post-conflict resolution” and “a prolonged insurgency”–was seriously flawed.343 The appropriate prescriptive analogy to Lincoln is the way that he slowly, but deliberately, waited for the public opinion in the Union to support a transition from merely saving the Union to freeing the slaves via the Emancipation Proclamation and the proposed Thirteenth Amendment.344 President Bush should have allowed his proposed doctrine of preventative war to simmer longer, and he should have waited for American and international opinion to solidify regarding the wisdom of invading Iraq. 2. Grand Strategy Like Lincoln’s “remorseless logic of his single-minded pursuit of reunion [,]”345 his role of “forcing the pace of change” in national security strategic thought, his “cold statistical ruthlessness,”346 and his aggressive strategy and overall plan347 to win the Civil War, grand strategy is of the highest importance for post-9/11 Presidents to study, think through, articulate, and plan. It will not do for our Presidents to be fed information and ideas that are not analyzed, criticized, and put into perspective. The President himself must collect streams of advice, and ultimately craft his or her own national security strategy. As argued by Fukuyama, President Bush’s post-9/11 strategic actions (at least as they relate to

341

Francis Fukuyama, America at the Crossroads: Democracy, Power, and the Neoconservative Legacy 1 (2006).

342

Id. at 2.

343

Id. at 2–3. As Fukuyama points out, the timing of various presidential national security presiprudence of dubious resonance really started with President Bush’s state of the union address in early 2002, and “his West Point and American Enterprise speeches in June 2002 and February 2003, and the National Security Strategy of the United States, published in September 2002,” collectively called the “Bush Doctrine.” Id. at 3. Cf. Bruce Riedel, Al Qaeda Strikes Back, Foreign Aff., May 1, 2007, at 24 (arguing that by rushing into Iraq instead of finishing off the hunt for Osama bin Laden, the Bush Administration unwittingly helped its enemies).

344

See supra notes 335, 337, and accompanying text.

345

Carwardine, supra note 313, at 251.

346

Id. at 252.

347

Id. at 253.

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Iraq and the prospect for exacerbation of Islamic Jihadism) were half-baked and ill-considered.348 President Bush and succeeding American presidents of the first half of the twentyfirst century must do the hard work of developing their own presidential grand strategy for addressing Islamic Jihadism, international terrorism, and the related dangers posed by radical states such as North Korea and Iran. Such a grand strategy should thoughtfully incorporate the following pragmatic and constantly updated strategic elements: internationally approved standards for arresting, questioning, detaining, and trying alleged terrorists; interim American standards for arresting, questioning, detaining and trying alleged terrorists (pending international normative agreement); policies for limiting American immigration and granting refugee status; policies for blocking the financing of international terrorism; and policies for criminal suits against terrorists, terrorist organization, and states that sponsor terrorism.349 A grand strategy should also incorporate policies for civil suits against terrorists, terrorist organizations, and states that sponsor terrorism; a range of coercive measures against states supporting international terrorism; policies for coordinating national security counterterrorism information and consultation with key officers in Congress; policies for gathering intelligence and counterintelligence information with due regard to human rights norms; and proposed standards for criminal national security violations (including offenses relating to attempted violent overthrow of the government, offenses involving interference with military activities, and offenses related to the protection of government secrets).350 Finally, such a strategy should also include policies regarding American security assistance and related programs (including military assistance and arms sales, economic assistance, commercial arms exports, and nuclear proliferation assistance); policies for protection of critical national information infrastructure; policies for federal emergency preparedness and response; policies for homeland security organization and management; and policies for national security environmental protection.351

348

Fukuyama, supra note 341, at 3–11. Cf. Neal Kumar Katyal, Comment, Hamdan v. Rumsfeld: The Legal Academy Goes to Practice, 120 Harv. L. Rev. 65, 70 n.20, 92 (2006) (criticizing President George W. Bush’s “radical constitutional agenda” whereby Bush “claimed” that he could “disregard and creatively interpret statutes duly enacted by Congress” in the guise of presidential powers over national security).

349

See National Security Law ( John Norton Moore & Robert F. Turner, eds., 2d ed. 2005) for an in-depth review of these and other critical national security law and policy topics. Cf. Thane Rosenbaum, The Counterterrorism Club, Wall St. J., July 18, 2007, at A15 (pointing out how more and more liberal democracies have started to develop harsher legal standards for terrorists).

350

See National Security Law, supra note 349.

351

Id.

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3. Communication Like Lincoln’s masterful record of rhetoric and public communication about war, anti-slavery, and governmental purposes,352 America’s post-9/11 presidents must carefully consider the time, place, substance and style of their national security counterterrorism public communications. “Political communication is an inescapable leadership responsibility, one that is impossible to delegate (like war or diplomacy, for example) and that is increasingly seen in the advanced democracies as a key test of political competence.”353 Because of the highly symbolic nature of the American Presidency, they “communicate . . . as much through deeds as words.”354 Our post-9/11 Presidents must carefully modulate the proper words with the proper occasion, information, and proposals about the ongoing war on terror. 4. Balance Finally, American national security presiprudence in the post-9/11 era must seek to emulate Lincoln’s vision of an “enhanced and ambitious nationalism,” suffused with “a strong sense of moral purpose” and pragmatic actions and words “shaped not by impulsive, self-aggrandizing action or self-righteousness, but by deep thought, breadth of vision, careful concern for consequences, and a remarkable lack of pride.”355 We can not afford to have weak or ineffective Presidents in the twentyfirst century. Our Presidents must seek to balance the logic of the American maximum-security state (encompassing the President’s constitutional role as national security sentinel, the worsening geopolitical threats around the world, and the emergence of high technology intelligence and security systems)356 with the limits of the American maximum-security state (entailing economic, psychological, political, and legal constraints).357 Almost impossible to define, this Lincolnesque morality might be said to boil down to appropriate “modesty in the exercise of . . . power.”358 352

See Carwardine, supra note 313, at 184, 189, 193–200, 216–17, 244–47.

353

Carnes Lord, The Modern Prince: What Leaders Need to Know Now 180 (2003).

354

Id. at 181.

355

Carwardine, supra note 313, at 321.

356

See supra Part II.

357

See supra notes Part III.

358

Jack Fuller, Commander In Chief Should Give Heed to Chief Justice, Chic. Trib., May 28, 2006, at C7. This editorial by a former editor and publisher of the Chicago Tribune ends with a harsh judgment of President George W. Bush’s national security presiprudence: A president who never gained a strong popular mandate in two elections, whose job performance is rated by the public as poor, who struggles to sustain an unpopular war and regain the moral high ground that the terrorist attack on the United States handed him, also has reasons to look for ways to build a consensus rather than pick a fight.

Id. See also H. Jefferson Powell, The President’s Authority Over Foreign Affairs, at xvi, 150–51 (2002) (suggesting a “presidential initiative view of the Constitution of foreign 104

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V. CONCLUSION This Article is a case study of the uniquely vital legal work product of presidents of the United States, or presiprudence. We have examined factors that militate in favor of presidential pursuit of a maximum-security American state in the post9/11 era. We have also looked at limits on the presidential maximum-security American state. The culmination for the Article is an attempt to formulate the presiprudence of American national security law and policy in the post-9/11 era. This–the heart of the Article–was done by first considering the national security record to date of President George W. Bush, on the one hand, and then proposing a four-part model of presiprudence by looking back to President Abraham Lincoln’s national security actions, rhetoric, and thinking during the American Civil War.

affairs” whereby the president should exercise “political judgment and moral wisdom” in this vital governmental sphere). Cf. Thomas L. Friedman, The Hail Mary Pass, N.Y. Times, May 2, 2007, at A21 (proposing a speech for President Bush to apologize for rushing into Iraq). TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008

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GENOCIDE IN SUDAN: THE ROLE OF OIL EXPLORATION AND THE ENTITLEMENT OF THE VICTIMS TO REPARATIONS Hannibal Travis†

Copyright © 2008 by the Arizona Board of Regents; Hannibal Travis. Originally published in Arizona Journal of International and Comparative Law (Spring 2008)

I. INTRODUCTION Just as war can be a form of politics carried on by other means, so can genocide represent economic policy carried out by means of mass murder.1 Genocide is often the outcome of acts designed to enrich a dominant racial, ethnic, religious, or political group at the expense of smaller, weaker, or supposedly “inferior” groups that possess valuable lands, monies, labor, or other resources. This Article describes the role played by multinational oil corporations in the failure of the international community to prevent repeated campaigns of genocide and ethnic cleansing against the non-Arab populations of Sudan. Although the depopulation of large numbers of indigenous Africans by Arab and Turkish conquerors goes back many centuries,2 the displacement of non-Arab populations accelerated with the discovery of oil in Sudan and lucrative contracts between the regime of Omar Hassan al-Bashir and international oil interests including the China National Petroleum Company (CNPC), Petronas, and Talisman Energy. Oil revenues have helped finance the acquisition of sophisticated military equipment by a regime that has exterminated approximately two and a half million indigenous Africans and †

Assistant Professor of Law, Florida International University College of Law; J.D. Harvard, 1999; member, International Association of Genocide Scholars. I would like to thank my colleague, Dr. Jeremy Levitt, for encouraging me to pursue my research on genocide in Sudan, and for providing me with extensive comments on an earlier draft of this article. I would also like to thank Professor Joëlle Anne Moreno for her very helpful comments and suggestions, and the editors of the Arizona Journal of International and Comparative Law for their thorough and careful work. Copyright Hannibal Travis 2008.

1

See Carl Von Clausewitz, on War 82–83 (1993).

2

The term “indigenous” in this context refers to the fact that the peoples of the African states and tribes prior to Arab conquests “lived on their land before settlers moved in as a result of conquest, occupation, colonization, etc.,” endangering the “livelihoods and very existence” of the African peoples. U.N. Econ. & Soc. Council, Comm. on Human Rights, Sub-Comm. on the Promotion & Protection of Human Rights, Working Group on Indigenous Populations, Working Paper on Globalization and the Economic, Social & Cultural Rights of Indigenous Populations, ¶ 2, U.N. Doc., E/CN.4/Sub.2/AC.4/2003/14 ( June 15, 2003) (prepared by El Hadju Guissé), available at http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E. CN.4. Sub.2.AC.4.2003.14.En?OpenDocument.

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devastated hundreds, perhaps thousands, of African towns and villages. With several powerful United Nations (U.N.) members having an interest in the continued flow of oil out of Sudan and weapons back in, the U.N. Security Council and other global bodies have failed to recognize or condemn the genocide in southern and central Sudan, which has spread since 2003 to Darfur and eastern Chad.3 The international community has justified its refusal to act effectively against genocide in Sudan by distorting international law, most notably in the Report of the International Commission of Inquiry on Darfur submitted to the U.N. Secretary-General in early 2005.4 The report concluded, contrary to the weight of precedent, that genocide had not occurred in Darfur because although the government and allied militias had systematically killed thousands of people, committed widespread rape, and burned hundreds or thousands of villages, it had not “exterminat[ed] the whole population that had not fled.”5 This Article demonstrates

3

See, e.g., Jane Macartney, China Lashes Out Against Darfur Critics in Olympics Row, The Times (U.K.), Feb 14, 2008, http://www.timesonline.co.uk/tol/news/world/asia/ article3367440.ece (“China . . . buys some 40 per cent of [Sudan’s] oil exports while selling it weapons and defending Khartoum in the UN Security Council.”); Ling Zhu, China, Sudan Vow to Boost Military Exchanges, XINHUA, Apr. 2, 2007, http://news.xinhuanet. com/english/2007-04/02/content_5926215.htm (reporting “smooth[ ]” military cooperation between Sudan and China); U.N. Approves Darfur Peacekeeping Force, Cnn.Com, Aug 31, 2006, http://edition.Cnn.Com/2006/WORLD/africa/08/31/un.sudanvote/index.html (China, Russia, and Qatar abstained on U.N. Security Council resolution dispatching peacekeepers to Darfur); Colum Lynch, Sanctions Against Sudanese Officials Sought Over Darfur, Wash. Post, Feb. 23, 2006, at A20 (China, Russia, and Qatar opposed limited U.N. Security Council sanctions on Sudanese government officials); Nabi Abdullaev, U.N. Data on Russian Arms Exports Paints Incomplete Picture, Defense News, June 26, 2006, at 32 (Russia sold six military aircraft to Sudan in 2004); Nick Wadhams, France Delays Vote on U.N. Resolution, Associated Press, Mar. 24, 2005, http://www.highbeam.com/doc/1P1-106723878.html (United States threatened to veto U.N. Security Council resolution calling for prosecution by the International Criminal Court of crimes committed in Darfur); Sudan Faces Threat of Sanctions, Cnn.Com, Sept. 18, 2004, http://www.Cnn.Com/2004/WORLD/africa/09/18/sudan.un.sanction/index. html (China, Russia, Algeria, and Pakistan abstained from U.N. Security Council resolution threatening sanctions on Sudan for creating worst humanitarian disaster in the world); Agence France-Presse, UN Warns Sudan to End Darfur Atrocities, Abcnewsonline (Australian Broadcasting Corporation),July 31,2004,http://www.abc.net.au/news/newsitems/200407/ s1165951.htm (“Seven countries on the council, including China and Russia, two of the five permanent members that can veto any resolution, had opposed the explicit use of a sanctions threat.”).

4

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General ¶ 432 (2005), available at http://www.un.org/news/dh/sudan/ com_inq_darfur.pdf [hereinafter ICID Report].

5

Id. ¶¶ 513–15. Compare also id., at Executive Summary at 4 (“”[T]he Government of the Sudan has not pursued a policy of genocide.”), with id. ¶ 220 (“The Government armed forces, the PDF, the National Security and Intelligence Service, the Police and the Janjaweed have, since the beginning of the war, allegedly killed more than 70,000 persons, burned more than 3200 villages and displaced more than 2 million persons.”); id. ¶ 236 n.117 (“Most sources assess that 600 villages and hamlets [in Darfur] have been completely destroyed . . . .”); id. ¶ 278

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the errors in that approach, and argues that the situation in Sudan constitutes genocide in that the Sudanese military and allied militia have killed and wounded many members of identifiable non-Arab groups, by means of repeated and largescale destructive and discriminatory acts. Such acts satisfy the legal standard for genocide as set forth in the Convention on the Prevention and Punishment of the Crime of Genocide,6 as construed by the decisions of international criminal tribunals, and in the writings of its primary conceptual architect, Holocaust survivor Raphael Lemkin.7 The allies and trading partners of the Sudanese regime, who profit from energy and arms deals with the government, have a powerful economic incentive not to permit effective humanitarian intervention on behalf of genocide victims in southern or western Sudan. The proceeds of oil sales permit the Sudanese government to purchase, from the international arms industry, technologies designed to end life on a mass scale.8 Multinational corporations therefore play a role in arming a genocidal regime and perpetuating an apathetic international response. Hoping to turn this dynamic to their advantage, non-Arab Sudanese leaders and international human rights groups point to Sudan’s oil revenues as a potential source of leverage over a regime that disregards all considerations of international law. This Article argues that the international community should redouble its efforts to ensure that groups subjected to genocide in Sudan over the past forty years obtain compensation for their human and material losses, and enjoy their fair share of the country’s oil revenues. The levying of reparations obligations on genocidal governments promises to transcend some of the difficulties that genocide scholars have identified as inhibiting the effectiveness of international criminal prosecutions as deterrents to genocidal conduct. Specifically, while criminal prosecutions may only implicate a tiny percentage of a regime’s former officials, reparations may be levied on the state that organizes genocide and on corporations that knowingly provide

(“The Commission received many reports of random and/or targeted killing of children, sometimes in horrific circumstances such as by burning or mutilation.”); id. ¶ 279 (“In short, the Commission has collected very substantial material and testimony which tend to confirm, in the context of attacks on villages, the killing of thousands of civilians.”); id. ¶ 303 (detailing reports of collaboration between Sudanese government and “the Janjaweed [who] burnt and pillaged and committed other atrocities against the population. Many villages are said to have been attacked more than once, until they were completely destroyed.”); id. ¶ 634 (“[R]ape or other forms of sexual violence committed by the Janjaweed and Government soldiers in Darfur was widespread and systematic . . . .”). 6

Convention on the Prevention and Punishment of the Crime of Genocide art. 2, approved on Dec. 9, 1948, 78 U.N.T.S. 277, approved for signature Dec. 9, 1948 (entered into force Jan. 12, 1951) [hereinafter Genocide Convention]. The Genocide Convention was codified into U.S. law on Nov. 4, 1988. Pub. L. No. 100-606, 102 Stat. 3045 (current version at 18 U.S.C.A. §§ 1091–93).

7

See infra notes 20, 168, & accompanying text.

8

See discussion infra Part III.B.

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practical assistance to its crimes. Such reparations may be paid out of oil industry revenues in a manner reminiscent of the U.N. Compensation Commission that was established after the Persian Gulf War, or out of the assets of complicit corporations that do business in the United States.9 Part II of this Article describes the Sudanese government’s genocidal responses to ethnic and regional aspirations for self-determination in southern and western Sudan. Part III details the role that oil companies have played in motivating and financing genocide in Sudan. This Part draws upon several reports by Human Rights Watch, as well as evidence obtained in pretrial discovery in the case of Presbyterian Church of Sudan v. Talisman Energy, Inc. and the Republic of the Sudan.10 Part IV argues that, because Sudan is extremely unlikely to satisfy its obligations under international law to compensate the victims of its genocidal campaigns against ethnic and religious minorities, the U.N. Security Council and the U.S. federal courts should act in its place. The Second Circuit’s recent opinion in Khulumani v. Barclay National Bank Ltd.,11 provides an appropriate framework for allowing victims of genocide in Sudan to obtain compensation under U.S. law from oil companies that aided and abetted Sudan’s massacres of civilians. Such reparations, whether administered by the U.N. or by U.S. federal courts, may help mitigate the losses from the destruction of thousands of Sudanese villages and the murder of hundreds of thousands of Sudanese civilians, and deter Sudan and other states from seizing valuable property by means of widespread massacres. II. GENOCIDE IN SUDAN A. The Historical Context Sudan stretches across a territory nearly as vast as all of Western Europe.12 As the largest country in Africa by land area, it is made up of a number of formerly independent countries and tribal areas that were eventually incorporated into nine federal states, some nearly as large as France.13 Among those countries were the

9

See generally infra notes 298–99, 302, & accompanying text.

10

No. 01 CV 9882 (DLC) (S.D.N.Y. class action complaint filed Nov. 8, 2001, second amended class action complaint filed Aug. 18, 2003), 2003 WL 25461349, available at http://www. bergermontague.com/pdfs/SecondAmended ClassActionComplaint.pdf. See Mark Hamblett, Alien Tort Action Survives Concerns of U.S., Canada, N.Y.L.J., Sept. 2, 2005, available at http:// www.law.com/jsp/article.jsp?id=1125527682979.

11

504 F.3d 254 (2d Cir. 2007) (per curiam) (holding that oil corporations that aid and abet violations of customary international law (CIL) may be sued for damages under U.S. law, provided that they willingly supplied the means for a government to violate CIL norms).

12

See Safia Safwat, Sudan, in 1 Yearbook of Islamic and Middle Eastern Law 237, 237 (Eugene Cotran & Chibli Mallat, eds., 1994).

13

See id. at 237; Eric Hooglund, Government and Politics: Regional and Local Administration, in Sudan: A Country Study (Helen Chapin Metz ed., 1991), available at http://lcweb2.loc. gov/frd/cs/sdtoc.html.

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independent sultanates of Darfur, the home of the Fur people, and of Sinnar, where the bulk of the Dinka people lived.14 Sudan is composed of a number of distinct tribes; long before the recent controversies, observers recognized that many of these tribes were Arab and claimed descent from the person or the tribe of the Prophet Muhammad, while others were indigenous Africans with no Arab heritage.15 At the time of independence in the late 1950s, about two-thirds of the population of Sudan were indigenous African, while about one-third were Arab.16 By 1990, the Arab population, concentrated in the North, had grown to nearly forty percent of the total population, with indigenous Africans constituting most of the remainder.17 About seventy percent of the population identified themselves as Sunni Muslim, while five percent were Christian and twenty percent practiced indigenous African religions.18 B. Genocide in Southern Sudan The Genocide Convention defines genocide as any of the following acts committed against members of a national, religious, or ethnic group with the intent to destroy that group in whole or in part: killing members of the group, causing serious bodily or mental harm to them, imposing unsustainable conditions of life upon them, preventing births to them, or stealing their children.19 Prior to the drafting of the Genocide Convention, the Nuremberg tribunal and its adviser Raphael Lemkin coined the term “genocide” to refer to the attempted extermination of national, racial, or religious groups.20 14

See M.W. Daly, Darfur’s Sorrow: A History of Destruction and Genocide xix, 2 (2007); Stephanie Beswick, Sudan’s Blood Memory: The Legacy of War, Ethnicity and Slavery in South Sudan 17–20 (2004); Sudan: The Escalating Crisis in Darfur, U.N. Integrated Regional Information Network (IRIN), Dec. 31, 2003, available at http:// www.irinnews.org/report.aspx?reportid=47856 [hereinafter The Escalating Crisis in Darfur].

15

See, e.g., Sir Charles Wilson, On the Native Tribes of the Egyptian Sudan, in Report of the Fifty-Sixth Meeting of the British Association for the Advancement of Science 833–34 (1887). Arab historians recorded the immigration of Arabs to present-day Sudan and their conquest of the indigenous Nuba and Dinka (whom they called Zing) peoples. See 2 Harold Alfred Macmichael, A History of the Arabs in the Sudan 11–15 (Cambridge Univ. Press 1922).

16

See Abdel Salam Sidahmed & Alsir Sidahmed, Sudan (2005).

17

Sudan, in 5 Africana: The Encyclopedia of the African & African American Experience 82 (2d ed. 1999).

18

Id.

19

See Genocide Convention, supra note 6, at art. 2, 78 U.N.T.S. at 279–80.

20

See 1 Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945–10 October 1946, at 43–44 (1947), quoted in Elizabeth Borgward, Re-examining Nuremberg as a New Deal Institution: Politics, Culture and the Limits of Law in Generating Human Rights Norms, 23 Berkeley J. Int’l L. 401, 455 n.250 (2005) (“[The defendants] conducted deliberate and systematic genocide, viz., the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to

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Intermittently since the early 1960s, a civil war has raged in Sudan between Arab northerners and indigenous African southerners.21 Upon independence of Sudan from Britain in the late 1950s, the country was governed and identified as an “Arab state,” with discrimination and “internal colonialism” the fate of the South.22 The southern Sudanese mounted a secessionist movement supported by Ethiopia, Uganda, Zaïre, and Israel, and charged the government with genocide as a million people died in the war and ensuing famine.23 In 1972, President Gaafar al-Nimeiry, who came to power in a Soviet-backed coup, defused the southern crisis for a time by granting autonomy to the region.24 However, he largely abandoned more than 100,000 Darfurians, leaving them to die of famine starting in 1984.25 President al-Nimeiry lost power in a 1985 coup, following instability precipitated by southern Sudanese opposition to the imposition of Islamic law on Christian areas, and steep hikes in food and fuel prices under an austerity program recommended by the United States and the International Monetary Fund.26 Starting in 1983, the Sudan People’s Liberation Army (SPLA), led by John Garang de Mabior, a former Sudanese army colonel of Dinka ancestry, mounted a war of resistance to the Sudanese government’s policies of imposing Islamic law on Christians and second-class citizenship on non-Arabs.27 In response, the government “mobilized militias” of Arab tribesmen to “massacre[ ] tens ofthousands of Dinka villagers [and] create[ ] a uniquely horrible famine in which camps of

destroy particular races and classes of people and national, racial, or religious groups, particularly Jews, Poles, and Gypsies and others.”). See also Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation - Cnalysis of Government - Vroposals for Redress 79 (1943), available at http://www.preventgenocide.org/lemkin/AxisRule1944-1.htm. Lemkin defines genocide: Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups[.]

Id. 21

See Alexis Heraclides, Janus or Sisyphus? The Southern Problem of the Sudan, 25 J. of Modern African Study. 213, 213–15 (1987).

22

See id. at 215–17.

23

See id. at 213, 221.

24

See Judith Miller, Fearful City in Southern Sudan Expects Rebel Attack, N.Y. Times, Feb. 1, 1985, at A9; Judith Miller, 15-Year Rule Ends; Overthrow, With Nimeiry Away on Trip, Follows Increasing Unrest, N.Y. Times, Apr. 7, 1985, at A1.

25

See Daly, supra note 14, at 3, 227–34.

26

See id. at 227; Miller, 15-Year Rule Ends, supra note 24, at A1.

27

See Heraclides, supra note 21, at 228–29.

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displaced people were deliberately starved to death en masse.”28 The militias massacred 20,000 Dinka people in the province of Bahr el Ghazal, enslaved 50,000 young Dinka girls, and caused the deaths, by starvation or other means, of 40,000 Dinka children fleeing to Ethiopia as refugees.29 In 1987, Arab mobs slaughtered over a thousand Dinka civilians in a single incident near a railway station.30 The government also bombed villages that had been “liberated” by the SPLA, using Soviet-designed MiG fighter-bombers.31 By 1988, Sudan was spending threequarters of a billion dollars a year on the war, and had lost 300,000 refugees to just one of its neighboring countries, recently famine-stricken Ethiopia.32 War and famine in Sudan itself placed between five and six million at risk for starvation.33 After a coup in 1989, Sudan’s new President, Omar Hassan al-Bashir, suspended the country’s constitution34 and concentrated “all effective political power . . . in the hands of [the] President.”35 President al-Bashir allowed the adoption of a new constitution in 1998, which imposed a duty upon every citizen to “defend the country andrespond to the Jihad call.”36 The new constitution also granted authority to the government to raise a “volunteer Popular Defense Force from among the Sudanese people for national defense, . . . or to assist any regular forces.”37 The government has since deployed the Popular Defense Force (PDF) as a weapon of “holy war.”38 The PDF and Murahileen Arab militias have operated as pro-government

28

Alex de Waal, Tragedy in Darfur, Boston Review, Oct./Nov. 2004, at 29.5, available at http://www.bostonreview.net/BR29.5/dewaal.html [hereinafter Tragedy in Darfur].

29

Eric Marsden, Charities ‘Kept Quiet’ on Scale of Sudan Famine, The Times (U.K.), Sept. 4, 1988.

30

Daly, supra note 14, at 239; Roger P. Winter, In Sudan, Both Sides Use Food as a Weapon, Wash. Post, Nov. 29, 1988, at A25.

31

See Sudan - Air Forces, Flight Int’l, Dec. 5, 1990; Julian Ozanne, The Creeping Paralysis of Sudan, Fin. Times (U.K.), May 8, 1989, at I-21.

32

See Editorial, Sudan, Drowning in Troubles, N.Y. Times, Aug. 25, 1988, at A26.

33

See Famine Threatens Huge Areas of Africa, St. Louis Postdispatch, Dec. 23, 1990, at 5B. See also News Summary, N.Y. Times, Dec. 19, 1990, at A2.

34

See CIA, Sudan, in The World Factbook (2006), available at https://www.cia.gov/cia/publications/factbook/print/su.html.

35

US Dep’t of State, Bureau of African Affairs, Background note: Sudan (Nov. 2006), available at http://www.state.gov/r/pa/ei/bgn/5424.htm; see also S. Res. 94.IS, 103d Cong.

36

Const. of the Rep. of Sudan, art. 35(1)(b) (under the title “Public Duties (and their Supervision)”).

37

Id. at art. 125.

38

Human Rights Watch, Famine in Sudan, 1998: The Human Rights Causes, The Popular Defense Forces and the University of Bahr El Ghazal (Feb. 1999), http://www.hrw.org/ reports/1999/sudan/SUDAWEB2-20.htm.

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forces committing genocide, crimes against humanity, war crimes, and the systematic enslavement and rape of civilians.39 While the Sudanese constitution gave lip service to religious freedom,40 it made Islam “the state religion” and declared “that Islam must inspire the country’s laws, institutions, and policies.”41 In the decade after the new constitution was adopted, the government banned Christian speech, bulldozed churches, and fired 20,000 non-Muslims and women from federal jobs.42 The new constitution purported to guarantee an independent judiciary and parliamentary democracy; however, these provisions were undermined between 1995 and 2005 as the government “manipulated and politicized” the judiciary, and dismissed many independent judges.43 Officials placed a moratorium on appointing non-Arab judges after 1989, and the judiciary currently regards atrocities by the government and its allied paramilitaries as minor affairs.44

39

See Prosecutor’s Application under Article 58 (7), Situation in Darfur, the Sudan ICC-02/05-56, at 4–5, ¶ 68 (Feb. 27, 2007), available at http://www.icc-cpi.int/library/cases/ ICC-02-05-56_English.pdf; see also J. Millard Burr & Robert O. Collins, Requiem for the Sudan: War, Drought, and Disaster Relief on the Nile 6, 11, 18–19, 29–34, 41, 73–75, 83–90 (1995) (describing actions before the 1998 coup).

40

See Const. of the Rep. of Sudan, art. 1 (“The State of Sudan is a country of racial and cultural harmony and religious tolerance.”), art. 17 (calling for “respect for the basic rights, freedoms, duties and religious freedom for all people”), art. 21 (“All persons are equal before the law. Sudanese are equal in the rights and duties of public life without discrimination based on race, sex or religion.”), art. 24 (“Everyone has the right to freedom of conscience and religion and the right to manifest and disseminate his religion or belief in teaching, practice or observance. No one shall be coerced to profess a faith in which he does not believe or perform rituals or worship that he does not voluntarily accept.”), art. 27 (“Every sect or group of citizens have the right to keep their particular culture, language or religion . . . .”).

41

U.S. Dep’t of State, Annual Report on Int’l Religious Freedom (1999), available at http://www.state.gov/www/global/human_rights/irf/irf_rpt/ 1999/irf_sudan99.html [hereinafter Int’l Religious Freedom Report].

42

See id.; U.S. Immigration and Naturalization Service (INS), Country Reports: Sudan, Human Rights Conditions (1993), available at http://www1.umn.edu/humanrts/ins/sudan93.pdf. [hereinafter INS: Sudan]; U.N. Econ. & Soc. Council, Comm. on Human Rights, Civil and Political Rights, Including the Question of Freedom of Expression, Addendum: Visit to the Sudan, ¶¶ 95–102, 136, 151, U.N. Doc. E/CN.4/2000/63/Add.1 (March 3, 2000) (submitted by Abid Hussain), available at http://daccessdds.un.org/doc/UNOC/GEN/G00/113/78/PDF/ G0011378.pdf?OpenElement.

43

Report of The International Commission of Inquiry on Darfur to the United Nations Secretary-General ¶ 432 (2005), available at http://www.un.org/news/dh/sudan/ com_inq_darfur.pdf [hereinafter ICID Report].

44

See, e.g., Elizabeth Rubin, If Not Peace, Then Justice, N.Y. Times Magazine, Apr. 2, 2006, at 6–42 (noting the lack of jurisdiction of the I.C.C. if the country’s courts are functioning and the fact that this was a case before the I.C.C.); Human Rights Watch, Entrenching Impunity: Government Responsibility for International Crimes in Darfur 55–8

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In the 1990s, the Nuba people of central Sudan began to suffer the brunt of the government’s war of extermination against indigenous peoples.45 There were one to two million Nuba people living in Sudan in 1989.46 The Sudanese government “formally declared a Holy War ( Jihad) in the Nuba Mountains” in 1992.47 It launched a campaign of “wholesale murder, abduction, rape, family separation, forced religious conversion, and the forced relocation of tens of thousands of Nuba” residents, which one non-governmental organization (NGO) summarized as an attempt by “the Khartoum government . . . to extirpate the Nuba peoples themselves.”48 In order to “Arabize [ ]” Sudan, the al-Bashir regime pursued “a tenyear campaign of forced Islamization, pillage, rape, and murder against the people of the Nuba mountains in central Sudan, where allies of the regime covet scarce arable land . . . .”49 Pro-government militias destroyed crops, farmlands, and shops, triggering widespread famine.50 A Nuba leader working with the SPLA declared that “ethnic cleansing” was replacing the Nuba people with Arabs. Other indigenous peoples also suffered systematic attacks. The largest of these groups is the Dinka people, with two million members in 1989, more than any other ethnic group in southern Sudan.51 The Dinka lost hundreds of villages to government attacks between 1994 and 1998.52 Government trains transported (Dec. 2005), available at http://hrw.org/reports/2005/darfur1205/darfur1205text.pdf [hereinafter Entrenching Impunity]. Stating: The Sudanese government has failed to investigate, let alone prosecute, local, regional, and national officials who planned, coordinated, and implemented ‘ethnic cleansing’ or were otherwise implicated in war crimes and crimes against humanity. . . . Despite numerous, consistent, and credible reports documenting the existence of patterns of rape and sexual violence that may amount to war crimes or crimes against humanity, the Sudanese government consistently refuses to . . . prosecut[e] the perpetrators. . . .

Id. at 56, 59–60. 45

See Andrew Natsios, Report on Sudan (May 31, 2002), available at http://fpc.state.gov/ fpc/10631.htm (referring to the “indigenous Nuba people”); Burr, Quantifying Genocide, supra note 39, at 27 (“The Nuba people comprise a substantial part of the indigenous inhabitants of Sudan; they were driven out of their traditional homelands into the mountains by “centuries of attacks by their Arab neighbors.”) (footnote omitted). Some Nuba are Christian, some Muslim, and some practice indigenous African religions. See id. at 24.

46

See Burr, Quantifying Genocide, supra note 39, at 27.

47

Id. at 31.

48

Id.

49

Gail M. Gerhart, Africa, 76 Foreign Aff. 147, 147–48 (May/June 1997). See also, e.g., Jane Perlez, Sudan Again Bombs Civilians in Rebel Areas, N.Y. Times, Nov. 26, 1990, at A3; James C. McKinley, Jr., Sudan Hinders U.N. Aid as South Faces Famine, N.Y. Times, Mar. 18, 1998, at A1.

50

Burr, Quantifying Genocide, supra note 39, at 29–30 (describing events from 1991).

51

Id. at 72.

52

Id.

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Arab militias such as the Murahileen to the Dinka region of Bahr al-Ghazal, throughwhich they rampaged, “looting, pillaging, and raping as they passed through.”53 The militias “burned many Dinka villages, captured hundreds of women and children as slaves, stole many thousands of heads of cattle, and caused widespread devastation.”54 Aided by Sudanese military intelligence, they “massacred tens of thousands of Dinka villagers [and] created a uniquely horrible famine in which camps of displaced people were deliberately starved to death en masse.”55 Human Rights Watch reported that the widespread famine in Bahr al-Ghazal in 1998 threatened one million people, mostly Dinka, with starvation.56 As many as 100,000 Dinka people died in the 1998 famine alone.57 The government pursued a “counterinsurgency plan” against both the Dinka and Nuba peoples.58 These campaigns involved the depopulation of civilian areas of central and southern Sudan as a means of depriving the rebels of a base of support, and transferring wealth to ethnic Arab militias.59 They also served forcibly to recruit thousands of southern Sudanese children into ethnic Arab militias.60 Additionally, attacks by Arab militias claimed “at least two thousand members of the Masalit tribe.”61 In the 1990s, the Masalit complained that nomadic Arabs were driving them from their lands.62

53

Id. at 75 (citing By Practical Demonstration, Regime Admits the SPLA is Alive and Well, Sudan, Democratic-Gazette (U.K.), Jan. 1995, at 5).

54

Id. at 86. See also ICID Report, supra note 4, ¶ 56 n.10 (“In March 1987 . . . murahilin and Arab townspeople killed 1,000 destitute Dinka displaced persons in the largely Arab town of al-Da’ien.”) (quoting Ann Mosely Lesch, The Sudan: Contested National Identities (1998)).

55

Tragedy in Darfur, supra note 28.

56

See generally Human Rights Watch, Famine in Sudan, supra note 38, available at http://www. hrw.org/reports/1999/sudan/index.htm#TopOfPage; See also Washington Office on Africa, Sudan; Slavery, War and Peace in Sudan, Africa News, Nov. 29, 1999; see Herve Creusvaux, Vincent Brown, Rosamund Lewis, Karine Coudert, & Sophie Baquet, Research Letter: Famine in Southern Sudan, 354 Lancet 832 (Sept. 4, 1999); Tony Freemantle, The Hunger Weapon; Depriving Civilians of Food a Vicious Tool of Modern War, Houston Chron., Aug. 29, 1999, at A1; Sudan; Recurring Famine Blamed on Sudan’s Devastating Conflict, Afr. News, Apr. 9, 1999.

57

See Øystein H. Rolandsen, Guerilla Government: Political Changes in the Southern Sudan in the 1990S 128 n.21 (2005).DAN IN THE 1990S 128 n.21 (2005).

58

See Human Rights Watch, Famine In Sudan, supra note 38, at http://www.hrw.org/reports/1999/ sudan/index.htm/.

59

Id.

60

Id.

61

Nicholas D. Kristof, Genocide in Slow Motion, 53 N.Y. Rev. Books (2006); available at http:// www.nybooks.com/articles/18674.

62

See The Escalating Crisis in Darfur, supra note 14.

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By 1992, the government and its militia allies had “killed at least 500,000 civilian non-combatants . . . displaced one-third of the south’s civilian population,”63 and burned down “scores of villages” in the Nuba Mountains.64 In 1993, the U.S. Committee for Refugees reported that at least 1.3 million southern Sudanese had died since the early 1980s “as a result of war-related causes and government neglect.”65 The U.S. Committee for Refugees issued a new study in 1998 estimating that about “600,000 additional people have perished in southern and central Sudan since 1993, raising the toll to an astounding 1.9 million deaths.”66 In the mid-1990s, the Sudanese government bombed civilians from the air in violation of international humanitarian law67 and tolerated the abduction and enslavement of ethnic and religious minorities, practices which the U.N. General Assembly in 1995 called upon the government to “cease immediately” as required by international law.68 Hundreds of thousands of children of ethnic or religious minorities were among those abducted in violation of international law from southern Sudan by Sudanese armed forces for military training and religious indoctrination in secret camps.69 Kidnapped children not sent to the camps were distributed as slaves to Arabs.70 As the U.N. documented in 1999: Thousands, perhaps millions of southern children have been the main victims of the brutal war conducted against the civilian population by government and rebel troops alike. Children have died in droves of famine and many are still suffering from malnutrition. In Bahr-el-Ghazal an unknown number of children have 63

INS: Sudan, supra note 42.

64

Quantifying Genocide, supra note 39, at 28–29.

65

Press Release, U.S. Committee for Refugees, Sudan, Testimony of J. Millard Burr, Consultant, U.S. Committee for Refugees on The Crisis Against Humanity in Sudan (May 27, 1999), available at http://www.reliefweb.int/rw/rwb.nsf/0/8190a73888f2c452c125677f005602fd? OpenDocument (the organization is now called the “U.S. Committee for Refugees and Immigrants”).

66

Id. Accord Scott Strauss, Darfur and the Genocide Debate, 84 Foreign Aff. 123, 125 (2005) (two million dead in conflict in southern Sudan since 1983).

67

Situation of Human Rights in the Sudan, G.A. Res. 50/197, U.N. GAOR, 50th Sess., U.N. Doc. A/RES/50/197 (Mar. 11, 1996), available at http://www.un.org/documents/ga/res/50/ ares50-197.htm.

68

Id. (citing to the International Covenants on Human Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child, the Slavery Convention, as amended, and the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery).

69

See U.N. Comm. on Human Rights, Situation of Human Rights in the Sudan, ¶ 99, U.N. Doc. E/CN.4/1994/48 (Feb. 1, 1994) (prepared by Gáspár Biro).

70

See generally The Secretary-General, Report of the Secretary- General on the Situation of Human Rights in the Sudan, delivered to the General Assembly, U.N. Doc. A/50/569 (Oct. 16, 1995) (report of Gáspár Biro, special rapporteur of the Comm. on Human Rights), available at http://www.un.org/documents/ga/docs/50/plenary/a50-569.htm. See also Sudan; Slavery, War and Peace in Sudan, Afr. News, Nov. 29, 1999.

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been abducted during raids by Murahaleen militia . . . . In the Nuba Mountains, thousands of children are allegedly held in the so-called peace villages, where they are subjected to abuse.71

Sudan was one of only about five countries in the world to cause an outflow of at least 500,000 refugees in not only 1992–1997 but also 1997–2001.72 The U.S. State Department concluded in 1999 that Sudanese slavery had “a significant religious aspect since the victims are largely Christians and practitioners of traditional indigenous religions.”73 It also stated in 2000 that slavery in Sudan had “a pronounced racial aspect, as the victims are exclusively black southerners and members of indigenous tribes of the Nuba mountains . . . .”74 The “government condone[d] slavery, by allowing government troops from the North to buy, sell, and torture rebels. Estimates of those held in captivity range[d] from 14,000 to 100,000. . . .”75 In 2000, the Vice President of Sudan renewed the call for a holy war against the people of southern Sudan, and the government carried out this policy with extreme brutality. Its air force bombed many civilian targets, creating a serious international human rights crisis.76 By one estimate, the government bombed civilian areas 167 times in 2000 alone.77 Human rights leaders and aid workers reported a government policy of “destroying hospitals, schools, and feeding centers.”78 In the upper Nile region, “militias supported by military intelligence and aerial bombardment attacked with unremitting brutality. Scorched earth, massacre, pillage and rape were the norm . . . .”79 By 2001, the NGO Christian Aid reported that near “the oil fields of Sudan, civilians are being killed and raped, their villages burnt to the ground.”80 Other NGOs reported that, as of 2002, more than two million people had died in Sudan from the war and related starvation, and another four

71

U.N. Econ. & Soc. Council, Comm. on Human Rights, Situation of Human Rights in Sudan, Addendum, E/CN.4/1999/38/Add.1, ¶ 98 (May 17, 1999), available at http://ap.ohchr.org/ documents/alldocs.aspx?doc_id=1460.

72

U.N. High Commissioner for Refugees, Statistical Yearbook 2001 158–59 (maps 8–9), available at http://www.unhcr.org/static/statistical_yearbook/2001/maps08.pdf; http:// www.unhcr.org/static/statistical_yearbook/2001/maps09.pdf.

73

U.S. Dep’t of State, Country Reports on Human Rights Practices-Acti (Feb. 23, 2001), available at http://www.state.gov/g/drl/rls/hrrpt/2000/af/822.htm.

74

Id.

75

Id.

76

Ted Dagne, Issue Brief For Congress, Sudan: Humanitarian Crisis, Peace Talks, Terrorism, and U.S. Policy, at CRS-12 ( Jan. 23, 2003), available at http://fpc.state.gov/documents/ organization/17342.pdf.

77

Id.

78

Id.

79

Kristof, supra note 61.

80

Dagne, supra note 76, at CRS-10.

118

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million were left homeless.81 In 2002, the Congress and the President of the United States concluded that the actions of the Sudanese government in the south constituted genocide under the Genocide Convention.82 C. Genocide Spreads to the Darfur Region By early 2003, the Sudanese government had agreed to a peace deal with the southern Sudanese rebels.83 The deal conceded that the southern Sudanese had a right of self-determination, and that the relationship between religion and the state had to change.84 It was claimed as a victory by U.S. officials, and widely viewed as an outcome of U.S. pressure.85 Around the same time, the Sudan Liberation Army, which was modeled on the secular, southern SPLA, and likewise emphasized indigenous peoples’ right of self-determination within Sudan,86 began to strike government targets, sacking an air base in April 2003.87 President al-Bashir’s government retaliated by organizing local militias composed of nomadic Arab tribes into a counterinsurgency army, part of the PDF.88 The racist agenda of these counterinsurgency forces soon became clear, as victims 81

Online News Hour, Glimmer of Peace in Sudan, PBS, Aug. 28, 2002), available at http://www.pbs. org/newshour/bb/africa/julydec02/sudan_8-28.html [hereinafter Glimmer of Peace in Sudan].

82

Sudan Peace Act, Pub. L. No. 107–245, 2002 H.R. 5531 § 2(10).

83

See Government of the Republic of Sudan and the Sudan People’s Liberation Movement/Army, Landmark Sudanese Peace Agreement: Sudan Government Concludes with the SPLM/A “Machakos Protocol” and Issues a Joint Communiqué, Reliefweb ( July 20, 2002), available at http://www.reliefweb.int/rw/RWB.NSF/db900SID/MHII6227SC?OpenDocument.

84

Id.

85

See, e.g., Jendayi E. Frazer, Assistant Secretary of State for African Affairs, Consolidating Peace in Sudan ( June 5, 2006), http://sudan.usembassy.gov/consolidating_peace_in_sudan.html (“President Bush has made the push for peace throughout Sudan a centerpiece of his Africa agenda. . . . U.S. government commitment and leadership helped to resolve the North-South element of the Sudan conflict. . . .”); Michael E. Ranneberger, Principal Deputy Assistant Secretary of State for African Affairs, Sudan: Prospects for Peace (Dec. 9, 2004), http://www. state.gov/p/af/rls/rm/39751.htm. Ranneberger stated: With our strong support, in large measure due to the leadership of former Special Envoy Danforth and our current Senior Representative Charles Snyder, enormous progress has been made toward a north-south accord. He laid the basis for progress through his efforts to broker a ceasefire. . . . The six protocols signed by the Government of Sudan and the Sudan People’s Liberation Movement, taken together, constitute resolution of all the major substantive issues. The Machakos Protocol addresses the issue of religion and the state, and the right of the south to a referendum on secession.

Id. See also Sudan Leaders Try to Carve Deal, BBC News.Com, Dec. 6, 2003, http://news.bbc. co.uk/2/hi/africa/3296305.stm (describing “U.S. pressure”). 86

See Daly, supra note 14, at 280.

87

See Strauss, supra note 66, at 124.

88

See Rubin, supra note 44, at 6. See also International Crisis Group, Darfur Rising: Sudan’s New Crisis, Africa Report No. 76, at 16 (Mar. 25, 2004), available at http://www. crisisgroup.org/home/index.cfm?l=1&id=2550.

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reported that their attackers repeatedly declared an intention to “exterminate” the “blacks,” who were labeled “slaves.”89 The pro-government tribal militias travel on horseback; their civilian victims therefore call them “Janjaweed” or devils (jinn) on horses ( jawad).90 The Janjaweed first emerged in the late 1980s in connection with an “Arab Alliance (or Gathering),” which made a “racist” appeal for an Arab tribal “Belt” across Darfur and mounted a “race war” against the Fur.91 Its campaign of massacres against the Fur and Masalit began in the 1990s and early 2000s, with twenty-three people killed on a single day and 125 on another.92 Reports from an investigative team sent to Darfur in early 2004 by Physicians for Human Rights, and led by a scholar from the Harvard School of Public Health, described a repeat of the government’s counterinsurgency strategy in southern and central Sudan. Specifically, the Sudanese government would bomb or “buzz” a village at about dawn, after which the army and Janjaweed militia would enter the village on vehicles or horseback, massacre the men defending the village, rape the women, steal the cattle, burn the homes, and spoil the wells and irrigation works, thus making the village uninhabitable.93 By mid-2004, over 1.3 million residents of Darfur had been displaced from their homes, and about 50,000 people had died.94 As of July 2004, the U.S. House of Representatives, the Committee on Conscience of the U.S. Holocaust Memorial Museum, the Congressional Black Caucus, and several African-American civil rights groups had all warned of genocide in Darfur.95 89

Eric Reeves, Editorial, Unnoticed Genocide, Wash. Post, Feb. 25, 2004, at A25. See also Daly, supra note 14, at 3–4, 246–47, 283–85, 296–305; Alex De Waal, Who Are the Darfurians? Arab and African Identities, Violence and External Engagement, 104 Afr. Aff. 181, 199 (2006); Edmund Sanders, Battle For Darfur; Sudan War Spills Into Chad; Despite Peace Efforts in Darfur, a Key Rebel Force is Regrouping Across the Border, Recruiting Among Refugees,, L.A. Times, June 19, 2006, at A1; Human Rights Watch, Darfur Destroyed: Ethnic Cleansing by Government and Militia Forces in Western Sudan (2004), available at http://www.hrw. org/reports/2004/sudan0504/ (follow “Abuses by the Government-Janjaweed in West Darfur” hyperlink); Human Rights Watch, Darfur in Flames: Atrocities in Western Sudan (Apr. 2004), available at http://www.hrw.org/reports/2004/sudan0404/3.htm.

90

Rubin, supra note 44, at 6. See also Burr & Collins, supra note 89, at 286–87, 292–93. An alternative etymology would derive the term “Janjaweed” from the words for outlaws or guns (Jan) on horses, rather than for the words for a devil or evil spirit (Jinn) on horseback. See Human Rights Watch, Darfur in Flames, supra note 89.

91

See Daly, supra note 14, at 243–47, 262–67.

92

See id. at 263, 269; Amnesty International, Sudan, Darfur: “Too Many People Killed for No Reason,” AI Index: AFR 54/008/2004 (Feb. 3, 2004), available at http://web.amnesty.org/ library/index/ENGAFR540082004.

93

Jennifer Leaning, Diagnosing Genocide – The Case of Darfur, 351; 8 New Eng. J. Med. 735, 735–36 (2004).

94

Id. at 735; Emily Wax, Frist Calls Darfur Killing ‘Genocide’ Senate Leader Tours a Camp in Chad, Cites Sudan’s Deadline to Stop Militia, Wash. Post Foreign Service, Aug. 7, 2004, at A14 (“The militia, known as the Janjaweed, has committed atrocities across Darfur that have displaced close to 1.5 million darker-skinned African villagers and left as many as 50,000 dead, according to human rights groups and aid workers.”).

95

See Strauss, supra note 66, at 128.

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D. The Failure of the International Community to Respond to the Genocide in Sudan Despite the growing awareness that genocide in southern Sudan and Darfur had claimed over 2 million lives and displaced over 1.3 million Darfur residents and 4 million other Sudanese from their homes, U.N. Secretary-General Kofi Annan stated in July 2004, “I can’t at this stage call it genocide.”96 He was not even willing to callthe situation “ethnic cleansing,” even though he acknowledged “massive violations of international humanitarian law,” and that “quite a lot of . . . killing” was going on.97 This was nearly a month after the U.N. Security Council had expressed “concern” about “reports of large-scale violations of human rights and of international humanitarian law in Darfur, including indiscriminate attacks on civilians, sexual violence,” and other ethnic-based “acts of violence.”98 On September 9, 2004, U.S. Secretary of State Colin Powell testified before the U.S. Senate Foreign Relations Committee that genocide had occurred within the meaning of the Genocide Convention, and that it “may still be occurring.”99 As evidence, he cited a series of more than 1,000 interviews conducted by a State Department team and “other sources,” which showed that the Sudanese military and Janjaweed militia had systematically killed members of non-Arab groups by “burning, shelling or bombing” them; subjected members of these groups to a “consistent and widespread pattern” of rapes and physical assaults; destroyed “villages, foodstuffs, and other means of survival” belonging to these groups; and blocked these groups from receiving humanitarian aid such as food, water, and medicine to such a degree that many deaths resulted.100 A little more than a week later, the U.N. Security Council met to discuss Sudan’s refusal to prevent violations of international humanitarian law and other atrocities in Darfur. The Council declined to determine whether genocide had occurred in Sudan, but requested that the Secretary-General “establish an international commission of inquiry” to determine whether “acts of genocide” had occurred, and to identify their perpetrators.101

96

Kofi Annan, U.N. Secretary-General, Secretary-General’s press encounter upon arrival at UNHQ ( June 17, 2004), available at http://www.un.org/apps/sg/offthecuff.asp?nid=596.

97

Id.

98

U.N. SCOR, 59th Sess. 4878th mtg. U.N. Doc. S/PV.4978 (25 May 2004), available at http:// www.un.org/Depts/dhl/resguide/scact2004.htm.

99

Colin L. Powell, Written Remarks of Secretary of State to Senate Foreign Relations Committee on The Crisis in Darfur (Sept. 9, 2004), available at http://www.whitehouse.gov/interactive/ sudan_gen.html [hereinafter Colin L. Powell, Written Remarks on The Crisis in Darfur].

100

See id.

101

See S.C. Res. 1564 ¶¶ 7, 12, U.N. Doc S/RES/1564 (Nov. 19, 2004), available at http:// daccess-ods.un.org/TMP/314597.5.html.

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On January 25, 2005, the Commission of Inquiry on Darfur released its report. It found a “pattern of indiscriminate attacks on civilians in villages and communities” throughout Darfur beginning in 2001 and 2002 and escalating in 2003 and 2004.102 These attacks completely destroyed 600 villages and hamlets and partially destroyed 100 more.103 The massacres in Darfur are directed by President al-Bashir and the government of Sudan, according to the Commission of Inquiry.104 Janjaweed, the Commission noted, was a term used by victims unaware that their attackers were members of the Sudanese armed forces.105 To the victims, it is “a derogatory term that . . . clearly refers to ‘militias of Arab tribes on horseback or on camelback.”’106 But Janjaweed militia members typically were either part of the PDF or received “uniforms, weapons, ammunition and payments” from the PDF.107 The PDF receives its orders from army officers.108 The headquarters of the Janjaweed is also the headquarters of the government’s Border Intelligence Unit, situated in a town that saw enormous traffic in arms and supplies109 after President al-Bashir declared in 2003 that: “Our priority from now on is to eliminate the rebellion. . . . We will use the army, the police, the mujahedeen [holy warriors], the horsemen to get rid of the rebellion.”110 Since that declaration, the “Islamic regime in Khartoum” has waged “a campaign of genocide against the ‘infidels’ of Darfur.”111 The Commission concluded that there was also a pattern of rapes by Sudanese soldiers and Janjaweed throughout Darfur, and that the rapes were often multiple, accompanied by other physical violence, and characterized by derogatory racial epithets.112 The Commission confirmed that the PDF led several “attacks on

102

ICID Report, supra note 4, at ¶¶ 184, 238. See also id. ¶ 186.

103

See id. ¶ 236 n.117.

104

See id. ¶¶ 106–08, 108 n.31, 118, 408.

105

See id. ¶ 103–05.

106

Id. ¶ 511.

107

ICID Report, supra note 4, ¶ 109. See also Philip Sherwell, Janjaweed Vow to Fight Any Intervention by ‘Infidels’, The Daily Telegraph (U.K.), Aug. 15, 2004, available at http:// www.telegraph.co.uk/news/main.jhtml?xml=/news/2004/08/15/wsud15.xml (the Janjaweed used uniforms of the PDF and the police).

108

See ICID Report, supra note 4, at ¶ 112.

109

See Lydia Polgreen, Over Tea, Sheik Denies Stirring Darfur’s Torment, N.Y. Times, June 12, 2006, at A1.

110

ICID Report, supra note 4, ¶ 119 (quoting Sudanese President Says War Against Outlaws Is Government Priority, Associated Press, Dec. 31, 2003).

111

Niall Ferguson, Comment, Here’s a Challenge: Link the Al-Qaeda Bombs to Poverty and Global Warming, The Daily Telegraph (UK), July 10, 2005, available at http://www.telegraph. co.uk/opinion/main.jhtml?xml=/opinion/2005/07/10/do1003.xml.

112

See ICID Report, supra note 4, at ¶ 333.

122

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villages in which civilians were killed and rapes were committed.”113 Leaders of victims’ groups alleged a mass rape of 120 women in July 2003, and that “the Government and the Janjaweed have repeatedly abducted women and children;” the fact that “no Arab woman had been raped and no Arab village had been destroyed was evidence that the Government was specifically targeting African tribes.”114 Mass rapes and abductions by Janjaweed of young girls and older women of the Fur tribe occurred continuously from 2003 to 2004.115 Ultimately, the Commission found that genocide had not occurred in Darfur. The Commission was unable to persuade itself of the important element of genocidal intent because, among other reasons, in some villages “attacked and burned by both militias and Government forces the attackers refrained from exterminating the whole population that had not fled, but instead selectively killed groups of young men[.]”116 It also declined to find genocidal intent because the government forcibly expelled people from their homes but did not prevent humanitarian organizations from delivering food, water, or medicines in all instances.117 Finally, the Commission concluded that the government’s motivation of “counter-insurgency warfare” meant that no racial or ethnic genocide had taken place.118 The Sudanese government immediately “seized on” the Commission’s conclusions “to try to defuse pressure for sanctions and prosecutions against perpetrators of war crimes.”119 The international press has reported that the Commission’s failure to recognize the genocide in Darfur was “significant because genocide creates a special obligation on governments to act.”120 One qualified success of the international community after the issuance of the Commission of Inquiry’s report was the expansion of the African Union Mission in the Sudan (AMIS). This expansion occurred under the auspices of U.N. Security Council Resolution 1556121 and a series of peacekeeping communiqués issued by the African Union Peace and Security Council (AUPSC).122 In late 2004, the 113

Id. ¶ 104.

114

Id. ¶ 221.

115

See id. ¶¶ 243, 253, 333–55.

116

Id. at ¶ 513.

117

See id. ¶ 515.

118

See ICID Report, supra note 4, ¶ 518. See also id. at ¶¶ 3–4, 37, 54.

119

James Bone, 70,000 Dead and 1.6m Homeless, But the UN Says It’s Not Genocide, The Times (U.K.), Feb. 1, 2005, at 29.

120

See, e.g., id.

121

S/RES/1556 (2004).

122

Jeremy I. Levitt, The Peace and Security Council of the African Union and the United Nations Security. Council: The Case of Darfur, Sudan, in The Security Council and the use of Force: Theory and Reality: A need for change? 213, 239–45 (N.M. Blokker & N.J. Schrijver eds., 2005).

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AUPSC authorized an expansion of AMIS to include over 3,000 military personnel and civilian police.123 Despite that, AMIS was unable to prevent multiple attacks by Sudanese government forces and Janjaweed.124 Disarmament of the Janjaweed did not occur.125 The African Union expanded its AMIS force to 7,000 personnel by 2006, but tens of thousands more were needed to ensure peace and security in the area.126 Despite its inadequacies, AMIS may have been a limited success in that its absence might have contributed to even more widespread “mass killings of civilians and . . . serious crimes.”127 By September 2006, the death toll in Darfur had risen to about 450,000 people, and about 2.5 million people from Darfur had been expelled from their homes and lands.128 About 3,000 to 4,000 villages had been burned down or otherwise destroyed.129 A single massacre in September 2006 by Sudanese troops

123

See id. at 244.

124

See id. at 243–46; Sima Samar, Report of the Special Rapporteur on the Situation of Human Rights in the Sudan, U.N. Doc A/61/469, ¶ 49 (delivered to the General Assembly (Sept. 20, 2006) (noting that although AMIS had taken 128 weapons from the Janjaweed, “militia groups continue to operate with impunity throughout Darfur”).

125

See Samar, supra note 124, ¶ 49.

126

See Nicholas Leddy, United Nations Update, 13 Hum. Rts. Br. 59, 60 (2006) (arguing that many other governments said that at least 20,000 troops are needed).

127

Samar, supra note 128. But see Denis Sassou Nguesso, President of the Republic of Congo, Amnesty Int’l, Open Letter to the Chair of the Assembly of the African Union Regarding Peacekeeping in Darfur, AI Index Number: AFR 22/004/2006 (2006), available at http://web. amnesty.org/library/Index/ENGAFR220042006?open&of=ENG-2AF (stating that AMIS lacks the equipment, funding, mandate, and Sudanese compliance to prevent “major killings and displacement,” which increased in 2006 despite AMIS deployment to Darfur).

128

See Emily Wax, A Loss of Hope Inside Darfur Refugee Camps: Over Two Years, a Genocide Comes Into View, Wash. Post Foreign Service, Apr. 30, 2006, at A12; Craig Timberg, In Darfur, Terror From the Air, Wash. Post Foreign Service, Sept. 9, 2006, at A10; Roger Winter, Briefing on the Humanitarian Situation in Sudan ( July 29, 2004) (citing 1.2 million displaced persons and 30,000 people killed by July 2004), http://www.usaid.gov/press/speeches/2004/ sp040729.html; David Nabarro, Representative of the World Health Organization DirectorGeneral, Sudan: Mortality projections for Darfur (Oct 2004) (citing 70,000 dead and 1.8 million displaced in September 2004), http://www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/f035e 0d2e4a12d1949256f3100030846; Jeffrey Gettleman, Toll of Darfur Underreported, Study Declares, N.Y. Times, Sept. 15, 2006, at A8. Several U.S. Senators found in 2004 that “even a best-case scenario will likely result in the death of more than 320,000 people between April 1, 2004 and December 31, 2004.” Comprehensive Peace in Sudan Act, S. 2781, 108th Cong., § 3(13) (as introduced Sept. 9, 2004), available at http://www.govrecords.org/ s-2781-rfh-to-express-the-sense-of-congress-regarding.html.

129

See Press Release, City of Philadelphia, Philadelphia Divests from Sudan (Sept. 27, 2006), available at http://www.sudandivestment.org/docs/Philadelphia_press_release.pdf; see also Lydia Polgreen, 4 Months after DPA, Darfur Heads Toward Military Confrontration, Sudan Tribune, Sept. 1, 2006, available at http://www.sudantribune.com/spip.php?article17368; John Heffernan & David Tuller, Crisis in Africa: Ending the Genocide in Darfur, S.F. Chron.,

124

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and militia allies killed seventy-two people.130 The Sudanese government escalated the bombing of villages using Soviet-era aircraft and helicopter gunships.131 The Janjaweed, meanwhile, preyed on civilians expelled to camps for displaced persons, killing the men and raping the women; over 200 women from a single camp were raped by the Janjaweed in a little over a month.132 The Janjaweed repeatedly invaded neighboring Chad in 2006, expelling 60,000 Chadians from their homes.133 After a visit to Chad, an envoy described many of Eastern Chad’s ethnic African villages as aflame, and called it “an identical situation [to Darfur] with identical atrocities. . . .”134 In late February 2007, nearly two years after the Security Council referred the Darfur case to the International Criminal Court (ICC),135 the Office of the Prosecutor issued a “summons to appear” concerning Darfur, a document resembling and described in the press as an indictment.136 The summons charged Sudan’s Minister of State for the Interior and a member of the PDF with committing war crimes and crimes against humanity, but not genocide.137 As of this writing, Sudan has consistently refused to surrender the suspects.138 In late March 2007, President al-Bashir informed Saudi Arabia and other Arab nations that he would allow the U.N. to play a role in providing logistical support to African Union peacekeepers in Darfur.139 Throughout the rest of 2007, however, his government

Feb. 12, 2006, at E7, available at http://www.sfgate.com/cgibin/article.cgi?file=/chronicle/ archive/2006/02/12/EDGU9GJ2251.DTL. 130

See Craig Timberg, In Darfur’s Death Grip, Wash. Post, Sept. 6, 2006, at A01.

131

See id. at A20.

132

See Craig Timberg, For Darfur Women, Survival Means Leaving Camp, Risking Rape, Wash. Post Foreign Service, Sept. 16, 2006, at A12.

133

See Timberg, Terror in the Air, supra note 128, at A12.

134

Joe DeCapua, UNICEF Goodwill Ambassador Mia Farrow Calls for Peacekeeping Force in Chad, Darfur and CAR, Voice of am. News (Feb. 22, 2007), available at http://www.voanews.com/ english/Africa/2007-02-22-voa57.cfm.

135

See Stephanie Nieuwoudt, Al-Bashir Calls World’s Bluff on Darfur, Institute for War and Peace Reporting, Feb. 16, 2007, available at http://www.iwpr.net/?p=acr&s=f&o= 333337&apc_state=henpacr.

136

See Xan Rice, Sudanese Minister Indicted over Darfur, The Guardian (U.K.), Feb. 28, 2007, available at http://www.guardian.co.uk/sudan/story/0,,2022952,00.html.

137

See Prosecutor’s Application under Article 58 (7), Situation in Darfur, the Sudan, Pre-Trial Chamber I, ICC-02/05-56, at 6–23, 31–33 (Feb. 27, 2007), available at http://www.icc-cpi. int/library/cases/ICC-02-05-56_English.pdf.

138

See Sudan Has Failed to Cooperate With International Criminal Court, Prosecutor Says, U.N. News Centre (Dec. 5, 2007), http://www.un.org/apps/news/story.asp?NewsID= 24933&Cr=sudan&Cr1 [hereinafter Sudan Has Failed to Cooperate].

139

Warren Hoge, Arabs and U.N. Chief Press Sudan’s Leader to End Darfur Crisis, N.Y. Times, Mar. 29, 2007, at A5; Challis McDonough, Arab Leaders Discuss Regional Peace, Voice of America News (Mar. 28, 2007), available at http://www.voanews.com/english/

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imposed restrictions on the U.N.’s role that the top U.N. peacekeeping official described as ensuring that the U.N. force “will not make a difference . . . will not have the capability to defend itself, and . . . [will create a] risk of humiliation of the Security Council and the United Nations, and tragic failure for the people of Darfur.”140 As of this writing, about a third of the planned U.N. peacekeeping force had entered Darfur.141 In the meantime, the Sudan Air Force carried out a massacre of civilians in a village in North Darfur, killing twenty-six, including pregnant women.142 The Prosecutor of the ICC warned in June and December 2007 that “massive crimes continued, with rampant attacks on individuals for the purpose of destroying communities.”143 E. Correctly Applying the Genocide Convention to the Facts in Darfur Since 1948, only a handful of international tribunals have adjudicated alleged genocides, while a few national courts have struggled with the issue to varying degrees of success.144 Signatory states continued to prosecute officials for genocide, but these prosecutions were rare (likely under one conviction for every 100,000 victims).145 One key principle that these prosecutions have established is that killing members of a group in a campaign of ethnic cleansing constitutes genocide, as national courts in Brazil, Croatia, and Germany have determined.146 Another principle that emerges

2007-03-28-voa52.cfm; Andrew Hammond & Sue Pleming, Sudan Agrees to U.N. force But U.S. Plans New Sanctions, Reuters/The Scotsman (U.K.), Mar. 29, 2007, available at http:// news.scotsman.com/latest.cfm?id=493552007. 140

Warren Hoge, U.N. Official Criticizes Sudan for Resisting Peace Force in Darfur, N.Y. Times, Nov. 28, 2007, at A9.

141

See Opheera McDoom, Darfur Rebels Say 15 Die in Army Offensive, Reuters (Feb. 20, 2008), http://www.washingtonpost.com/wpdyn/content/article/2008/02/20/AR2008022002622. html. For an account of the obstacles placed by Sudan on the deployment of this force, see U.N. Secretary- General, Report on the Deployment of the African Union-United Nations Hybrid Operation in Darfur, S/2007/759 (Dec. 24, 2007), http://www.un.org/Docs/sc/sgrep07.htm.

142

See Amnesty Int’l, Sudan: Arms Continuing to Fuel Serious Human Rights Violations in Darfur, Ai Index Number: AFR 54/019/2007 (2007), available at http://www.amnesty.org/en/library/ info/AFR54/019/2007 [hereinafter Continuing to Fuel Serious Human Rights Violations]..

143

See Press Release, U.N. Security Council Statement by Madame Carla Del Ponte, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, PR/ P.I.S./ 457-e (22 December 1999), http://www.un.org/icty/pressreal/p457-e.htm [hereinafter U.N. Security Council, Press Release]. See also Sudan Has Failed to Cooperate, supra note 138 (In Dec. 2007, Chief Prosecutor of ICC reported that continuing attacks on people of Darfur were not “sporadic” but “a calculated, organized campaign by Sudanese officials to attack individuals and further destroy the social fabric of entire communities.”).

144

See Payam Akhavan, Enforcement of the Genocide Convention: A Challenge to Civilization, 8 Harv. Hum. Rts. J. 229, 232 (1995).

145

See John B. Quigley, the Genocide Convention: An International Law Analysis, ch. 6 (2006) (describing litigated cases of genocide in Bolivia, Brazil, Cambodia, Croatia, Equatorial Guinea, Germany, Romania, and other countries).

146

See id at 196.

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from the case law is that deporting members of a group en masse so as to threaten their livelihoods is a genocidal act, as courts in Israel, Latvia, and Estonia have concluded.147 A third principle is that officials may be convicted for genocide committed largely against their own ethnic and national group, as Pol Pot and Ieng Sary of Cambodia were in 1979, as Francisco Macias Nguema of Equatorial Guinea was in 1979, as Nicolae and Elena Ceaucescu of Romania were in 1991, and as Mengistu Haile Mariam of Ethiopia was in 2006.148 These rulings should put to rest the argument from deniers of genocide in Sudan, notably Peter Bechtold, Chairman Emeritus of Near East and North Africa Area Studies at the Foreign Service Institute of the U.S. Department of State, that genocide did not occur in Darfur because Arabs and indigenous Africans are not distinct groups in Sudan.149 F. Comparing Sudan to Other Cases of Genocide It is instructive to compare the scale of genocidal massacres and atrocities in southern Sudan and Darfur to some other often-discussed genocides in history. Such a comparison reveals that the death toll, extent of refugee and internally displaced persons (IDP) flight, and number of destroyed towns and villages in southern Sudan and Darfur approaches or far exceeds the figures for other genocides. Table 1 compares the scale of the massacres and atrocities in Darfur to other genocides,150 147

Id. at 24–26, 45; Israel (Prosecutor General) v. Eichmann, Jerusalem District Court (12 December 1961), 36 Int’l L. Reports 340 (1968); Lauri Mälksoo, Soviet Genocide? Communist Mass Deportations in the Baltic States and International Law, 14 Leiden J. of Int’l L. 757, 774–778, 780 (2001).

148

See Quigley, supra note 145, at 38; William Schabas, Cambodia: Was it Really Genocide?, 23.2 Human Rights Q. 470 (2001); Judgement of the [Cambodian] People’s Revolutionary Court, U.N. Doc. A/34/491, 19 August 1979, cited in Provisional Detention Order for Ieng Sary, Extraordinary Chambers in the Courts of Cambodia, 14 November 2007, http://www.eccc. gov.kh/english/cabinet/indictment/11/Provisional_detention_order_IENG_Sary_ENG.pdf. Ethiopia’s former President Mengistu Haile Mariam was tried and convicted in absentia for genocide arising out of the killing of tens of thousands of people from 1974 to 1991, after being deposed by a rebel leader who became Prime Minister in 1991. See An Archive of Murders Past; Ethiopia, The Economist, Sept. 29, 2007 (President Mengistu was tried in absentia for genocide and sentenced to life in prison but remained a “guest” in Zimbabwe in late 2007).

149

See Transcript, Youth Forum on Human Rights and the Crisis in Darfur (2008), http://www.cspanarchives.org/library/index.php?main_page=product_video_info&products_id=203572-1.

150

Table 1 does not include other mass killings that may qualify as genocide but that are less often discussed in genocide case law and scholarly writing, including the millions killed during European colonialism and the enslavement of indigenous peoples in Africa, the Americas, and Asia; the millions of Chinese, South Koreans, Vietnamese, Filipinos, Indonesians, and Burmese murdered by the Japanese and their allies during World War II; the millions of Slavic Poles, Russians, and Serbs murdered by the Nazis and their allies during World War I and World War II; the hundreds of thousands of East Timorese, Afghans, Guatemalans, and Iraqis murdered by their governments and/or foreign invaders; and the millions of Congolese murdered by the Rwandans, Ugandans, and their allies during Africa’s World War from 1998 until at least 2003. See infra note 300 (summarizing casualties of mass murder and destruction of civilian infrastructure by Empire of Japan); Geoffrey P. Megargee, War of Annihilation: War and Genocide on the Eastern Front, 1941, at xi, 37–41, 59–62,

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including the Armenian, Assyrian, and Greek genocide starting in 1915; the

89–92, 115–19, 141–42 (2006) (describing Nazi murder of about 30 million Soviet citizens through massacres, deliberate starvation of civilians, etc.); R.A.C. Parker, Struggle for Survival: The History of the Second World War 281–87 (1989); 1 U.S. Office of Chief of Counsel for the Prosecution of Axis Criminality, Nazi Conspiracy and Aggression, ch. XIII (1946), http://www.yale.edu/lawweb/avalon/imt/document/nca_vol1/ chap_13.htm (Nazi planning documents for occupation of Soviet Union stated that: “Many tens of millions of people in this area will become redundant and will either die or have to emigrate to Siberia.” Soviet prosecutor stated: “[T]his document discloses, on its face, a studied plan to murder millions of people through starvation.”); Judgement: Bormann, in Judgment of the International Military Tribunal for the Trial of German Major War Criminals (1947), available at http://www.yale.edu/lawweb/avalon/imt/proc/judborma.htm (Nazi official convicted of “extermination” in Soviet Union); Judgement: Rosenberg, in Judgment of the International Military Tribunal, available at http://www.yale.edu/lawweb/avalon/imt/proc/ judrosen.htm (Nazi official convicted of atrocities against Soviet and other Slavic peoples); Tadeusz Piotrowski, Poland’s Holocaust: Ethnic Strife, Collaboration with Occupying Forces and Genocide in the Second World War 305 (1998) (Germans killed millions of ethnic Poles); James F. Brown, Hopes and Shadows: East Europe after Communism 225 (1994) (Germans killed a third to half of Roma people (“Gypsies”) during the Holocaust); Report Cites East Timor Suffering, Cnn.Com, Jan 18, 2006, available at http:// Cnn.Com/2006/WORLD/asiapcf/01/18/easttimor.indonesia/index.html?eref=sitesearch (200,000 East Timorese killed by Indonesian government); Sian Powell, UN Verdict on East Timor, The Australian, Jan. 19, 2006, available at http://www.yale.edu/gsp/east_timor/ unverdict.html (similar); Benjamin A. Valentino, Final Solutions: Mass Killings and Genocide in the 20th Century 220–233 (2004) (over one million Afghans died under Soviet occupation); Mohammad Hassan Kakar, Afghanistan: The Soviet Invasion and the Afghan Response, 1979–1982, at 213–52 (1997) (similar); Guatemalan Commission for Historical Clarification, Guatemala: Memory of Silence (1999), available at http://shr.aaas.org/guatemala/ceh/report/english/conc2.html (200,000 Guatemalans, principally Mayan in ethnicity, murdered as a result of government policy); Guatemala ‘Genocide’ Probe Blames State, BBC News, Feb. 25, 1999, available at http://news.bbc.co.uk/1/hi/world/ americas/286402.stm (similar); John F. Burns, In New Hussein Trial, a Grisly Portrait of Mass Killings, N.Y. Times, Dec. 4, 2006, at A15 (180,000 Kurds were killed or disappeared, according to Iraqi prosecutors who filed charges against Saddam Hussein for genocide); Middle East Watch, Genocide in Iraq: The Anfal Campaign Against the Kurds 297–98, 312–17, 345 (1993) (similar); Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Rwanda), Judgment of 3 February 2006, 2006 ICJ LEXIS 1, *20 (Congo alleged that “by killing, massacring, raping, throat-cutting, and crucifying, Rwanda is guilty of genocide against more than 3,500,000 Congolese, including the victims of the recent massacres in the city of Kisangani”); Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), ¶¶ 203–19, Judgment of 19 December 2005, 2005 ICJ LEXIS 1 (finding extensive violations of laws of war and of belligerent occupation by Uganda, and ordering payment of reparations to Congo); Under-Secretary-General Calls For Greater Security Council Commitment to Ending Conflicts in Democratic Republic of the Congo, Northern Uganda, US Fed News, Sept. 16, 2006 (U.N. Under-Secretary-General for Humanitarian Affairs described Congo as suffering equivalent of “six Rwandan genocides”); James Astill & Isabelle Chevallot, Conflict in Congo Has Killed 4.7m, Charity Says Starvation and Disease Multiply Toll from Fighting, The Guardian (U.K.), Apr. 8, 2003, http://www.guardian.co.uk/congo/story/0,12292,932034,00.html.

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Holocaust of European Jews from 1933 to 1945; and the cases of Bangladesh, Bosnia, Cambodia, Indonesia, Kosovo, and Rwanda. Table 1 Comparison of Sudan to Other Genocides Case

Death Toll

Refugees/IDPs Sources

Jewish Holocaust, 1933–1945

5.1–6.3 million

4.4 million

International Military Tribunal, Nuremberg, Judgement: Kaltenbrunner (Sept. 30–Oct. 1, 1946)151

Ottoman Empire, 1914–1923

2 million

1.7 million

U.S. Ambassador to Ottoman Empire Henry I. Morgenthau, speaking to the Los Angeles Times in 1918152

S. Sudan, 1992–2001

2 million

4 million

Sudan Peace Act, Pub. L. No. 107–245, § 2(1) (2002)153 Continued

151

The International Military Tribunal concluded that six million Jews had been exterminated by the Nazis and their allies. See International Military Tribunal, Nuremberg, Judgment of the International Military Tribunal for the Trial of German Major War Criminals: Kaltenbrunner Judgment (Sept. 30–Oct. 1, 1946), http://www.yale.edu/lawweb/avalon/imt/proc/judkalt.htm. More detailed statistical analyses have estimated that between 5.1 and 6.3 million Jews were exterminated. See, e.g., D. D. Guttenplan, the Holocaust on Trial 115–116 (2001); Michael Shermer & Alex Grobman, Denying History: Who says the Holocaust Never Happened and Why do they say it? 174 (2000); David E. Stannard, The Politics of Holocaust Scholarship: Uniqueness as Denial, in is the Holocaust Unique?: Perspectives on Comparative Genocide 282 (Alan S. Rosenbaum ed., 2000). The figure for Jewish refugees from Nazi-occupied Europe comes from Shermer & Grobman, supra, at 174.

152

See Morgenthau Urges Carving of Turkey, L.A. Times, Dec. 12 1918, at I-1. See also U.N. Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Thirty-eighth session, Item 4 of the provisional agenda, U.N. Doc. E/CN.4/Sub.2/1985/6 (2 July 1985), ¶ 24, http://www.preventgenocide.org/prevent/UNdocs/whitaker/section5.htm#r17. For the figure on refugees and displaced persons, see Aristide R. Zolberg, Astri Suhrke, & Sergio Aguayo, Escape from Violence: Conflict and the Refugee Crisis in the Developing World 14–16 (1989).

153

See U.S. Committee for Refugees, supra note 65. Testimony before the U.S. Congress indicated that more than four million had been displaced from their communities in Sudan. See U.S. Congress, House. Committee on International Relations, Subcommittee on Africa, America’s Sudan Policy: A New Direction?, at 44 (2001).

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Table 1 Comparison of Sudan to Other Genocides (cont’d) Case

Death Toll

Refugees/IDPs Sources

Cambodia, 1975–1979

2 million

500,000

U.N. Economic and Social Council, Commission on Human Rights154

Bangladesh, 1971

1–3 million

10 million

Government of India;155 U.S. Consulate (Dacca, Bangladesh)156

Rwanda, 1994

800,000–1 million

1 + million

The International Criminal Tribunal for Rwanda157

Darfur, 2003–?

200,000–450,000

2.38 million

U.S. Secretary of State; U.S. Government Accountability Office158 Continued

154

U.N. Economic and Social Council, supra note 71, ¶ 24. See also Helen Fein, Revolutionary and Antirevolutionary Genocides: A Comparison of State Murders in Democratic Kampuchea, 1975 to 1979, and in Indonesia, 1965 to 1966, in 35 Comparative Studies in Society and History 796, 810–12 (Oct., 1993). For the figure on refugees and IDPs, see Marjoleine Zieck, Unhcr and Voluntary Repatriation of refugees: A Legal Analysis 138 (1997).

155

See Government of India, Ministry of External Affairs, Bangla Desh Documents (1971). The Indian government’s estimate of the death toll was two million. See 26 U.N. G.A.O.R., 2003rd Plenary Meeting, 7 Dec. 1971, at 14 ¶ 156; 26 U.S. S.C.O.R., 1608th Meeting, 6 Dec. 1971, at 27 ¶ 262. For various estimates ranging up to three million killed, see Valentino, supra note 150, at 220–23. For the refugee figures, XI Foreign Relations of the United States, 1969–1976: Southeast Asia Crisis, 1971 181 , available at http://www. state.gov/documents/organization/45587.pdf (Editorial note); id. at 629 (letter from Indian Prime Minister Indira Gandhi to President Nixon); Anthony Lewis, The Wringing of Hands, N.Y. Times, Dec. 6, 1971, at 39. Bangladesh was then called East Pakistan.

156

U.S. Consulate (Dacca, Pakistan), Cable: Selective Genocide, Mar. 27, 1971, http://www.gwu. edu/~nsarchiv/NSAEBB/NSAEBB79/BEBB1.pdf; U.S. Consulate (Dacca, Pakistan), Cable: Dissent from U.S. Policy Toward East Pakistan, Apr. 6, 1971, “Confidential,” http://www.gwu. edu/~nsarchiv/NSAEBB/NSAEBB79/BEBB8.pdf.

157

Prosecutor v. Kayishema and Ruzindana, Case No., ICTR-95-1-A, Judgment, ¶ 291 (1999), available at http://69.94.11.53/ENGLISH/cases/KayRuz/judgement/5.htm. See also U.N. Econ. & Soc. Council, Comm. on Human Rights, Report on the Situation of Human Rights in Rwanda, ¶ 8, U.N. Doc. E/CN.4/1995/71 ( January 17, 1995) (submitted by René DegniSégui), available at http://ap.ohchr.org/documents/alldocs.aspx?doc_id=520. For the figures on refugees and IDPs, see Howard Adelman & Govind C. Rao, War and Peace in ZaireCongo: Analyzing and Evaluating Intervention, 1996–1997, at 276 n.14 (2004).

158

See Colin L. Powell, Written Remarks on The Crisis in Darfur, supra note 99; U.S. Government Accountability Office, Darfur Crisis: Death Estimates Demonstrates Severity of Crisis, but their Accuracy and Credibility Could be Enhanced 56–61 (2006), available at http://www.gao.gov/new.items/d0724.pdf. See also Editorial, Darfur’s Real Death Toll, Wash. Post, Apr. 24, 2005, at B06. For the figure on refugees and IDPs, see U.N. Mission in

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Table 1 Comparison of Sudan to Other Genocides (cont’d) Case

Death Toll

Refugees/IDPs Sources

Indonesia, 1965–1966

100,000–1 million

Unknown

FOREIGN RELATIONS OF THE U.S.159

Burundi, 1972

100,000–300,000

133,000

U.N. Economic and Social Council, Commission on Human Rights160

Bosnia, 1992–1996

8,000

2.2 million

The International Criminal Tribunal for the Former Yugoslavia161

Kosovo, 1999

2,100–8,000

1 million

The International Criminal Tribunal for the Former Yugoslavia (Spokesperson)162

Sudan, Darfur Humanitarian Profile No. 29 - Situation as of 01 Oct 2007, http://www.reliefweb. int/rw/rwb.nsf/db900sid/KHII-7A48G7?OpenDocument. 159

XXVI Foreign Relations of the United States, 1964–1968: Indonesia; MalaysiaSingapore; Philippines, 338–340 (editorial note), available at http://www.gwu.edu/~nsarchiv/ NSAEBB/NSAEBB52/exhibit1.pdf. For figures on death toll, see Robert Cribb, Genocide in Indonesia, 1965–1966, 3 J. Of Genocide Res. 219, 219 (2001); Fein, supra note 160, at 801–04. For the figure on refugees and IDPs, see Global IDP Project, Bosnia and Herzegovina: 330,000 People Still Displaced Eight Years After the Peace Agreement ( Jan. 30, 2004), http://wwwnotes. reliefweb.int/w/rwb.nsf/vID/228F4E9C0261EC43C1256E2B0053D904?OpenDocument.

160

U.N. Economic and Social Council, supra note 157, ¶ 24. See also C.L. Sulzberger, To Be Obscurely Massacred, N.Y. Times, July 2, 1972, at E9. For the figures on refugees and IDPs, see Ivor C. Jackson, the refugee concept in group situations 166 (1999).

161

See Prosecutor v. Krstic, Case No. IT-98-33-A, Appeals Chamber, Judgement (19 April 2004), ¶¶ 25–38, http://www.un.org/icty/krstic/Appeal/judgement/index.htm. The figure cited represents the toll in the Srebrenica area alone. The Tribunal has questioned whether the warfare outside of Srebrenica constituted genocide. See William A. Schabas, Preventing the “Odious Scourge”: The United Nations and the Prevention of Genocide, 14 Int’l J. Of Minority Rts. 379 (2007).

162

See Weekly Press Briefing, ICTY (Mar. 13, 2002), http://www.un.org/icty/latest-e/index.htm (noting 8,000 people had died); Press Release, U.N. Sec., Statement by Madame Carla Del Ponte, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, U.N. Doc. PR/P.I.S./ 457-e (Dec. 22, 1999), available at http://www.un.org/icty/pressreal/p457-e.htm. A spokesman for the ICTY acknowledged that some of the victims whose bodies were exhumed by its investigators may have died in combat as opposed to due to war crimes. See, Weekly Press Briefing, ICTY (Aug. 4, 1999), http://www.un.org/icty/briefing/PB040899.htm (noting that it was too early to determine numbers). For the refugee/IDP figure, see The Kosovo Refugee Crisis: Hearing Before the Subcomm. On Immigration of the S. Comm. on the Judiciary, 106th Cong., S. Hrg. 106-443, at 10 (1999) (statement of Vjosa Dobruna, Director and Founder, Center for the Protection of Women and Children, Pristina, Kosovo), available at http://www. loc.gov/law/find/hearings/pdf/00068691710.pdf.

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The Commission of Inquiry on Darfur did not cite to or analyze any of the major cases brought in national co urts convicting political officials of genocide after the Genocide Convention became law. This is inexcusable, particularly in light of the Commission’s conclusion that “States have shown caution when defining genocidal intent with regard to particular events,” a proposition which it supported with a single citation to a memorandum of the Canadian foreign ministry, a political rather than a judicial body, which was analyzing allegations of genocide against Albanian Muslims in Kosovo.163 The Commission’s report was also deficient in omitting to mention that the U.S. President, the U.K. Prime Minister, the SecretaryGeneral of the North Atlantic Treaty Organization, the Prime Minister of Turkey, and other leaders claimed publicly that genocide (or the intent to commit genocide) had taken place in Kosovo, based on the killings of fewer than 10,000 people.164 While ignoring national precedents other than a single memorandum from Canada, the Commission of Inquiry on Darfur cited extensively to the jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda. Established by the Security Council pursuant to its Chapter VII powers under the U.N. Charter,165 the tribunals have issued important rulings defining the mens rea required to find the crime of genocide. The Commission of Inquiry acknowledged many of the tribunals’ important clarifications of the Genocide Convention, but failed to apply them to the facts on the ground in Darfur. First, the Yugoslav and Rwandan tribunals have clarified that the crime of genocide requires neither the complete destruction of a group nor the intent to annihilate a group completely, because an “intention to destroy at least a substantial part of a particular group” suffices for genocidal intent.166 The Commission of Inquiry 163

See ICID Report, supra note 4, at ¶ 504, n.186.

164

See Day by Day Guide of the Conflict So Far, The Times (U.K.), Apr. 3, 1999 (U.S. President Bill Clinton and U.K. Prime Minister Tony Blair); Bob Davis, Pledging a ‘Clinton Doctrine’ for Foreign Policy Creates Concerns for Adversaries and Allies Alike, Wall. St. J., Aug. 6, 1999, at A12 (Bill Clinton); Tony Blair, My Pledge to the Refugees, BBC News, May 14, 1999, available at http://news.bbc.co.uk/1/hi/uk_politics/343739.stm (Tony Blair); Lance Gay, U.S. Unable to Prove It’s Genocide But Hints Milosevic Coming Close, Plain Dealer (Cleveland, Ohio), Apr. 1, 1999, at 8A (NATO Secretary-General Javier Solana); Turkey Readies to Receive 20,000 Kosovar Refugees, Turkish Daily News, April 6, 1999 (Turkish Prime Minister Bulent Ecevit). Russia, for its part, declared that genocide was being conducted against 200,000 Serbs and other minorities driven out of Kosovo after the victory of the Kosovar Albanian rebels with NATO air support. See Russian FM Blasts West Over Chechnya, Kosovo, Xinhua General News Service, Nov. 30, 1999 (the article also states the reticence of Western nations to officially label the conflict “genocide,” however).

165

See Akhavan, supra note 144, at 230.

166

Prosecutor v. Milosevic (Kosovo, Croatia, and Bosnia), Case No. IT-02-54-T, Trial Chamber, Judgment, ¶ 128 ( June 16, 2004). The Appeals Chamber for Rwanda has concurred in this conclusion. See Prosecutor v. Kayishema & Ruzindana, Case No. ICTR-95-1-T, Judgment, ¶ 159 ( June 1, 2001), available at http://69.94.11.53/ENGLISH/cases/KayRuz/appeal/

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should have applied this principle to the situation in Darfur, which it easily could have done by concluding that the Sudanese army and its Janjaweed allies had committed genocide by killing a considerable or significant number of individuals of specific non-Arab ethnic or tribalgroups.167 This would also have been consistent with the designation of the Holocaust as a crime of genocide, despite the fact that fewer than fifty percent of the Jews living in France, Belgium, Denmark, Norway, Italy, Romania, or Bulgaria at the outset of the “Final Solution” actually died in the Holocaust.168 As Table 2 below illustrates, the Commission of Inquiry could have drawn upon several published sources that demonstrate an intention on the part of Sudanese government and Janjaweed leaders to kill large numbers of non-Arabs in the Darfur region and to destroy their livelihoods. Table 2 Admissions by Sudanese Officials Regarding Genocide in Darfur Date

Source

Admission

2003

State Minister of the Interior Ahmed Haroun169

“Haroun . . . exhorted the Janjaweed and army in a speech to ‘kill the Fur’. . . .”

2003

Provincial commissioner for West Darfur170

“Zaghawa, Fur and Masalit have become rebels. We will burn everything down and only leave behind the trees. They can destroy all Darfur and even if there is only one soldier left, he will fight against America. This is now jihad.” Continued

index.htm; see also Prosecutor v. Krnojelac, Case No.: IT-97-25-A, Appeals Chamber, Judgement (17 Sept. 2003), available at http://www.un.org/icty/krnojelac/appeal/judgement/ krn-aj030917e.htm. 167

See Prosecutor v. Kayishema and Ruzindana, supra note 166, ¶¶ 147– 49; Prosecutor v. Jelisić, Case No. IT-95-10-A, Appeals Chamber, Judgement, ¶ 82 ( July 5, 2001), available at http:// www.un.org/icty/Supplement/supp26-e/jelisic.htm.

168

See Raphael Lemkin, Genocide as a Crime under International Law, 41 Am. J. Of Int’l L. 145 (1947) (“[I]n 1945 . . . the German war criminals were indicted, among other things, on the charge of genocide, meaning the extermination of racial, national or religious groups, especially the Jews, Poles, Gypsies, and others . . . . The evidence produced at the Nuremberg trial gave full support to the concept of genocide.”); see also Parker, supra note 156, at 268 (setting forth figures ranging from one percent of Danish Jews to 25 percent of French Jews to 45 percent of Belgian Jews); Lemkin, supra note 20, at 80 n.3 (inventor of term “genocide” used it to describe wars “in which nations and groups of the population were . . . almost completely destroyed”) (emphasis added).

169

Entrenching Impunity, supra note 44, at 26.

170

Id.

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Table 2 Admissions by Sudanese Officials Regarding Genocide in Darfur (cont’d) Date

Source

Admission

2003

President el-Bashir171

“Our priority from now on is to eliminate the rebellion. . . . We will use the army, the police, the mujahedeen [holy warriors], the horsemen to get rid of the rebellion.”

2004

President al-Bashir172

“You are informed that directives have been issued . . . to change the demography of Darfur and empty it of African tribes ‘through burning, looting, and killing’ of intellectual and youths who may join the rebels in fighting.”

2004

Sheik Musa Hilal. Janjaweed Commander173

“What I can say about Darfur, . . . is that the government came to me and to many of the other sheiks and asked for our help in fighting the S.L.A. Of course, we did so gladly. . . . [W]hat happened after that, if mistakes or crimes took place–well, that is the government’s responsibility, not ours.”

2004

Lt. Gen. Ibrahim Suleiman, former Governor of North Darfur174

“When the problems with the rebels started in Darfur, we in the government of Sudan had a number of options. We chose the wrong one. We chose the very worst one.”

2004

Janjaweed communiqué175

“[E]xecution of all directives from the president of the republic,” including: “Change the demography of Darfur and make it void of African tribes,” by “killing, burning villages and farms, terrorizing people, confiscating property from members of African tribes and forcing them from Darfur.” Continued

171

Sudanese President Says War Against Outlaws Is Government Priority, Associated Press, Dec. 31, 2003.

172

Alex de Waal, Darfur: A short History of a Long War 106 (2005).

173

Scott Anderson, How Did Darfur Happen?, N.Y. Times Mag., Oct. 17, 2004, Magazine, http://www.nytimes.com/2004/10/17/magazine/17DARFUR.html?8br=&pagewanted= print&position=.

174

Id.

175

Nicholas D. Kristof, Op-Ed., The Secret Genocide Archive, N.Y. Times, Feb. 23, 2005, available at http://www.nytimes.com/2005/02/23/opinion/23kristof.html?_r=1&oref=login.

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Table 2 Admissions by Sudanese Officials Regarding Genocide in Darfur (cont’d) Date

Source

Admission

2004

Sudanese Brigadier General176

“I talked to the Sudanese brigadier general on the ground. He told me his mission was to clear the road from Labado all the way to Khartoum, which is about 100 kilometers away. If he encountered any resistance he was going to fight back and take the villages out. Those were his orders, he told me, and they came directly from Khartoum.”

Second, genocide may be established by evidence of the intent to destroy a “substantial part” of the group.177 Genocidal intent may be inferred quantitatively, from proof that a large number of victims have been targeted for destruction,178 or qualitatively, from proof that a group’s leaders have been targeted.179 The former principle provides a basis to infer a genocidal intent from what the Commission of Inquiry itself described as the “systematic killing of civilians belonging to particular tribes, [and the] large-scale causing of serious bodily or mental harm to members of the population belonging to certain tribes.”180 The Commission erroneously declined to conclude that genocide had taken place even when its factual findings directly paralleled the Genocide Convention’s definition of genocide.181 The Commission also should have inferred genocidal intent from its

176

Quoted by U.S. State Department official working with the African Union Mission in Sudan (AMIS), in Marc L. Goldberg, Anatomy of a Genocide, The American Prospect (Mar. 17, 2005), http://www.prospect.org/web/page.ww?section=root&name=ViewWeb&articleID= 9339.

177

See Prosecutor v. Milosevic, supra note 166, at ¶ 132 (citing Prosecutor v. Krstic, Case No. IT-98-33-A, Appeals Chamber, Judgement, ¶ 12 (Apr. 19, 2004), available at http://www. un.org/icty/krstic/Appeal/judgement/krs-aj040419e.htm).

178

See id.

179

See Id.

180

ICID Report, supra note 4, ¶ 507.

181

Compare id. (finding “massive and deliberate infliction on [non- Arab] tribes of conditions of life bringing about their physical destruction in whole or in part (for example by systematically destroying their villages and crops, by expelling them from their homes, and by looting their cattle)”), with Genocide Convention, supra note 6, at art. 2 (“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: . . . Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”).

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findings as to the Sudanese government’s interference with relief aid to the victims of Janjaweed or Sudanesemilitary attacks in Darfur.182 The Commission acknowledged that intent may be satisfied qualitatively as well, citing an influential U.N. report on the Genocide Convention, which concluded that genocide includes acts directed at “a significant section of a group such as its leadership.”183 The Commission should have applied this principle to infer genocide from several attacks in which many non-Arab community leaders in Darfur were shot to death or bombed.184 Third, the drafters of the Genocide Convention decided that mixed political or economic motives should not prevent a judicial finding of genocidal intent to destroy a group in whole or in part.185 This should have led the Commission to conclude that genocide could be inferred from the actions of the Sudanese government even though it may have had mixed or mutually reinforcing motives of ethnic destruction, counter-insurgency warfare, and economic policy.186 It should also have led the Commission to reject the notion that the Sudanese military and allied Janjaweed did not manifest a “special intent to kill a member of a group to destroy the group as such” simply because they sometimes steal camels or cattle while shooting or brutally beating their owners, and thereby obtain an economic benefitas well as inflict an ethnic harm.187 Such a requirement of unadulterated, purely hateful motives is impossible to meet in any genocide, including the Holocaust, in which the looting of Jewish and Slavic property was widespread.188 182

See Christa Rottensteiner, The Denial of Humanitarian Assistance as a Crime under International Law, Int’l Rev. of the Red Cross No. 835, at 555 (1999), http://www.icrc.org/Web/Eng/ siteeng0.nsf/html/57JQ32.

183

ICID Report, supra note 4, at ¶ 492 n.175 (citing Benjamin Whitaker, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, UN Doc. E/CN.4/Sub.2/1985/6, at § 29).

184

Id. ¶¶ 253, 274–75.

185

See Hurst Hannum & David Hawk, The Case Against the Standing Committee of the Communist Party of Kampuchea, in Jeffrey L. Dunoff, Steven R. Ratner, & David Wippman, International Law: Norms, Actors, Processes: A Problem-Oriented Approach (2002) (drafters of Genocide Convention decided against precluding finding of genocide where mixed motives existed, because that “would be a powerful weapon in the hands of guilty parties and would help them to avoid being charged with genocide”) (quoting representative of Venezuela); see also Prosecutor v. Jelisić, supra note 167 ¶ 49 (personal economic motive is consistent with the specific intent to commit genocide); Prosecutor v. Kayishema & Ruzindana, supra note 157, ¶ 161 (same).

186

ICID Report, supra note 4, at ¶ 518.

187

Id. ¶ 517. See also Reeves, supra note 89 (commission of inquiry “confused ‘intent’ and ‘motive”’).

188

See Prosecutor v. Tadic, Case No.: IT-94-1-T, Judgment ¶¶ 255–269 ( July 15, 1999) (rejecting any requirement of non-personal motives because it would lead to the acquittal, for example, of a Nazi official who claimed that he participated in the genocide of Jews and Roma people “only for the ‘purely personal’ reason that he feared losing his job,” and endorsing instead “the

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Fourth, because confessions and direct evidence of genocidal intent are rare, the Yugoslav and Rwandan tribunals have repeatedly held that intent must usually be inferred from evidence of, inter alia, “the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts.”189 The Commission conceded this.190 Each of the factors from which genocidal intent may be inferred is present in the case of Darfur, including large numbers of affected group members, repeated acts violating the economic and familial foundation of the affected groups, systematic and deliberate targeting of non-Arabs accompanied by the exclusion of Arabs from liability to attack, and routine use of language perceived to be derogatory, such as the word “slave.”191 Moreover, the Sudanese government’s designation of Janjaweed fighters as “mujahideen” was a declaration of “holy war” upon their enemies, a declaration which led to large-scale massacres of civilians in the south and the Nuba mountains.192 References to Darfurians as “Nuba” underline the importance of this fact.193

requirement that the accused’s acts be part of a context of large-scale crimes, and that the accused knew of this context”)Need; Judgment: Goering, in Judgment of the International Military Tribunal for the Trial of German Major War Criminals (1947), available at http:// www.yale.edu/lawweb/avalon/imt/proc/judgoeri.htm (Hermann Goering, a “prime leader[ ] of the Nazi movement,” persecuted the Jews and fined the Jewish community one billion Deutsche marks, and his “interest was primarily economic—how to get their property and how to force them out of the economic life of Europe.”). 189

Prosecutor v. Milosevic, supra note 166 at ¶ 120 (quoting Prosecutor v. Jelisić, Case No. IT-9510-A, Appeals Chamber Judgement, ¶ 47 ( July 5, 2001), available at http://www.un.org/icty/ Supplement/supp26-e/jelisic.htm); see also Prosecutor v. Gacumbitsi, Case No. ICTR-2001– 64-A, Appeals Chamber, Judgement, at 15, ¶ 40 (7 July 2006), available at http://69.94.11.53/ ENGLISH/cases/Gachumbitsi/judgement/judgement_appeals_070706.pdf.

190

See ICID Report, supra note 4, at ¶ 502 n.185.

191

See id. ¶¶ 184–402, 507–11, 516. See also Human Rights Watch, Entrenching Impunity, supra note 44, at 30.

192

See Sudanese President Says War Against Outlaws Is Priority, supra note 171 (declaring that the president would use “mujahedeen” forces to “get rid of the rebellion”); Entrenching Impunity, supra note 44, at 30 (Sudanese provincial commissioner, who organized “mass executions” of civilians of Fur and other tribes, stated: “Zaghawa, Fur and Masalit have become rebels. We will burn everything down and only leave behind the trees . . . . This is now jihad.”); id. at 23 (a Sudanese government memorandum to state and provincial security forces orders them to attack rebels’ “elements among civilians” and allow “the activities of the mujahedeen and the volunteers under the command of Sheikh Musa Hilal”).

193

Entrenching Impunity, supra note 44, at 6 (“The government’s response drew upon tactics used in the civil wars in southern Sudan and the Nuba Mountains: aerial bombardment, the recruitment of ethnic militias as proxy ground forces, forced displacement—on an ethnic basis—of rural civilians on a massive scale, and persecution of real or perceived political opposition.”); id. at 16 (Sudanese pilots referred to Zaghawa civilians as “‘Nuba, abid [slave],’ and said things like, ‘I am going to give those slaves a lesson they will not forget.’”); id. at 27 (civilian in Darfur stated that: “When the Janjaweed militia arrived, they were screaming

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Fifth, the Commission noted that the systematic nature of acts of rape committed in Darfur is “indicative of the genocidal intent” of the perpetrators of these rapes.194 The Rwanda tribunal has confirmed that rape and sexual assault may be genocidal acts if they are committed with the requisite intent and if they cause (1) serious bodily or mental harm, (2) women to bear children of the aggressor group, or (3) women of the victim group to be unable or willing to give birth to new members of their group due to the trauma of rape.195 Such rapes help destroy groups because they destroy female members, their families, and perhaps entire communities.196 As of early 2004, the Yugoslav tribunal had indicted thirteen individuals for genocide by acts of rape, and the Rwanda tribunal had amended nearly all of its indictments that alleged sexual assault “to charge them as genocide.”197 The testimony of the victims in Darfur demonstrates the applicability of these precedents. Victims report that the circumstances in which they were raped demonstrated an intention to attack their entire ethnic group, rather than to abuse them personally. Women have reported that the rapists who attacked them used racist language such as “dirty black Nuba” or “slaves,”198 or declared that they wanted to “make more Arab babies.”199 Finally, the Commission of Inquiry on Darfur raised the question, without expending the effort to answer it, whether Sudanese political and military officials were criminally culpable for complicity in genocide, attempted genocide, or conspiracy to commit genocide.200 As indicated above, there is ample evidence from which to conclude that Sudanese officials have given orders to, supplied weapons to, supported, transported, and failed to investigate or punish groups such as the Janjaweed

‘Nuba, abid’ he said.”); id. at 29 (eyewitness of 2003 Janjaweed attack reported that attacker screamed “‘Nuba, Nuba, you are . . . all slaves.’”). 194

ICID Report, supra note 4, at ¶ 513.

195

See Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber, Judgement, § 6.3.1 (Sept. 2, 1998), available at http://www.un.org/ictr/english/judgements/akayesu.html; see also Prosecutor v. Muhimana, Case No. ICTR- 95-1B-T, Trial Chamber I, Judgment and Sentence, ¶¶ 513, 517 (April 25, 2005), summary available at http://69.94.11.53/ENGLISH/cases/ Muhimana/judgement/280405summary.pdf; Prosecutor v. Semanza, Case No. ICTR-97–20-T, Trial Chamber III, Judgment and Sentence, ¶¶ 476–77 (May 15, 2003), available at http://69.94.11.53/ENGLISH/cases/Semanza/judgement/6.htm; Kristof, Genocide in Slow Motion, supra note 63; Catherine A. MacKinnon, Defining Rape Internationally: A Comment on Akayesu, 44 Colum. J. Transnat’l L. 940, 947 (2006).

196

See Akayesu, supra note 195, ¶ 731.

197

MacKinnon, supra note 195, at 947–49 nn.40–41.

198

Human Rights Watch, Sexual Violence and its Consequences among Displaced Persons in Darfur and Chad: A Briefing Paper 5 (Apr. 12, 2005), available at http://www.hrw.org/backgrounder/ africa/darfur0505/darfur0405.pdf.

199

See Lydia Polgreen, Darfur’s Babies of Rape Are on Trial From Birth, N.Y. Times, Feb. 11, 2005, at A1.

200

See ICID Report, supra note 4, ¶ 520.

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and the PDF. But while the Commission cited the Yugoslav tribunal for the idea that genocidal intent is a “stringent requirement[ ]” that must be “unequivocally established,” it failed to recognize the tribunal’s conviction in the same case of an individual who lacked such a personal genocidal intent for “complicity in genocide.”201 In that case, the Trial Chamber of the Yugoslav tribunal convicted a general in the Bosnian Serb army for having “fulfilled a key co-ordinating role in the implementation of the killing campaign” against the “military-aged Bosnian Muslim men of Srebrenica,” even though he “did not . . . kill them personally.”202 The Appeals Chamber affirmed, but designated the conviction as for aiding and abetting genocide.203 Similarly, a conspiracy to commit genocide may occur even if genocide itself does not ensue.204 Having failed to conduct a similar analysis, the Commission’s report remains incomplete. III. THE ROLE OF OIL EXPLORATION IN SUDAN’S GENOCIDE A. The “Clearing” of Oil Producing Areas U.N. reports and victim groups have accused the Sudanese government of committing genocide against non-Arab groups in order to cordon off and exploit regions of the country containing significant oil deposits.205 The U.N. Commission on Human Rights concluded that “long-term efforts by the various Governments of Sudan to protect oil production have included a policy of forcible population displacement in order to clear oil producing areas and transportation routes of southern civilians.”206 By 1980, the American oil company Chevron had discovered oil in Sudan.207 Chevron planned to finance a refinery in the Upper Nile region and an oil pipeline

201

Id. ¶ 503.

202

Prosecutor v. Krstic, Case No. IT-98-33-T, Trial Chamber, Judgement, ¶ 644 (2 Aug, 2001), available at http://www.un.org/icty/krstic/TrialC1/judgement/krs-tj010802e-1.htm#IIB.

203

Krstic Appeal Judgment, supra note 161, ¶ 143.

204

See William A. Schabas, the un International Criminal Tribunals: The Former Yugoslavia, Rwanda, and Sierra Leone 137, 181 (2006).

205

See Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 300–303, 321–28 (S.D.N.Y., 2004) (recounting allegations of plaintiffs, which court assumed to be true). See also Second Amended Class Action Complaint, ¶¶ 17–51, Presbyterian Church of Sudan v. Talisman Energy, Inc., (No. 01 Civ. 9882), available at http://www.bergermontague. com/pdfs/SecondAmendedClassActionComplaint.pdf; Jemera Rone, Human Rights Watch, Sudan: Rebels, Religion and Oil (Nov. 25, 2003), http://hrw.org/english/docs/2003/11/25/ sudan12988.htm.

206

Second Amended Class Action Complaint, supra note 212, ¶ 58(a).

207

See Sudan Pushing Cotton Exports, N.Y. Times, July 12, 1980, at 23. At that time, Sudan imported about $360 million in oil per year. See id.

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to the Red Sea.208 Other Western oil companies worked to develop oil projects in southern Sudan.209 In 1984, the Chevron Oil Company of the Sudan suspended its plans to export oil from the country, due to southern Sudanese rebel attacks on its installations,210 including an incident in which rebels seized a Chevron facility and killed three workers.211 In 1990, Chevron sold its oil exploration rights to Arakis Energy Corporation, a Canadian company.212 Arakis completed the oil wells that Chevron had begun to drill, and planned to complete Chevron’s pipeline.213 In 1998, Talisman Energy, a transnational oil company traded on U.S. stock exchanges and headquartered in Canada, acquired the assets and liabilities of Arakis, including its Sudan exploration rights, for $223 million.214 During that same year, the Sudanese government incited nomadic Arabs of Darfur and South Kordofan to attack Dinka-populated areas “to quash SPLA support in the . . . region and ‘secure the oil fields around Bentiu, the capital of Unity State.”’215 As one expert described this campaign, the army achieved the “clearance of the oilfield zones” of Southern Sudan by mobilizing militias and inflicting “deliberate starvation” on civilians.216 In 1999, the SPLA targeted the Talisman Energy oil facilities as a source of foreign exchange for the government and allied militias to purchase weapons, and the Canadian Government announced a fact-finding mission to investigate claims that Talisman’s operations could be aggravating the civil war and causing human rights violations.217 The mission discovered that there was a continuing “major displacement of civilian populations related to oil extraction,” and that bomber aircraft and helicopter gunships that attacked southern Sudanese villages took off

208

Oil Project Loan to Sudan, N.Y. Times, Aug. 20, 1981, at D10; Reuters, Socal to Speed Up Sudan Production, N.Y. Times, Sept. 15, 1982, at D4. Chevron reportedly spent $600 million to discover 200 million barrels of oil in Sudan, and planned to spend over $1 billion more on the pipeline. See Socal-Sudan Deal, N.Y. Times, Jan. 11, 1983, at D5.

209

Alan Cowell, Regional Dispute Divides the Sudan; Nimeiry Move to Subdivide the South Stirs Opposition and Fear of New Civil Strife, N.Y. Times, Feb. 22, 1982, at A7.

210

State of Emergency Is Declared in Sudan, N.Y. Times, Apr 30, 1984, at A3.

211

See Sudanese Rebels Seize Chevron Oil Installation, N.Y. Times, Feb 3, 1984, at A5.

212

See Dagne, supra note 76.

213

See Phillip M. Mobbs, The Mineral Industry of Other Countries of East Africa, U.S. Geological Survey, Mineral Industry Yearbook 1995, at 5, http://minerals.usgs.gov/minerals/pubs/ country/1995/9248095.pdf.

214

See Presbyterian Church of Sudan, 244 F. Supp. 2d at 299–300 (recounting allegations of plaintiffs, which court assumed to be true). See also Arakis Energy, Talisman Agrees to Acquire Arakis (Aug. 17, 1998), http://www.prnewswire.co.uk/cgi/news/release?id=58078.

215

Burr, Genocide, supra note 39, at 83.

216

De Waal, supra note 28.

217

See Phillip M. Mobbs, The Mineral Industry of Sudan – 1999, http://minerals.usgs.gov/ minerals/pubs/country/1999/su99.pdf.

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from an airstrip within the Talisman Energy oil concession.218 In 2000, however, Canada and the United States refused to impose sanctions on Talisman Energy, with Canada preferring a policy of “dialogue.”219 The United States, curiously, imposed sanctions on the Greater Nile Petroleum Operating Co. of Sudan (GNPC), but not on its “international corporate owners,” i.e., “China National Petroleum Corp. (CNPC) (40% equity interest); Petronas Carigali Overseas Shd. Bhd. of Malaysia (30%); and State Petroleum Corp., which was a subsidiary of Talisman Energy Inc. of Canada (25%).”220 In March 2003, Talisman Energy sold its stake in the GNPC for $720 million to an Indian company.221 China succeeded where Chevron and Talisman struggled, for example by dispatching “security personnel to protect their managers and workers.”222 B. Financing Purchases of Weaponry and Militia Supplies Oil exports have also provided the Sudanese regime with the funding to import technologies designed to end human life on a mass scale.223 Sudan’s military and paramilitary forces utilize these technologies, ranging from military aircraft to helicopter gunships to automatic weapons, to carry out genocide against non-Arab populations.224 Sudan’s oil exports began in 1999 and eventually earned it billions of dollars.225 Sudan promptly doubled its military budget with the proceeds.226 218

See Second Amended Compl., Talisman Energy, supra note 214, ¶ 58(b).

219

See Phillip M. Mobbs, The Mineral Industry of Sudan – 2000, U.S. Geological Survey Minerals Yearbook, 1999, available at http://minerals.usgs.gov/minerals/pubs/ country/2000/sumyb00.pdf.

220

Id.

221

See U.S. Department of State, 2003 Sudan Peace Act Report, available at http://www. state.gov/p/af/rls/rpt/2003/19790.htm; Diplomatic Arm-twisting Clears Sudan Oil Deal, The Times of India, Mar. 13, 2003, available at http://timesofindia.indiatimes.com/ articleshow/40190193.cms; Embassy of the Republic of the Sudan to India, Canadian Firm Hopes to Sell 25% Stake in Sudan Oil Project by Month End (2003), http://64.233.167.104/ search?q=cache:EqgOarGzzR4J:www.embassysudanindi a.org/news/11marongc.html.

222

Henry Lee & Dan A. Shalmon, Searching for Oil: China’s Initiatives in the Middle East, 49 Environment 8 (2007).

223

See Government of Canada, Report of the Harker Commission on Talisman Energy Operations in Sudan (2000), http://www.dfaitmaeci.gc.ca/foreignp/3110186-e.pdf; Christian Aid, The Scorched Earth: Oil and War in Sudan (Mar. 2001), available at http://sudanreport.unep.ch/ sudan_website/doccatcher/data/documents/The%20scorched%20earth.pdf.

224

See discussion supra Part II.

225

See Dagne, supra note 76, at CRS-10; U.S. Dep’t of State, 2004 Sudan Peace Act Report (Oil Sector), supra note 221 (“Human Rights Watch reported in late 2003 that Sudan spent more than 60% of its 2001 oil revenues ($580.2 million) to buy weapons”); Jeffrey Gettleman, War in Sudan? Not Where the Oil Wealth Flows, N.Y. Times, Oct. 24, 2006, at A1 (Sudan’s “crude oil production” of “512,000 barrels a day” was “enough to bring billions of dollars”).

226

See Dagne, supra note 76, at CRS-6, CRS-10 (“[With] the new oil revenue . . . the government of Sudan has been acquiring new weapons, especially helicopter gunships and fighter planes,

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A southern Sudanese bishop described oil as a “curse” that was financing government acquisitions of assaul trifles, military vehicles, and other sophisticated weapons.227 For the campaign in Darfur, Sudan’s oil revenues secured “expensive bombers, helicopters, and arms supplies” to bomb civilians and equip militias in violation of human rights.228 The Commission of Inquiry on Darfur noted that the Sudanese air force bombarded villages in Darfur using “Mi-8 helicopters, Mi-24 helicopters and Antonov aircraft . . . .”229 Table 3 charts the rise of Sudan’s oil exports and its military spending during the genocides against the south and Darfur. Table 3 Sudan’s Oil Exports and Military Spending, 1999–2006 Year

Oil Revenue ($US)

Military Spending ($US)

Source

1999

$0.06 billion

$242 million

Human Rights Watch230

2000

$0.55 billion

$250.9 million

Human Rights Watch231

2001

$0.57 billion

$345 million

Human Rights Watch232

2002

$1 billion

$312.7 million

Human Rights Watch,233 The New York Times234 Continued

from Russia and other countries. Critics maintain that the government of Sudan is using these newly acquired weapons to terrorize civilian populations, especially in the oil fields.”). 227

Online NewsHour: Sudan’s Troubles, PBS, July 25, 2001, available at http://www.pbs.org/ newshour/bb/africa/july-dec01/sudan_7-25.html.

228

Amnesty Int’l, Sudan: Arming the Perpetrators of Grave Abuses in Darfur, AI Index Number AFR 54/139/2004 (Nov. 16, 2004), available at http://web.amnesty.org/library/ index/engafr541392004. See also Ronan Farrow & Mia Farrow, The ‘Genocide Olympics’, Wall St. J., Mar. 28, 2007, , at A17, available at http://maloof.wordpress.com/2007/04/01/ the-genocideolympics-by-ronan-and-mia-farrow.

229

ICID Report, supra note 4, at ¶ 243; Human Rights Watch, Sudan: Government Offensive Threatens Darfur Civilians (Apr. 26, 2006), available at http://hrw.org/english/docs/2006/04/26/ sudan13276.htm; Human Rights Watch, World Report 2006: Sudan 140 ( Jan. 11, 2007), available at http://hrw.org/englishwr2k7/docs/2007/01/11/sudan14715.htm.

230

Human Rights Watch, Sudan, Oil, and Human Rights (2003), tbl. 1, http://www.hrw.org/ reports/2003/sudan1103/21.htm

231

See id.

232

See id.

233

See id.

234

Id. See Warren Hoge, U.S. Proposes a Softer Threat on Sudan’s Oil, N.Y. Times, Sept. 15, 2004, at A13.

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Table 3 Sudan’s Oil Exports and Military Spending, 1999–2006 (cont’d) Year

Oil Revenue ($US)

Military Spending ($US)

Source

2003

$2 billion

Unknown

THE TIMES (U.K.)235

2004

$3 billion

Unknown

Toronto Star236

2005

$4 + billion

$733 million

Oil-ECOS237 Military-U.S. CIA238

2006

$6.3 billion

$733 million

Oil-Foreign Affairs239 Military-U.S. CIA240

Although oil is not considered to be as important a factor behind th e violence in Darfur as it is in the violence surrounding the GNPC oilfield, Darfur is also expected to contain significant oil deposits, which Chinese and British interests have paid millions to explore.241 After the arrival of Chinese corporations in Sudan, the country switched from being an oil importer to being an exporter of $2 billion in oil annually.242 Chinese corporations have invested about $10 billion in Sudan’s energy industry.243 Indeed, in 2005, Sudan received more Chinese “investment” 235

See Michael Dynes, Warring Factions Agree Sudan Peace, The Times (U.K.), May 27, 2004, at 24. See also Facts About Africa’s Largest Country, China Daily, May 28, 2004.

236

Editorial, Ease Sudan’s Crisis, The Toronto Star, July 2, 2004.

237

European Coalition on Oil in Sudan, Fact Sheet II: The Economy of Sudan’s Oil Industry (Oct. 2007), at 9, http://www.ecosonline.org/back/pdf_reports/2007/Oil/ ECOS%20factsheetII%20October%202007.pdf. But cf. David Blair, Darfur Bleeds in the Great Scramble for Sudan’s Oil, The Daily Telegraph (U.K.), Feb. 8, 2006, at 17 (2005 oil revenues of $1.7 billion).

238

See U.S. Central Intelligence Agency, The World Factbook: Sudan (2007), https://www.cia.gov/ library/publications/the-world-factbook/print/su.html [hereinafter CIA World Factbook: Sudan].

239

David Blair, Oil Seals Friendship for China and ‘Rogue’ Sudan, The Daily Telegraph (U.K.) Feb. 2, 2007, at 19. But cf. John Prendergast & Colin Thomas-Jensen, Blowing the Horn, Foreign Affairs, Mar. –Apr. 2007, at 59 ($4 billion).

240

See CIA World Factbook: Sudan, supra note 238.

241

See Chandra Lekha Sriram, Forum: China, Human Rights and the Sudan, Jurist ( Jan. 30, 2007), http://jurist.law.pitt.edu/forumy/2007/01/chinahuman-rights-and-sudan.php; David Leigh & Adrian Gatton, Briton Named as Buyer of Darfur Oil Rights, The Guardian (U.K.), June 10, 2005, http://www.guardian.co.uk/sudan/story/0,14658,1503470,00.html.

242

See European Coalition on Oil in Sudan, supra note 237.

243

See Khartoum Character, Investor’s Business Daily, April 17, 2007, at A3; Samuel Hoff, Genocide in Sudan Must Be Halted Immediately, The News Journal (DEL.), Apr. 25, 2006, at 7A.

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than any other African country.244 About 20% of Sudan’s imports originate in China; Sudan’s other major trading partners are Saudi Arabia and Japan.245 In exchange for its investments and political and military alliance with Sudan, China is securing increasing control over Sudan’s oil industry. For example, China bought seventy percent of Sudan’s exports in 2006.246 The CNPC, which is owned by the Chinese government, controls ninety-five percent of Block 6, a particularly large oil concession that includes territory within the Darfur region247 and could be worth billions of dollars over time.248 Additionally, along with Saudi Arabia, China has exported arms to Sudan in violation of U.N. arms embargos.249 During the genocide in southern Sudan, indigenous African rebels captured government bases, and found “large numbers of relatively new Chinese arms and ammunition,” including tanks, howitzers (artillery), antipersonnel mines, machine guns, and ammunition.250 Chinese engineers reportedly helped Sudan build factories for tanks, military vehicles, rocket-propelled grenades, and heavy weapons.251 In defiance of U.N. sanctions implemented in 2005 to

244

See Laura Macinnis, Sudan Top Target for Chinese Investment in Africa, Reuters, Mar. 27, 2007, http://africa.reuters.com/wire/news/usnL27206739.html. China’s economic ties with Sudan extend beyond Sudanese exports of oil to China. Among other China-Sudan trade, China is building the “largest hydro-electric project” in all of Africa in association with Sudan, a project valued at approximately $2 billion and capable of doubling Sudan’s electricity supply. Agence France Presse, supra note 3; see also Power of Displacing People, Fin. Times, Mar. 14, 2007, available at http://archive.gulfnews.com/articles/07/03/14/10110878.html. Saudi Arabia has also exported arms to Sudan in potential violation of U.N. arms embargos. See Victor T. Le Vine & Ruth Iyob, Region Requires Forceful Response, St. Louis Post-Dispatch, Oct. 8, 2006, at B6. Like China, it has been a prominent player in the failure by the U.N. Human Rights Council to condemn the genocide in Darfur. See Pablo Bachelet, Group Critical of Rights Panel, Miami Herald, Jan. 12, 2007; China, Russia seek to block UN report on Darfur, Reuters, Mar. 19, 2007, http://www.savedar fur.org/ne wsroom/c lips/china_r ussia_seek_to_bloc k_un_ report_on_darfur/.

245

See CIA World Factbook: Sudan, supra note 238.

246

See Small Arms Survey, Arms, Oil, and Darfur 7 (2007), http://64.233.169.104/search?q= cache:zcVjwucTnd8J:www.smallarmssurvey.org/files/portal/spotlight/sudan/Sudan_pdf/ SIB%25207%2520Arms.pdf.

247

Human Rights Watch, Sudan, Oil, and Human Rights, supra note 230. The European Coalition on Oil in Sudan (ECOS), Oil Development inNorthern Upper Nile, Sudan (2006).

248

See U.S. Department of Energy, Energy Information Administration, Sudan (2007), http:// www.eia.doe.gov/emeu/cabs/Sudan/Oil.html.

249

See Sriram, supra note 241; Le Vine & Iyob, supra note 245, at B6.

250

Small Arms Survey, supra note 246, at 5.

251

See id. A report issued after 2006 by a U.N. Panel of Experts documented that the ammunition being used in the Darfur was manufactured either in Sudan or in China. See id.

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prohibit arms sales to the government of Sudan as well as anti-government rebels,252 Chinesecorporations exported arms and ammunition worth $24 million to Sudan in 2005, as well as aircraft parts and equipment worth $57 million, and helicopter and airplane parts worth $2 million.253 Amnesty International condemned China for helping Sudan violate the arms embargo.254 China even “built several munitions factories for the Sudanese government, in part to avoid being accused of exporting arms to Sudan.”255 Arms factories near Khartoum produce “ammunition, light infantry weapons, military vehicles and Sudanese versions of the T-55 tank, seen in Darfur, for the Sudanese armed forces.”256 The Chinese government has repeatedly blocked U.N. Security Council resolutions that would have condemned or intervened against genocide in Darfur.257 A panel established by the U.N. Security Council in 2005 to consider sanctions against Sudanese leaders failed even to recommend any sanctions, as China, Russia, and the Gulf Arab state of Qatar “opposed efforts to impose sanctions on members of Khartoum’s government.”258 The U.N. arms embargo on the parties to the conflict in Darfur was so ineffectual that it did not stop China from arming Sudanese troops to guard Chinese energy installations, or from providing Sudan with “tanks, aircraft, helicopters and other weapons . . . to clear civilians and rebels from oil-fields rich in petroleum.”259 The U.N. sanctions committee reported in late 2007 that Darfur continued to be bombed by the government, that weapons continued to be shipped into Darfur 252

See S.C. Res. 1591 ¶¶ 1, 7, S/RES 1556 (Mar. 29, 2004) (condemning the Government of Sudan’s air strikes in Darfur and its failure to disarm “Janjaweed militiamen and apprehend and bring to justice Janjaweed leaders and their associates who have carried out human rights and international humanitarian law violations and other atrocities,” and acting under Chapter VII of the UN Charter to establish an arms embargo against “all the parties to the N’djamena Ceasefire Agreement and any other belligerents in the states of North Darfur, South Darfur and West Darfur,” which includes the Government of Sudan unless it seeks prior approval from a sanctions committee to move arms or materiel into Darfur).

253

See Amnesty International, Sudan: Arms Continuing to Fuel Serious Human Rights Violations in Darfur, supra note 142. The Russian Federation also exported $21 million worth of aircraft and associated equipment to Sudan in 2005, as well as $13.7 million of helicopters. See id.

254

See id.

255

Lee & Shalmon, supra note 222.

256

Amnesty Int’l, Sudan: Arms Continuing to Fuel Serious Human Rights Violations in Darfur, supra note 142.

257

See Agence France Presse, China Offers Aid For ‘Peaceful Resolution’ of Darfur Conflict, Sudan. Net, Feb. 2, 2007, available at http://209.85.165.104/search?q=cache:oyxFbYv_dQoJ:www. sudan.net/news/posted/14064.html.

258

Colum Lynch, Sanctions Against Sudanese Officials Sought Over Darfur, Wash. Post, Feb. 23, 2006, at A20.

259

Blood for Oil, Investor’s Bus. Daily, May 2, 2005, http://www.investors.com/editorial/editorialcontent.asp?secid=1501&status=article&id=156744&secure=2799.

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on an airplane disguised as a U.N. flight, and “that widespread violations of international humanitarian law and human rights law continued with impunity in Darfur.”260 Despite its findings, however, the U.N. failed to tighten the sanctions.261 IV. RESPONSES TO GENOCIDE: CRIMINAL TRIBUNALS OR REPARATIONS? A. Criticisms of the Criminal Law Focus of International Law The failure of the international community to deter governments from engaging in genocide has not been principally a failure of international criminal law. If criminal sanctions could deter government officials from implementing genocide as a solution to their nations’ political and economic problems, the trial and sentencing of several heads of state and high officials over the past century should already have achieved this goal.262 Legal scholars have questioned whether international criminal tribunals are sufficient or even helpful, standing alone, as deterrents to genocide. Among other problems with criminal deterrence, leaders often positively embrace their own and their subordinates’ sacrifices for the benefit of the nation; military command structures

260

Security Council Committee Established Pursuant to Resolution 1591, Annual Report, S/2007/779, ¶¶ 13, 25, 27 (Dec. 31, 2007), http://daccessods.un.org/access.nsf/Get?OpenAg ent&DS=S/2007/779&Lang=E&Area=UNDOC.

261

Id. ¶ 27.

262

See Prosecutor v. Jean Kambanda, Case No. ICTR 97-23-S, Trial Chamber, Judgment (Sept. 4, 1998), http://www.un.org/ictr/english/judgements/kambanda.html, aff ’d Case No. ICTR 97-23-A, Appeals Chamber, Judgment (2000), http://69.94.11.53/ENGLISH/cases/ Kambanda/judgement/191000.htm; Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, Amended Indictment (Bosnia) (2002), available at http://www.un.org/icty/indictment/ english/milai040421-e.htm; Judgment: Goering, supra note 195; Judgement: Bormann, supra note 195; Judgement: Rosenberg, supra note 195; Judgement: Ribbentrop, in Judgment of the International Military Tribunal for the Trial of German Major War Criminals (1946) available at http://www.yale.edu/lawweb/avalon/imt/proc/judribb.htm; Judgment: Streicher, in Judgment of the International Military Tribunal for the Trial of German Major War Criminals (1946), available at http://www.yale.edu/lawweb/avalon/imt/proc/judstrei.htm; Saddam’s YouTube Execution, Red Herring, Dec. 30, 2006, available at http://www.redherring.com/ Article.aspx?a=20519; Kirk Semple, Iraqi Court Sentences Saddam to Death, Int’l Herald Trib., Nov. 5, 2006, available at http://www.iht.com/articles/2006/11/05/news/saddam.php; International Criminal Tribunal for the Forrmer Yugoslavia, Press Release, Slobodan Milosevic Found Dead in His Cell at the Detention Unit (2006), available at http://www.un.org/icty/ pressreal/2006/p1050-e.htm; Miki Y. Ishikida, Toward Peace: War Responsibility, Postwar Compensation, and Peace Movements and Education in Japan 15–16 (2005); Vahakn N. Dadrian, The Documentation of the World War I Armenian Massacres in the Proceedings of the Turkish Military Tribunal, 23 Int’l J. of Middle East Studies 549, 556, 561–62, 575 (1991); Gerard Chaliand, Prologue to Jacques Derogy, Resistance and Revenge: the Armenian Assassination of the Turkish Leaders Responsible for the 1915 Massacres and Deportations (1990), available at http://www.macalester.edu/courses/ intl345/docs/derogy.pdf.

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complicate individual cost-benefit calculations; the sheer numbers of soldiers and instigators of massacres create such a mob-like mentality that punishing all perpetrators is impossible; state-sanctioned hatred and mass violence resist rational analysis and deliberation; and criminal trials may themselves valorize perpetrators of genocide as national or ethnic martyrs.263 Moreover, empirical research into the effect of the death penalty in the United States has shown that only large-scale executions will deter murder, and that small numbers of executions merely brutalize the population by fomenting an atmosphere of revenge-killing, thereby increasing rather than decreasing the murder rate in U.S. states that execute small numbers of offenders.264 The persistence of genocide despite successful criminal convictions and private justice against architects of genocide from Talaat Pasha to Saddam Hussein indicates that the international community may need to pay more attention to collective, rather than individual, responsibility for genocide, and to economic, rather than criminal, disincentives to genocide. B. The Case for Ensuring that Reparations Be Paid to Genocide Victims Despite the relative infrequency until recent years of cases seeking civil compensation for genocide, international law is fairly clear, when it is properly and impartially construed, that such compensation must be paid.265 For this reason, the International Court of Justice has “observe[d] that it is well established in general international law that a State which bears responsibility for an internationally wrongful act is under an obligation to make full reparation for the injury caused by 263

For a sense of the literature over the past decade questioning the deterrent effect of penal sentences handed down by international criminal tribunals, in roughly chronological order, see Theodor Meron, From Nuremberg to the Hague, 149 Mil. L. Rev. 107, 110–11 (1995); Jose E. Alvarez, Rush to Closure: Lessons of the Tadic Judgment, 96 Mich. L. Rev. 2031, 2079–80 (1998); Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7, 9–13, 30–31 (2001); Diane Marie Amann, Assessing International Criminal Adjudication of Human Rights Atrocities, 2000–2003 Third World Legal Stud. 169, 173–74; Laurel E. Fletcher and Harvey M. Weinstein, Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation, 24 Hum. Rts. Q. 573, 579–80, 592 (2002); Allison Danner & Jenny Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 Cal. L. Rev. 75, 147–48 (2005); Mark Drumbl, Collective Violence and Individual Punishment: The Criminality of Mass Atrocity, 99 NW. U. L. Rev. 539, 589–91 (2005); Jenia Iontcheva, Nationalizing International Criminal Law, 41 Stan. J. Int’l L. 1, 25 (2005); Mark Osiel, The Banality of Good: Aligning Incentives Against Mass Atrocity, 105 Colum. L. Rev. 1751, 1770 (2005).

264

See Joanna M. Shepherd, Deterrence Versus Brutalization: Capital Punishment’s Differing Impacts Among States, 104 Mich. L. Rev. 203, 206–07, 247–48 (2005).

265

See Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 ICJ Lexis 1, ¶ 259 (Dec. 2005) [hereinafter Congo Case]; U.N. Comm. on Human Rights, Human Rights Res., Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, U.N. Doc. E/CN. 4/2005/L. 48 (Apr. 13, 2005), available at http://www. icj.org/IMG/pdf/UNRemedyReparation.pdf.

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that act.”266 Such reparations must compensate for all “damage caused to all natural or legal personsconcerned”267 and, “as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.”268 International human rights instruments also require that individuals be made whole for violations of their rights by their governments. For example, the International Covenant on Civil and Political Rights, which Sudan ratified in 1986,269 states that any person whose rights are violated “shall have an effective remedy. . . .”270 Under international law, this notion of an “effective remedy” entails a thorough investigation, punishment of the guilty, and the payment of compensation.271 Similarly, the African Charter on Human and People’s Rights.272 states that peoples despoiled of their wealth and natural resources “shall have the right to the lawful recovery of [their] property as well as to an adequate compensation.”273 Sudan has ratified this code of human rights.274 Under these authorities, the primary objective of international human rights law is “to protect thevictims and to provide for the reparation of damages.”275 Despite the abundance of international law on the subject, courts and tribunals have been extremely slow to impose economic penalties for genocide, and when penalties do come, they rarely make victim communities whole. This may explain

266

Congo Case, supra note 265, ¶¶ 259, 345, 2005 ICJ LEXIS 1, *202, 254 (citing, inter alia, Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004, at 59, ¶ 119).

267

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ¶ 152, 2004 ICJ LEXIS 20 ( July 9) (quoting Factory at Chorzow, Merits, Judgment No. 13, 1928 P.C.I.J. (ser. A) No. 17, at 47).

268

Id. (quoting Factory at Chorzow, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 47.).

269

Amnesty Int’l, Sudan: 1.2 Million Internally Displaced People at Risk in Darfur ( July 1, 2004), available at http://web.amnesty.org/library/Index/ENGAFR540782004?open&of=ENG-2AF.

270

International Covenant on Civil and Political Rights, Art. 2(3), Dec. 16, 1966, 999 U.N.T.S. 171, 174.

271

Mentes v. Turkey, 37 I.L.M. 858, 882 (Eur. Ct. Hum. Rts. Nov. 28, 1998); see also Klint A. Cowan, International Responsibility for Human Rights Violations by American Indian Tribes, 9 Yale Hum. Rts. & Dev. L.J. 1, 27–28 (2006).

272

African (Banjul) Charter on Human and Peoples’ Rights, art. 21 ( June 27, 1981), 21 I.L.M. 58 (1982), available at http://www1.umn.edu/humanrts/instree/z1afchar.htm.

273

Id. at art. 21 ( June 27, 1981), 21 I.L.M. 58 (1982), available at http://www1.umn.edu/humanrts/instree/z1afchar.htm.

274

Amnesty Int’l, Sudan, Darfur: “Too Many People Killed,” supra note 92.

275

Velasquez Rodriguez v. Honduras, Judgment, Inter-Am. Ct. Human Rights (ser. C) No. 4, at ¶ 134 ( July 29, 1988), available at http://www.javierleon- diaz.com/enforced_disappearances/ Velasquez%20Rodriguez.pdf

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why governments and peoples engage in genocide with such regularity. Victims of Japan’s occupation, mass murder, and enslavement of Asian populations during World War II have received very little in reparations payments, compared to what they have lost.276 Few of the victims of other masskillings, including those in Indonesia, Pakistan, Cambodia, Guatemala, Iraq, Bosnia, Rwanda, and the Congo, have received substantial compensation for their losses.277 The main exception to this rule is Germany, which finally, by 1998, paid out roughly US$60 billion in reparations to Holocaust victims; however, even Germany paid “very little”

276

See Michael J. Bazyler, The Holocaust Restitution Movement in Comparative Perspective, 20 Berkeley J. Int’l L. 11, 32 (2002). Japan never paid reparations to China, the principal victim of its colonial and genocidal policies during World War II. See Kitaoka Shinichi, Answering China’s Japan Bashers (Part 2 of 3), Japan Now, Vol. 1, No. 2 (2005), available at http://www. us.emb-japan.go.jp/jicc/EJN_no2.htm ( Japan never paid reparations to China); Maria Hsia Chang, return of the Dragon: China’s Wounded Nationalism, at 80–83 (2001) (China lost 10 to 20 million people and $100 billion to Japan’s attacks). But cf. Jane Jila Simmons, Japan’s Foreign Aid to China Conundrum, 22(2) ABAC Journal, May 2002, at 2–3 http://www. journal.au.edu/abac_journal/2002/may02/article1_may02.pdf (China “became the top recipient of Japanese aid” in 1980s and 1990s, but aid was motivated by export-promotion and national security as well as “compensation for wartime damages”); Melinda Liu & Christian Caryl, Asia: Furies Unleashed, Newsweek, April 25, 2005, available at http://www.msnbc.msn. com/id/7529463/site/newsweek/ ( Japan distributed $34 billion in development aid to China through 2005). Japan did pay reparations to Burma, Indonesia, the Philippines, Vietnam, and South Korea, but only in the amount of about $1.3 billion not counting loans, or about $300 for each of the at least four million people it killed in these countries, assuming that neither purely economic losses nor any of the estimated 125 million rapes committed by Japanese troops were compensated. See Larry A. Niksch, Congressional Research Service Report, Japan’s World War II Reparations: A Fact Sheet, (Mar. 7, 1991), available at http://digital.library.unt. edu/govdocs/crs//data/1991/upl-metacrs13/91216f_1991Mar07.txt?PHPSESSID=2b22e6d 689c8dbf0ef09975067b65 fee (noting that Japan paid about $1.3 billion in reparations to Burma, Indonesia, the Philippines, and South Korea, and “minor” amounts to Vietnam, Cambodia, and Laos); Mikio Sumiya, A History of Japanese Trade and Industrial Policy 237 (2001) ( Japan paid only $39 million in reparations to Vietnam); Herbert P. Bix, Hirohito and the Making of Modern Japan 657, 690 (2000) (stating that Japan claimed 2 million victims in Vietnam and 1 million in the Philippines).

277

See, e.g., Joseph Nevins, a Not-So-Distant Horror: Mass Violence in East Timor 178 (2005) (East Timor); Louise Krabbe Boserup, Human Rights in Development 2001 Reparations: Redressing Past Wrongs 64 (2003) (East Pakistan/Bangladesh); Victor D. Montejo, Maya Intellectual Renaissance: Identity Representation, and Leadership 196–97 (2005) (Guatemala); Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment 459–470 (I.C.J. 26 Feb. 2007), available at http://www.icj-cij.org/ docket/index.php?p1=3&PHPSESSID=f63dc11009628f59386d98e083651b4e&case=122& code=ybh&p3=4 (Bosnia); Drumbl, supra note 263, at 1271 n.232 (Rwanda). The compensation process for dispossession of Kurdish properties has begun in Iraq, but the amounts awarded have been criticized as inadequate and too slow in coming. See Internal Displacement Monitoring Centre, Iraq: Sectarian violence, Military Operations Spark New Displacement, As Humanitarian Access Deteriorates (May 23. 2006), available at http:// www.icmc.net/pdf/ idmc_report_iraq.pdf.

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in individual compensation in the first decade after 1945.278 It was only starting in the late 1990s, after fifty years of little to no redress, that many victims of Nazi genocide and slave labor received compensation in U.S. courts.279 C. Exploring Alternative Mechanisms for Genocide Reparations in Sudan Over the past few years, the victims of genocide in Darfur have seen their prospects for compensation improve, albeit only very marginally. On May 5, 2006, two years of diplomacy by the AfricanUnion, the United States, the European Union, and the Arab League culminated in the Darfur Peace Agreement (DPA).280 Abdel Wahid al-Nur, the leader of the “main part” of the Sudan Liberation Army, including most of its Fur members, and the movement’s founder, refused to sign the agreement, characterizing its $30 compensation fund for genocide victims as paltry, the provisions for disarmament of the Janjaweed as toothless, and the continued exclusion of Darfurians from legislative and executive power as intolerable.281 Minni Minawi, a leader of a mostly Zaghawan faction of the Sudan Liberation Movement, did sign the DPA. Predictably, the implementation of the DPA has been lacking. The African Union took on the responsibility of overseeing the implementation, but established no plan for disarming the Janjaweed and monitoring the decommissioning process.282 Six months after the signing of the agreement, no disarmament had occurred, the Janjaweed were receiving even more weapons than before,283 and the government of Sudan had breached its promise under the DPA to provide $500 million in reconstruction aid to the Darfur region.284

278

Paul R. Dubinsky, Justice for the Collective: The Limits of the Human Rights Class Action, 102 Mich. L. Rev. 1152, 1189 (2004).

279

See id. at 1157, 1164; Bazyler, supra note 276, at 12, 15–25, 36–37 ($8 billion in payouts).

280

U.S. Department of State, Darfur Peace Agreement (2006), http://www.state.gov/r/pa/prs/ ps/2006/65972.htm.

281

Alex de Waal: ‘I Will Not Sign’: Alex de Waal Writes About the Darfur Peace Negotiations, Nov. 30, 2006, London Rev. of Books, http://www.lrb.co.uk/v28/n23/waal01_.html.

282

See id.

283

See id; see also Amnesty International, Sudan: Arms Continuing to Fuel Serious Human Rights Violations in Darfur, supra note 142; Sudan Has Failed to Cooperate, supra note 138; Sudan Presidential Aide Briefs UN, AU Envoys on Progress of Darfur Peace Process, BBC Monitoring Middle East - Solitical, Feb. 13, 2007.

284

See Backgrounder: Darfur’s Peace Proces, N.Y. Times, June 18, 2007, http://www.nytimes.com/ glogin?URI=http://www.nytimes.com/cf r/wor ld/slot3_20070618.html&OQ=_ rQ3D1&OP=d15a620Q2FeqHPeQ5B_Q27mp__IjeQ27apeq_pQ7BQ5BemQ7B_ IQ7DQ22jQ3CQ3CEQ3CM3s)TIQ24Q7 B; Sudan Not Making Payments to Darfur Fund, Sudan Tribune, Feb. 18, 2008, http://www.sudantribune.com/spip.php?article26034.

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Leaders of the Fur people, as well as U.N. and U.S. officials, have questioned the existence and adequacy of the compensation under the DPA.285 At least one student of the situation in Darfur has notedthat, even if $30 million in compensation were paid, that amount divided among the four million people who have suffered from the government’s policies would amount to less than $8 per person.286 He notes that Darfurians living in displaced persons camps felt “tremendous anger” at being asked to accept such a pittance for all that they had suffered.287 In any event, the compensation is unlikely to be paid. Most of the victims are scattered among refugee and IDP camps and have little capacity to file whatever forms will be required, and the Sudanese government has a long history of establishing tribunals for prosecuting crimes or compensating victims, but allowing very few actual cases to proceed.288 Proceeding on the sound assumption that voluntary agreements between the Sudanese government and representatives of the Fur, Masalit, and Zaghawa peoples will fail to achieve adequate compensation, the international community must take the lead in assuring that the government fulfills its obligation to pay reparations. The world should do this for two reasons: first, to ensure the survival of the groups subjected to genocide in Darfur, and second, to deter the government and Janjaweed from continuing to exterminate members of minority ethnic and religious groups with the intention of stealing their land, water and mineral resources, and cattle. People from Darfur frequently lack homes to sleep in or water to drink, and sometimes eat tree bark in a desperate bid to stay alive.289 The Holocaust litigation in the United States has already demonstrated the possibility that legal 285

See Nigerian President Warns of “Near Genocide” in Darfur, BBC Monitoring Africa – Rolitical, Oct. 12, 2006; Brookings-Bern Project on Internal Displacement Discussion; Subject: International Policy Toward Darfur (remarks of Jean-Marie Guehenno, Undersecretary-General, United Nations, Peacekeeping Operations), Federal News Service, Nov. 20, 2006; Dr. Al-Khalifa Holds UN Responsible for Delay, Suna News Agency, Nov. 26, 2006; Andrew Natsios, Special State Department Briefing by the President’s Special Envoy on Sudan, Federal News Service, Nov. 20, 2006 (victims say $30 million is insufficient to rebuild damaged farms and cattle stocks).

286

VOA News: Peace Eludes Darfur, US Fed News, Nov. 29, 2006.

287

Id.

288

See Sima Samar, Report of the Special Rapporteur on the Human Rights Situation in the Sudan, U.N. Commission on Human Rights, 62nd Sess., Item 19 of the Provisional Agenda, Advisory Services And Technical Cooperation in the Field of Human Rights, E/CN.4/2006/111, ¶¶ 44–49, 79 (11 Jan. 2006), available at http://unbisnet.un.org:8080/ipac20/ipac.jsp?session= 1L05392IK7144.21469&profile=bib&uri=full=3100001~!794425~!9&ri=1&aspect=alpha& menu=search&source=~!horizon.

289

700,000 Lack Access To Clean Water in Darfur, Unicef UK News (25 May 2004), available at http://www.unicef.org.uk/press/news_detail_full_story.asp?news_id=288; Charlotte Sector, Aid Worker Fears ‘Disaster of Biblical Proportions’ in Darfur, ABC News (Mar. 31, 2006), available at http://abcnews.go.com/International/story?id=1786781&page=2.

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institutions could compensate victims and contribute to the survival of destitute survivors of genocide, notably elderly Holocaust survivors living in the former Soviet Union.290 Reparations payments, unlike criminal prosecutions, “provide at least the possibility that victims may be compensated for lost property, for injuries suffered, or for emotional distress caused.”291 From a deterrence perspective, the chief prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda has called on the U.N. Security Council to “to break this cycle of violence” in Darfur by assessing reparations.292 He argued that forming a “trust fund” out of a portion of Sudan’s oil revenues to compensate the victims, provide humanitarian relief, and rebuild destroyed villages, would provide a “strong incentive for Khartoum to admit a UN-authorized protection force and to cooperate with the International Criminal Court.”293 Without strong action by the international community to penalize the Sudanese government, it “has no incentive to stop its current campaign of atrocities.”294 Thus, both Human Rights Watch and Amnesty International have called for a compensation fund for Darfur’s victims to be financed by oil revenues.295 A precedent exists for such a compensation fund in the U.N. Compensation Commission (UNCC), established after Iraq’s war with Kuwait by U.N. Security Council Resolution 687.296 The U.N. required Iraq to pay compensation to persons affected by the war with Kuwait, up to a limit of “30 per cent of the annual value of the exports of petroleum and petroleum products from Iraq.”297 The UNCC, operating as a subsidiary of the U.N. Security Council, paid out over $21.8 billion in reparations to Kuwaiti, Saudi, Jordanian, Palestinian, Israeli, and American

290

See Dubinsky, supra note 278, at 1179.

291

John F. Murphy, Civil Liability for the Commission of International Crimes as an Alternative to Criminal Prosecution, 12 Harv. Hum. Rts. J. 1, 48 (1999).

292

Richard Goldstone, An ‘Oil-for-Food’ Program for Darfur, Int’l Herald Trib., June 12, 2007, http://www.iht.com/articles/2007/06/12/opinion/edgold.php.

293

Id.

294

Nick Grono & John Prendergast, To Halt Sudan’s Atrocities, Follow the Money, Int’l Herald Trib., Aug. 22, 2006, available at http://www.iht.com/articles/2006/08/21/opinion/ edgrono.php.

295

See Human Rights Watch, UN: Create Darfur Recovery Fund for Sudanese Oil Revenues (Mar. 16, 2007), http://www.hrw.org/english/docs/2007/03/19/sudan15517.html; Human Rights Watch, Sudan; Darfur Demands Sanctions, Not Words, Africa News, Dec. 12, 2006; Amnesty International, Darfur: “Too Many People Killed,” supra note 92.

296

See S/RES/687 (1991), available at http://www.fas.org/news/un/iraq/sres/sres0687.htm.

297

S/RES/705 ¶ 2 (1991), available at http://www2.unog.ch/uncc/resolutio/res0705.pdf. The percentage was reduced to 25 percent in December 2000. See Office of the Director of Central Intelligence, Comprehensive Report of the Special Advisor to the DCI on Iraq’s WMD (2004), available at https://www.odci.gov/cia/reports/iraq_wmd_2004/ chap2_annxD.html.

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corporations and citizens.298 The UNCC apparently intends to distribute $30 billion more, for over $50 billion in total compensation paid out of the Iraqi people’s oil resources.299 A compensation fund for genocide victims in Darfur would actually be much more justifiable than the UNCC turned out to be, for several related reasons. First, while many Kuwaitis died in the Iraq war, they were not victims of genocide. Estimates place the number of victims somewhere between a few hundred and 10,000, a ratio of one Kuwaiti victim for every fifty to 1,000 Darfurian victims.300 Second, the people of Kuwait remained wealthy by regional standards despite the war with Iraq, and therefore, were in much less need of compensation than the destitute civilians of Darfur.301 Third, the vast majority of UNCC awards represented lost revenues or profits that might have been earned by corporations, among them a $15.9 billion award to the Kuwait Petroleum Corporation, rather than payments to the survivors of war victims or to persons who lost their homes or limbs.302 Fourth, the UNCC administered a fund payable out of revenues that otherwise would have fed, clothed, and provided medical care to victims of genocide inside Iraq. For example, the Kuwait Petroleum Corporation received twice as much as the $10 billion in Iraqi oil revenues that was allocated between 1996 and 2000 for the nutrition and other survival needs of the entire population of Iraq.303 Victims of genocide in Iraq who might have benefited from these funds included the Kurdish and Assyrian 298

See UNCC, At a Glance (2007), available at http://www.unog.ch/uncc/ataglance.htm; UNCC, Opening of the Sixty-Second Session of the UNCC Governing Council (16 Feb. 2007), available at http://www2.unog.ch/uncc/pressrel/pr_62o.pdf; UNCC, United Nations Compensation Commission Governing Council Has Concluded Its Sixty-First Session (3 Nov. 2006), available at http://www2.unog.ch/uncc/pressrel/pr_61c.pdf; UNCC, Opening of the Fifty-Sixth Session of the UNCC Governing Council (24 June 2005), available at http://www2.unog.ch/uncc/pressrel/ pr_56o.pdf.

299

UNCC, Opening of the Sixty-Second Session, supra note 298.

300

See Human Rights Watch, Iraq and Occupied Kuwait, in Human Rights Watch World Report 1990, available at http://www.hrw.org/reports/1990/WR90/MIDEAST.BOU-03. htm#P200_49710 (citing estimates of 600 victims in first three months of Iraqi occupation of Kuwait); Judith Miller, Standoff in the Gulf; Atrocities by Iraqis in Kuwait: Numbers Are Hard to Verify, N.Y. Times, Dec. 16, 1990, at 1–1 (citing Kuwaiti estimates of up to 7,000 victims).

301

See Kuwait, in CIA World Factbook 1992, available at http://es.rice.edu/projects/Poli378/ CIA_Factbook/kuwait.html (Kuwait had per capita GDP of $11,100 in 1992); Kuwait, in CIA, World Factbook 2006, available at http://www.cia.gov/cia/publications/factbook/ print/ku.html (Kuwait had per capita GDP of nearly $23,000 in 2005).

302

See Alain Gresh, A Debt of Dishonour; Oil for Food: The True Story, Le Monde Diplomatique, Oct.2000,available at http://www.globalpolicy.org/security/sanction/iraq1/oilforfood/00gresh. htm; UNCC Governing Council, Report and Recommendations Made by the Panel of Commissioners Concerning Part Three of the Third Instalment of “F3” Claims, S/AC.26/2003/15, ¶ 419 (26 June 2003) ($16 billion awarded for lost profits).

303

See Gresh, supra note 302. See also Denis J. Halliday, The Impact of UN Sanctions on the People of Iraq, 28 J. of Palestine Stud. 29, 31 (1999) (only $2.6 billion available to import food in Iraq each year during sanctions period).

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survivors of the 1980s Anfal campaign.304 Fifth, the UNCC was part of a sanctions regime that reduced civilian rations for food and other essentials below subsistence levels, thereby contributing to a 160 percent increase in child mortality in Iraq,305 and to huge declines in life expectancy, nutrition, health care, and access to education.306 In contrast, a properly-executed compensation mechanism for genocide victims in Darfur could improve rations and reduce mortality. Finally, the UNCC wasted billions of dollars that could have fed Iraqis or compensated Kuwaitis, and spent an astronomical $482 million on administrative costs.307 304

See Al Anfal, Special Verdict Pertaining to Case No 1/C Second/2006, at 22–24 (Iraqi High Tribunal, Second Criminal Court, June 24 2007), http://law.case.edu/grotian-moment-blog/ anfal/opinion.asp (verdict of Iraqi High Tribunal finding that Anfal campaign, starting in 1987, affected “all villages from Iraqi Kurdistan [sic],” with a “toll [that] reached tens of thousands of Kurdish victims between martyrs killed by raids (whether conventional or chemical weapons), or miss[ing] individuals buried in mass graves, found and anonymous, which are known as (The anfalized).”); Michael A. Newton, The Significance of the Anfal Campaign Indictment, in Saddam on trial: Understanding and Debating the Iraqi high Tribunal 220–22 (2006) (estimates of toll of Anfal campaign range from 100,000 to 200,000 deaths, 2,000 to 4,000 villages in northern Iraq destroyed, and deportation of 500,000 Kurds into “barren concrete ‘collective towns’”); Hannibal Travis, “Native Christians Massacred”: The Ottoman Genocide of the Assyrians during World War I, 1.3 Genocide Studies and Prevention 327, 346 (2006) (Iraqi forces killed over 1,000 Assyrians, tortured many Assyrians, and destroyed many Assyrian churches in Anfal campaign). The orders for the Iraqi army’s massacres in northern Iraq did not refer specifically to Kurds, let alone “Kurdistan,” but to “prohibited” villages or “areas,” within which “the armed forces must kill any person or animal present.” Middle East Watch, Genocide in Iraq: the Anfal Campaign against the Kurds 79–84 (1993).

305

See H.C. Graf Sponeck, Sanctions and Humanitarian Exemptions: A Practitioner’s Commentary, 13 Eur. J. Int’l L. 81, 82 (2002). See also Halliday, supra note 303, at 30 (former U.N. assistant secretary-general and humanitarian coordinator for Oil-for-Food Program in Iraq wrote that sanctions caused deaths of 5,000 to 7,000 Iraqi children per month in the 1990s).

306

See U.N. Children’s Fund, Iraq (2008), http://www.unicef.org/infobycountry/iraq_statistics. html (life expectancy in Iraq declined from 63 years in 1990 to 60 years in 2005); Sponeck, supra note 305, at 81–83; Halliday, supra note 303, at 30; Eric Herring, Between Iraq and a Hard Place: A Critique of The British Government’s Case for UN Economic Sanctions, 28 Rev. of Int’l Stud. 39, 51–52 (2002) (mortality rate in north of Iraq where most Kurds live rose in first five years of U.N. sanctions); Abbas Alnasrawi, Iraq: Economic Sanctions and Consequences, 1990– 2000, 22 Third World Q. 205, 209–214 (2001) (describing U.N. sanctions on Iraq as contributing to soaring infant and child mortality rates, deaths of up to 1.5 million people, including more than 500,000 children, and deterioration in access to food, health care, electricity, and education); Mel Lehman, Death by Sanctions: Iraqi Churches Persevere Despite U.N. Embargo, 44 Christianity Today, Oct. 2, 2000, at 29 (describing adverse impact of U.N. sanctions on Iraqi Chaldeans and other Christians).

307

See Colum Lynch, Volcker Probe Faults U.N. Auditors on Iraq, Wash. Post, Jan. 10, 2005, at A14 (UNCC “may have wasted billions”); Stephanie Nebehay, Gulf War Victims Overpaid by $5 Billion – UN Auditors Reuters ( Jan. 9, 2005), available at http://www.odiousdebts.org/odiousdebts/index.cfm?DSP=content&ContentID=12184 (waste, fraud, and overpayments may have totaled $5 billion); Nick Wadhams, Oil-for-food Probe Finds Mismanagement, Associated Press, July 15, 2005, http://www.usatoday.com/news/world/2005-07-16-food-probe_ x.htm; Independent Inquiry Committee Into the United Nations Oil-for-Food

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The U.N. Security Council should establish a mechanism for compensating victims of genocide from Darfur and eastern Chad that incorporates the lessons of the UNCC. The mechanism should focus on compensating victims of genocide for lost family members, health, and homes. The process should not favor large claims for lost corporate profits or business assets as the UNCC did.308 It should also keep administrative costs under control so that reparations are not transformed into a slush fund for bureaucrats and international consultants. And the Sudanese government should be given detailed notice of, and an opportunity to respond to, claims against it, so that waste, fraud, and overpayments do not deplete the fund’s resources.309 If the U.N. does not establish a compensation scheme for Darfur, the focus will likely shift to the U.S. federal courts. These courts have distinguished themselves by serving as the principal forum for victims seeking compensation for the Holocaust, the Yugoslav civil wars, and other mass killings.310 Since 1789, U.S. law has provided a cause of action for a “violation of the law of nations,” in what is often called the Alien Tort Claims Act (“ATCA”), 28 U.S.C. § 1350.311 A leading case in this area stated that an individual may be found liable for genocide or war crimes based on acts of murder, rape, or torture intended to destroy religious or ethnic groups in part, regardless of whether an individual acted on behalf of a state.312 Similarly, the Torture Victim Protection Act of 1991 (“TVPA”)313

Programme, Briefing Paper, Internal Audit Reports on the United Nations Oilfor-Food Programme 9 ( Jan. 9, 2005), http://www.iicoffp.org/documents/IAD%20 Briefing%20Paper.pdf (commission may have made “[m]any very large potential overpayments”). 308

See Dinah Shelton, Remedies in International Human Rights Law 406, 408, 410–12 (2d ed. 2005) (1999) (the UNCC set forth maximum compensation rates of: $5 million for initial awards to corporations for their lost profits, lost property, and increased expenses, compared to the following much lower amounts for individuals: $15,000 for the death of a spouse, child, or parent; $15,000 for dismemberment or permanent disfigurement; $5,000 for torture or sexual assault; or $2,500 for economic losses).

309

Iraq’s government was denied the ability to examine the claims and investigate their veracity, even though it was forced to pay for the administration for the UNCC. See Gresh, supra note 302.

310

See Bazyler, supra note 276, at 15–25; Dubinsky, supra note 278, at 1157, 1164; Michael J. Bazyler & Adrienne Scholz, Holocaust Restitutio Litigation in the United States and Other Claims for Historical Wrongs – An Update, in ACLU International Civil Liberties Report (2003), available at http://www.sdshh.com/ICLR/ICLR_2003/6_bazyler.pdf; Christine Haughney & Bill Miller, Karadzic Told to Pay Victims $745 Million, Wash. Post, Friday, Aug. 11, 2000, at A13.

311

28 U.S.C. § 1350 (1948); see Hilao v. Estate of Marcos, 25 F.3d 1467, 1475 (9th Cir. 1994). Accord Presbyterian Church of Sudan v. Talisman Energy, 244 F. Supp. 2d 289, 320 (S.D.N.Y. 2003) (“ATCA provides a cause of action in tort for breaches of international law.”).

312

Kadic v. Karadzic, 70 F.3d 232, 240, 242 (2d Cir. 1995) (defendant could be found liable for genocide, murder, and torture against part of Bosnian Muslim population).

313

28 U.S.C. § 1350 (2000).

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recognizes that torture or extrajudicial killing gives rise to a private right of action for violation of U.S. law.314 In addition, victims of discriminatory seizures of their property abroad have common-law claims for conversion under U.S. law.315 Initially, U.S. courts dismissed claims by Holocaust survivors on the grounds that international law only gave rise to claims between states and was not self-executing in the absence of implementing legislation in Congress.316 This erroneous interpretation of §1350 was corrected within a few years,317 and since 1980, the U.S. federal courts have exercised universal jurisdiction in a nearly unbroken line of cases involving offenses properly alleged to have been committed elsewhere in violation of international law.318

314

See Enahoro v. Abubakar, 408 F.3d 877 (7th Cir. 2005) (TVPA provides cause of action for properly pleaded claims of torture or extrajudicial killing), cert. denied by Abub v. Enahoro, 2006 U.S. LEXIS 1210 (2006); Wiwa v. Royal Dutch Petroleum Company, 226 F.3d 88, 105 (2d Cir. 2000) (similar).

315

See Bigio v. Coca-Cola Co., 448 F.3d 176, 177 (2d Cir. 2006); Bigio v. Coca-Cola Co., 239 F.3d 440, 452 (2d Cir. 2000).

316

See Dreyfus v. Von Finck, 534 F.2d 24 (2d Cir. 1976). See also Bernstein v. N. V. NederlandscheAmerikaansche Stoomvaart-Maatschappij, 173 F.2d 71 (2d Cir. 1949).

317

See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980); Harold Hongju Koh, Transnational Public Law Litigation, 100 Yale L.J. 2347, 2366 (1991).

318

See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 732–33 & n.20 (2004) (U.S. courts have jurisdiction over “private claims under federal common law for violations of any international law norm [that has sufficiently] definite content and acceptance among civilized nations,” such as prohibition on genocide); Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1200–10 (9th Cir. 2007) (ATCA provided cause of action for racial discrimination and other violations of international law), vacated upon grant of reh’g en banc by 499 F.3d 923 (9th Cir. 2007); Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1247–53 (11th Cir. 2006) (ATCA provides a cause of action for allegations of torture and crimes against humanity that are properly pleaded in the complaint), cert. denied, 127 S. Ct. 596 (2006); Alperin v. Vatican Bank, 410 F.3d 532, 544–58 (9th Cir. 2005); Alvarez-Machain v. United States, 331 F.3d 604, 615 n.7 (9th Cir. 2003) (resolution of claims for torts committed in violation of international law “‘has been constitutionally committed . . . [to] the Judiciary”) (quoting Kadic, 70 F.3d at 249), rev’d on other grounds, Sosa, 542 U.S. 692 ; John Doe I v. Unocal Corp., 395 F.3d 932, 958–60 (9th Cir. 2002) (ATCA provides cause of action for “torture, murder, and slavery [which] are jus cogens violations and, thus, violations of the law of nations”); Abebe-Jiri v. Negewo, 1993 U.S. Dist. LEXIS 21158, No. 90-CV-2010, 1993 WL 814304, at *4 (N.D. Ga. Aug.20, 1993), aff ’d, Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996) (ATCA provides cause of action for torture or “cruel, inhuman and degrading treatment or punishment,” at least as defined by Eighth Amendment to U.S. Constitution); Kadic, 70 F.3d at 249 (ATCA provides a cause of action for genocide); In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1475–76 (9th Cir. 1994) (ATCA “creates a cause of action for violations of specific, universal and obligatory international human rights standards which confer fundamental rights upon all people vis-a-vis their own governments.”); Telesat Roe v. Bridgestone Corp., 492 F. Supp. 2d 988, 1010–24 (S.D. Ind. 2007) (ATCA provides a cause of action for forced labor); Burnett v. Al Baraka Inv. & Dev. Corp. (In re Terrorist Attacks), 349 F. Supp. 2d 765, 826 (S.D.N.Y. 2005) (ATCA provides cause of action against foreign defendants for conspiracy to support, and aiding of abetting of, terrorist aircraft hijackings); Doe I v. Liu Qi, 349 F. Supp. 2d 1258

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Under the doctrine of universal jurisdiction, a nation with the capacity to do so may sanction violations of the law of nations and crimes against humanity, even if the underlying events occurred outside the sanctioning state.319 International comity does not require U.S. courts to sit idle while genocidal regimes such as Sudan adjudicate their own responsibility for massacring religious minorities who have little to no hope of receiving justice in their courts.320 The United States and other nations have a strong interest in “affording alleged victims of atrocities a method to vindicate their rights.”321 Defenses such as sovereign immunity and the act of state doctrine should not stand in the way of this kind of deterrence, particularly where a foreign state is engaged in commercial activity that has a direct effect on the United States and has violated jus cogens norms of international law, as Sudan has done.322 Genocide (N.D. Cal. 2004) (ATCA provides cause of action for “cruel, inhuman, or degrading” treatment); Tachiona v. Mugabe, 234 F. Supp. 2d 401, 437 (S.D.N.Y. 2002) (ATCA provides cause of action for torture or “cruel, inhuman, or degrading treatment”); Cabello Barrueto v. Fernandez Larios, 205 F. Supp. 2d 1325, 1331–33, 1359 (S.D. Fla. 2002) (ATCA provides cause of action for extrajudicial killing, torture, and “cruel, inhuman and degrading treatment”); Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386 (KMW), 2002 WL 319887, at *8 (S.D.N.Y. Feb. 28, 2002) (similar); Doe v. Karadzic, No. 93 Civ. 0878 (PKL), 2001 U.S. Dist. LEXIS 12928, *2 (S.D.N.Y. 2001) (ATCA provides cause of action for genocide, war crimes, crimes against humanity, and other human rights abuses); Doe v. Islamic Salvation Front, 993 F. Supp. 3, 8 (D.D.C. 1998) (ATCA provides cause of action for murder, mutilation, torture, cruel or inhumane treatment, kidnapping, summary executions, and other violations of Common Article 3 of the Geneva Conventions); Xuncax v. Gramajo, 886 F. Supp. 162, 186–89 (D. Mass. 1995) (ATCA provides cause of action for torture, summary executions, disappearances, and arbitrary detention); Paul v. Avril, 812 F. Supp. 207 (S.D. Fla. 1993), later proceeding at 901 F. Supp. 330 (S.D. Fla. 1994) (ATCA provides cause of action for torture or cruel/inhuman treatment); Lafontant v. Aristide, 844 F. Supp. 128, 138–39 (E.D.N.Y. 1994) (ATCA provides cause of action for torture); Forti v. Suarez- Mason, 672 F. Supp. 1531 (N.D. Cal. 1987) (similar). 319

See Sosa, 542 U.S. at 762 (Breyer, J., concurring in the judgment) (“Today international law will sometimes similarly reflect not only substantive agreement as to certain universally condemned behavior but also procedural agreement that universal jurisdiction exists to prosecute a subset of that behavior.”); Restatement (Third) of Foreign Relations Law of the United States § 404 (courts may exercise universal jurisdiction over “offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism. . . .”); see also Demjanjuk v. Petrovsky, 776 F.2d 571, 582–83 (6th Cir. 1985).

320

See Talisman Energy, 244 F. Supp. 2d at 335–43.

321

Id. at 340.

322

See 28 U.S.C. § 1605(a)(3) (2007); H.R. Rep. No. 94-1487, 94th Cong., 2nd Sess. (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6618; Rio Tinto, 487 F.3d at 1209–10 (“Acts of racial discrimination are violations of jus cogens norms,” to which deference to sovereign authority does not apply because “‘[i]nternational law does not recognize an act that violates jus cogens as a sovereign act’”); see also Unocal, 395 F.3d at 958–60; Kadic, 70 F.3d at 250; Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 710 (9th Cir. 1992); United States v. Alstötter et al., (“The Justice Case”), 3 Trials of War Criminals Before Nuremberg Military Tribunals under Control Council Law No. 10, at 983 (1946–1949) (“As the prime illustration of a crime against humanity under [Control Council] Law 10, which by reason of its magnitude and

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and crimes against humanity are almost by definition assaults on the international legal order, and are therefore jus cogens and erga omnes norms from which there can be no valid derogation, claim of sovereign right, or jurisdictional limits.323 Genocide is a uniquely grievous crime, which warrants strong civil remedies, including the imposition of exemplary damages “as a warning or deterrence to others,” and “to make an example of a defendant’s conduct” to prevent its recurrence.324 Sudan has committed much more serious crimes than has Iraq, with a far higher toll of dead and displaced persons. Therefore, the international community has a stronger basis to pierce Sudan’s sovereignty and assess reparations. Insofar as both war crimes and genocide are jus cogens and erga omnes violations, there is no reason to distinguish on legal or jurisdictional grounds between Iraq’s invasion of Kuwait and Sudan’s genocide against non-Arabs in southern Sudan and Darfur. Thus, there is no merit to the contention of at least one prominent scholar that it would impermissibly invade Sudan’s sovereignty to utilize its oil exports to pay reparations to the victims of genocide in southern Sudan and Darfur.325 Iraq only lost its sovereignty and became subject to UNCC reparations once the international community decided to impose reparations for alleged international crimes. The sanctions framework for Iraq, including the UNCC, represented the first time that the U.N. determined the “financial liability” of a member state, and decided that a member state owed payment for such liability.326 Such an assertion of judicial power would be morally unacceptable and potentially discriminatory if the Security Council did not take “comparable actions” in other cases, or establish “clear rules of general applicability.”327

international repercussions has been recognized as a violation of common international law, we cite ‘genocide’ . . . .”). 323

See Alstötter, supra note 322, at 983; Institute of International Law /Institut de droit international, Resolution: Obligations Erga Omnes in International Law, Art. 1 (2005) (“For purposes of the present articles, an obligation erga omnes is: (a) an obligation under general international law that a State owes in any given case to the international community, . . . so that a breach of that obligation enables all States to take action . . . .”).

324

Hilao v. Estate of Marcos, 103 F.3d 767, 771–72, 781 n.7 (9th Cir. 1996); Filartiga, 577 F. Supp. at 864–67 (awarding punitive damages under ATCA to effectuate international law).

325

See Christian Tomuschat, Darfur: Compensation for the Victims, J. of Int’l Crim. Justice 579, 589 (2005). Tomuschat states: In the case of Iraq . . . [t]he Security Council was able to control the export shipments of oil. Revenues from those shipments were available for distribution by the UNCC. In the case of Sudan, no such monies are available. Sudan is a sovereign state which has . . . [not] been deprived of its right to make sovereign determinations on its foreign trade.

Id. 326

Jose E. Alvarez, The Once and Future Security Council, 18 Wash. Q. 3 (1995).

327

Id.

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D. Liability of Oil Companies for Complicity in Genocide More recently, courts have held that civil compensation for genocide is available to aliens filing suit in the United States under the ATCA. The United States Supreme Court has held that U.S. courts should recognize a private cause of action for genocide under the ATCA as long as the prohibition against genocide is an international law norm with specific content and wide acceptance among civilized nations.328 There can be little doubt that the Genocide Convention satisfies these criteria.329 A number of lower courts have found public officials liable or potentially liable for genocide under the ATCA.330 In this way, the ATCA may provide a “federal judicial forum for redressing violations of customary international law that often accompany religious persecution” and deterring violations of international law.331 The international law ban on genocide extends to conspiracy to commit genocide and complicity in genocide.332 Liability for aiding and abetting genocide should extend to all instances in which a corporation acts “in concert with” a government carrying out a campaign of genocide or crimes against humanity, as in Sudan.333 A corporation so acts in concert with a government when it provides practical assistance with knowledge that the assistance will facilitate perpetration of a crime.334 Talisman Energy and the other oil companies doing business in Sudan have provided extensive financial and logistical assistance to the Sudanese government with constructive and actual knowledge of ongoing genocide and crimes

328

See, e.g., Sosa, 542 U.S. at 732 & n.20; see also id. at 748–49 (Scalia, J., dissenting) (majority opinion endorsed private right of action for genocide).

329

See, e.g., Kadic, 70 F.3d at 242; Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 01 Civ. 9882(DLC), 2005 WL 2082846, *2 & n.5 (S.D.N.Y. Aug. 30, 2005) (similar).

330

See, e.g., Kadic, 70 F.3d at 238 (ban on genocide is “wellestablished” and “universally recognized”).

331

Brief for the Presbyterian Church of Sudan as Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.) as Amici Curiae in Support of Respondent, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (No. 03-485), available at http://www.nosafehaven. org/_legal/atca_pro_SudanPresbyterian.pdf.

332

See, e.g., Genocide Convention, supra note 6, Art. III.

333

Kadic, 70 F.3d at 245; Unocal, 395 F.3d at 949–56.

334

See Unocal, 395 F.3d at 950–51. Whether Talisman Energy provided such assistance is a question of fact winding its way through the federal courts, as will similar facts raised by analogous cases in the future. 454 F. Supp. 2d 633 (granting summary judgment to defendant), on appeal, No. 07-0016 (2d Cir.). The district court found that Talisman’s knowledge that its royalties and other payments would finance weapons purchases by Sudan did not amount to aiding and abetting its crimes, but only because the court imposed a requirement of “an intent to assist in those attacks by the payment of royalties.” Id. at 676. Such a requirement is not supported by aiding and abetting cases decided under the ATCA and by international criminal tribunals, which impose liability based on knowledge as well as intent. See, e.g., Khulumani, 504 F.3d at 274–76 (Katzmann, J., concurring); id. at 290–91 (Hall, J., concurring); Unocal I, 395 F.3d at 949–56.

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against humanity.335 Table 4 documents the reported revenues and profits of corporations that have purchased oil or oil concessions from the government of Sudan. Table 4 Reported Net Income of Corporations Dealing with Sudan MNC

Sudan Energy Consortia and Their Estimated 2007 Output

2006 Net Income

Sources

China National Petroleum Corp.

Greater Nile Petroleum Operating Co. (GNPC)(40%), 92 million barrels; Petrodar Operating Co. (PDOC)(41%), 59 million barrels; CNPCIS, 21.9 million barrels

$13.5 billion

Petroleum Intelligence Weekly (PIW), Dec. 3, 2007, & Oct. 1, 2007

Petronas

GNPC (30%), 92 million barrels; PDOC (41%), 59 million barrels; White Nile Production Operating Co.1(WNPOC)(68.9%), 9.7 million barrels

$14.4 billion

PIW, Dec. 10, 2007, Dec. 3, 2007, & Oct. 1, 2007

ONGC Videsh

WNPOC I (24.1%), 9.7 million barrels

$3.5 billion

PIW, Dec. 3, 2007

Talisman Energy

GNPC (25%), 92 million barrels [Talisman Energy helped develop but no longer has an interest in the production in this consortium]

$1.9 billion

Google Finance336

These corporations, and those knowingly shipping arms or ammunition to the Sudanese government or allied militias in violation of U.N. sanctions, are liable for aiding and abetting any crimes that they knowingly facilitate. V. CONCLUSION The historical record and legal principles reviewed in this Article support the conclusion that genocide has occurred in Sudan, most notably in southern Sudan, the Nuba Mountains, and Darfur. Misled by an unreasonably narrow construction placed upon the Genocide Convention by a commission that it established to investigate the atrocities in Darfur, the U.N. Security Council has failed to act 335

Google Finance (Beta), Talisman Energy, Inc. (USA) (2008), http://finance.google.com/ finance?client=ob&q=TLM.

336

Id.

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vigorously to put an end to genocide in these regions of Sudan. Applying the Genocide Convention in light of the precedents established by national and international tribunals that have construed it reveals that genocide has occurred in Sudan, notwithstanding the government’s failure to completely exterminate the affected groups. This Article has attempted to chart a new course for genocide scholarship by emphasizing economic incentives to commit genocide, and the role of the law in deterring such conduct. That focus represents a departure from most legal scholarship on genocide and its prevention, which stresses the importance of international criminal tribunals as methods of punishing genocide, rather than economic reparations as compensation and a deterrent. Nevertheless, genocide in Sudan and elsewhere is difficult to explain without reference to economic motivations on the part of the dominant group to expropriate a foreign or minority population’s land, natural resources, property, and uncompensated labor. These economic motivations become especially powerful when oil companies hold out the prospect of generous revenues to a regime willing to kill or displace any ethnic or religious group that resists the government’s efforts to exploit the national wealth in a discriminatory fashion. Accordingly, the redistribution of stolen resources and wealth to the victim groups should take center stage in genocide prevention. Even if the deterrence effect of such measures proves to be inadequate, their adoption will help ensure that victims of widespread massacres and deportations have some means to survive.

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MERCENARISM 2.0? THE RISE OF THE MODERN PRIVATE SECURITY INDUSTRY AND ITS IMPLICATIONS FOR INTERNATIONAL HUMANITARIAN LAW ENFORCEMENT E. L. Gaston†

Copyright © 2008 by the President and Fellows of Harvard College; E. L. Gaston. Originally published in Harvard International Law Journal (Winter 2008)

In response to reports of frequent criminal misconduct, aggressive behavior, and human rights abuses committed with impunity by private contractors in Iraq and Afghanistan, some have argued that private military and security companies (“PMSCs”) are no more than modern mercenaries, and that they should therefore be banned under the standing international prohibition on mercenarism. However, the existing instruments prohibiting mercenarism would be difficult to apply to most PMSCs, making it easy for states that want to continue to use these companies to evade such a ban. In contrast, given market forces pushing PMSCs to be more compliant and emerging state practices that favor regulation, coordinated international regulation of PMSCs might feasibly be enforced. This article proposes that many of the issues with private military and security companies could be addressed by creating an international humanitarian law (“IHL”) principle that recognizes state use of PMSCs as a means of warfare. The availability of advanced, independent security and military capabilities-for-hire enables states or nonstate actors to get around political or resource constraints that otherwise might limit the use of force, and may undermine IHL enforcement. These threats might be addressed if IHL established a stronger state responsibility link between states and the PMSCs they hire. International humanitarian law should provide that states who outsource government security or military functions in support of any combat or humanitarian operations that would otherwise trigger IHL must establish internal oversight, accountability, and liability mechanisms to ensure that these actors comply with international and domestic legal norms and regulations.

I. INTRODUCTION While the use of privatized force has been a longstanding feature of military campaigns, the boom in military and security outsourcing in Iraq and Afghanistan has attracted new attention to the status and role of privatized military and security actors under international law. Public attention has been focused on frequent reports of security contractors’ impunity for any human rights abuses, criminal †

J.D., Harvard Law School, 2007. This note is winner of the 2007 Harvard International Law Journal Student Note Competition. Funding for this research was provided by the Harvard Islamic Legal Studies Program and the Harvard Winter Travel Grant Program. Special thanks to Jack Goldsmith, Richard Goldstone, Martha Minow, Nikolaus Grubeck, and the Harvard Human Rights Program for their support and assistance.

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misconduct, or aggressive behavior while engaged in coalition operations.1 Based on these negative reports, many have argued that private military and security companies (“PMSCs”) are no more than modern mercenaries,2 and therefore should also be banned under the standing international prohibition on mercenarism.3 There are significant legal, policy, and practical reasons for treating PMSCs differently than mercenaries, however. The existing instruments prohibiting mercenarism would be difficult to apply to most PMSCs, making it easy for the many states that want to continue to use these companies to circumvent the standing international ban. Coordinated international regulations of PMSCs, by contrast, might feasibly be enforced. Market forces have been pushing PMSCs to be more compliant than mercenaries in the past with international and domestic legal regulations. This is particularly true of PMSCs seeking contracts from international actors and states that care about hiring reputable privatized forces. Emerging state practice favoring regulatory solutions for PMSC issues–particularly among those states that are most often the clients, host countries, or home countries of PMSCs–suggests that regulation of PMSCs would have more widespread support than a prohibition on mercenarism.

1

See, e.g., James Glanz & Alissa J. Rubin, From Errand to Fatal Shot to Hail of Fire to 17 Deaths, N.Y. Times, Oct. 3, 2007, at A1 (describing the shooting of 17 civilians by a Blackwater security convoy); Farah Stockman, Civilians ID’d in Abuse May Face No Charges, Boston Globe, May 4, 2004, at A1 (noting the involvement of private contractors in the Abu Ghraib torture scandal); Andrea Weigl, Passaro Will Serve 8 Years for Beating, News & Observer (Raleigh, N.C.), Feb. 14, 2007, at B1 (describing the prosecution of a former CIA interrogation contractor for beating an Afghan detainee to death); William M. Arkin, Blackwater and War Crimes: A Dangerous Equation, Early Warning, Oct. 15, 2007, http://blog.washingtonpost.com/ earlywarning/2007/10/blackwater_and_war_crimes_a_da_ 1.html (noting that the United Nations was investigating whether the Blackwater shooting could be classified as a war crime).

2

See, e.g., U.N. Econ. & Soc. Council [ECOSOC], Comm’n on Human Rights, The Right of Peoples to Self-Determination and its Application to Peoples Under Colonial or Alien Domination or Foreign Occupation, ¶ 57, U.N. Doc. E/CN.4/2004/15 (Dec. 24, 2003) (prepared by Enrique Bernales Ballesteros) (equating modern PMSCs to mercenaries), available at http://www.unhchr.ch/Huridocda/Huridoca.nsf/e6802d4a3d1ddbefc1256610002ee274/ 69ecaf81b3a74d8ac1256e5b006 84da2/ $FILE/G0317313.pdf; Press Release, United Nations. Private Security Companies Engaging in New Forms of Mercenary Activity, Says UN Working Group (Nov. 6, 2007), http://www.unhchr.ch/huricane/huricane.nsf/0/ AC7F341BE422A006C125738B0055C48C [hereinafter U.N. Press Release]. South Africa has also treated private security firms and contractors as mercenaries in its domestic legislation. See, e.g., Regulation of Foreign Military Assistance Act 15 of 1998 (S. Afr.), available at http:// www.info.gov.za/gazette/acts/1998/a15–98.pdf.

3

International Convention Against the Recruitment, Use, Financing and Training of Mercenaries, adopted Dec. 4, 1989, 2163 U.N.T.S. 75 (entered into force Oct. 20, 2001) [hereinafter Convention Against Mercenaries]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 47, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Protocol I]; see also infra notes 55–57.

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The availability of advanced, independent security and military capabilities for hire enables states or non-state actors to get around political or resource constraints that otherwise might limit the use of force. Moreover, since independent PMSCs are not considered part of a state’s armed forces or supporting militias under international humanitarian law (“IHL”), states have weak legal responsibility for the functions they outsource to PMSCs and for the conduct of individuals carrying those functions out. States therefore have few incentives to develop accountability and control mechanisms that would prevent or redress the type of misconduct and international law violations that have been associated with private military and security companies in Iraq and Afghanistan. This article will propose that many of the issues with PMSCs could be addressed by creating an IHL principle that recognizes and regulates state use of PMSCs as a means of warfare. The threats created by PMSCs might be addressed in large part by IHL provisions providing that states who outsource government security or military functions in support of those combat or humanitarian operations that would otherwise trigger IHL must establish internal oversight, accountability, and liability mechanisms to ensure that these actors comply with international and domestic legal norms and regulations. In Part II, this article will first describe the development of the private security sector after the Cold War, the common types of privatized force, and the types of service they typically provide. Part III will then evaluate the claims that security contractors should be treated as mercenaries, and argue instead that the corporate form of private military and security companies, and the advanced independent capabilities enabled by that corporate form, not only distinguish them from mercenaries of the past, but may also create additional challenges to the international system that justify different treatment. Part IV will conclude by arguing that a regulatory approach to the PMSC problem is more likely to be collectively enforced than a ban, and by suggesting that an IHL provision recognizing outsourcing as a method of warfare and requiring states to regulate and assume responsibility for it accordingly may address many of the threats posed by PMSCs. II. THE EMERGING PRIVATE SECURITY SECTOR AND ITS ROLE IN MODERN WARFARE The number of security contractors in Iraq is estimated to be 20,000 to 30,000 or greater,4 making them the second-largest contingent in Iraq after U.S.

4

Toni Pfanner, Editorial, 88 Int’l Rev. Red Cross 445, 445 (2006). However, some define the term security contractors more broadly, including those that provide direct security and military assistance and those that provide indirect logistical and supply support. Based on this definition, the number could be as high as 180,000. See Debate between Doug Brooks, President of the Int’l Peace Operations Ass’n, and Jeremy Scahill, in New York, N.Y. (Sept. 18, 2007) (moderated by Amy Goodman), available at http://www.democracynow.org/article. pl?sid=07/09/18/140201.

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forces.5 There are an estimated 10,000 security contractors in Afghanistan, including local nationals, third-party nationals, and Afghan security companies.6 The more prominent role of private security contractors in coalition operations and the involvement of some private security contractors in headline-grabbing incidents of human rights abuse have reignited policy discussions about security outsourcing and how international or domestic law might provide stronger accountability for these actors.7 Before addressing some of these legal and policy concerns, however, it is important to identify the many different actors in the modern private security industry and how they are involved in modern humanitarian and conflict operations. The origin of the modern private security industry dates roughly to the early 1990s. The military downsizing of traditional military powers after the Cold War and their disengagement from select zones of influence (particularly Africa) created a demand for greater privatized military and security options, while also flooding the market with an ample supply of former soldiers.8 Globalization expanded opportunities for the growth of transnational business sectors like the private security industry, while neo-liberal trends toward outsourcing government functions to the private sector rationalized the outsourcing of military and security functions that previously had been guarded as the exclusive province of the state.9 While media coverage tends to lump all privatized security actors together, in practice the private security industry is composed of a wide range of corporate structures and job functions–from rent-a-cop-type security protection for nongovernmental organizations (“NGOs”) to guarding bases to engagement in covert

5

See Edward Cody, Contractor Immunity a Divisive Issue, Wash. Post, June 14, 2004, at A1.

6

Fisnik Abrashi & Jason Straziuso, Afghans Close 2 Security Firms; More Likely, Wash. Post, Oct. 12, 2007, at A14 (citing estimates of as many as 10,000 security contractors in Kabul, with approximately 1,000 employed by the U.S. Department of Defense).

7

See, e.g., Heather Carney, Prosecuting the Lawless: Human Rights Abuses and Private Military Firms, 74 Geo. Wash. L. Rev. 317, 333 (2006); Ellen L. Frye, Private Military Firms in the New World Order: How Redefining “Mercenary” Can Tame the “Dogs of War,” 73 Fordham L. Rev. 2607 (2005); Martha Minow, Outsourcing Power: How Privatizing Military Efforts Challenges Accountability, Professionalism, and Democracy, 46 B.C. L. Rev. 989, 999 & n.62 (2005); U.N. Press Release, supra note 2.

8

See, e.g., Deborah Avant, The Market For Force: The Consequences of Privatizing Security 30 (2005); P.W. Singer, Corporate Warriors 49–54 (2003); Joanna Spear, Fafo, Market Forces: The Political Economy of Private Military Companies 11–15 (2006), available at http://www.fafo.no/pub/rapp/531/531.pdf.

9

See Singer, supra note 8, at 66–70 (arguing that the “privatization revolution” legitimized the outsourcing of military and security functions that previously had been “untouchable areas” of government); Spear supra note 8, at 14–16 (suggesting that neo-liberal theories about the efficiency of private-sector services fueled the growth of the private security sector).

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operations.10 For ease of description, private military and security companies might be loosely grouped into three categories–supply firms, private military firms, and private security companies. However, it is often difficult to fit any one firm squarely into one category given the variety of services and projects each offers.11 At one end of the spectrum, supply firms like Halliburton or Kellogg, Brown & Root rarely, if ever, engage in direct combat. Instead, they provide the logistics, supplies, and technical and operational support for most modern military deployments, including the coalition operations of the United States, the United Kingdom, France, and other NATO countries.12 This includes everything from food and service contracts to providing transport for troops and equipment to maintaining and operating complex surveillance and weapons systems.13 10

The general lack of transparency within the industry only perpetuates this misunderstanding. See Jennifer Elsea & Nina M. Serafino, Private Security Contractors in Iraq: Background, Legal Status, and Other Issues (Cong. Research Serv., CRS Report for Congress, Order Code RL32419, updated July 11, 2007) at “Summary,” available at http://www.fas.org/sgp/crs/ natsec/RL32419.pdf (“Transparency issues include the lack of public information on the terms of their contracts, including their costs and the standards governing their hiring and performance, as well as the background and training of those hired under contract.”); Minow, supra note 7, at 999 & n.62 (noting that PMSCs are immune from FOIA requests and other disclosure requirements). Many PMSCs refuse to talk to outside journalists, and some are bound under their contracts not to reveal the nature of their government contracts. See John M. Broder & James Risen, Blackwater Mounts a Defense With Top Talent from Capital, N.Y. Times, Nov. 1, 2007, at A1 (noting that confidentiality agreements with U.S. government agencies have prevented Blackwater from publicly discussing incidents); Telephone interview with former Blackwater executive (Apr. 7, 2007) (on file with author); Interview with U.S. Embassy Official, in Kabul, Afg. ( Jan. 14, 2007) (on file with author). In preparation for this article, the author conducted extensive onsite interviews with representatives from various government agencies and private security contractors. The majority of these interviews could only be conducted upon the condition of interviewee anonymity. All interviews are on file with the author, but many are available only in redacted form to protect confidentiality.

11

This categorization tracks the “tip-of-the-spear” typology coined by P.W. Singer. Singer likens military provider firms, which may engage in direct combat or command and control functions as the “tip of the spear,” while those support firms providing logistics and other non-lethal services are at the base of the spear, and private security companies or “military consultant firms” fall somewhere in between. See Singer, supra note 8, at 91–92.

12

Kellogg, Brown & Root provided such support to U.S. military operations in Kuwait, Somalia, Haiti, Bosnia, Rwanda, and Afghanistan. Id. at 136; see also Elke Krahmann, Ctr. For Eur. Stud., Controlling Private Military Companies; The United Kingdom and Germany 10–13 (describing German outsourcing of information technology, military training, and logistics functions); Singer, supra note 8, at 12–13, 142–46 (describing how the British military has outsourced the training, operation, and maintenance of nuclear submarines, its aircraft support unit, tanker transport unit, and its air-to-tanker refueling fleet); James Cockayne, Int’l Peace Academy, Commercial Security in Humanitarian and Post-Conflict Settings 1 (2006), available at http://www.ipacademy.org/pdfs/ COMMERCIAL_SECURITY_FINAL.pdf (noting the integration of PMSCs in French military interventions).

13

In the first Gulf War, the U.S. military contracted out operational support for TOW missiles, M1A1 tanks, Bradley fighting vehicles, and Patriot missiles. In the 2003 invasion of Iraq,

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While supply firms may enable war fighting by providing more efficient support and supply functions, it would be difficult to distinguish activities like building military camps, delivering food and supplies, and maintaining communications and laundry services from the type of civilian support that has always been permitted under IHL and is particularly common to democracies. Therefore, the remaining analysis will focus on the other two categories: private military firms and private security companies. At the opposite end of the spectrum from supply firms, private military firms (“PMFs”) offer combat capabilities, tactical analysis, and other direct military support.14 For example, in 1993 the government of Sierra Leone paid the South African firm Executive Outcomes $35 million to defeat advancing Revolutionary United Front rebels.15 Executive Outcomes deployed a several-hundred-strong infantry battalion, supported by combat helicopters, armored vehicles, and light artillery to contain and push back the Revolutionary United Front from the capital in a matter of weeks–an outcome far more successful and cost effective than the later U.N. peacekeeping operation.16 In 1997, the Papua New Guinea government contracted the British firm Sandline for $35 million to aid its army in defeating a secessionist movement. Although domestic political resistance eventually prevented it from fulfilling its contract, Sandline had agreed to train an elite strike force, provide intelligence and tactical analysis for the army, conduct independent offensive operations, and provide follow-up operational support.17 These were not isolated incidents; PMFs like Executive Outcomes, Sandline, and others provided services for governments or rebel groups in Ethiopia, Angola, Zambia, Ghana, Algeria, Ivory Coast, Rwanda, Uganda, Croatia, Indonesia, and many other countries.18

contractors were involved in maintenance and operational support for the B-2 stealth bomber, the F-117 stealth fighter, the M-1 tank, the Apache helicopter, and some naval operations. Avant, supra note 8, at 19. Contractors also operated many of the unmanned aerial surveillance vehicles, including the Global Hawk and Predator drones that were critical to U.S. military operations in Afghanistan and Iraq. P.W. Singer, War, Profits, and the Vacuum of Law: Privatized Military Firms and International Law, 42 Colum. J. Transnat’l L. 521, 534 (2004). 14

See generally Singer, supra note 8, at 106–15 (detailing the history of the operations of Executive Outcomes, the most notorious PMF, as an example of the type of offensive action and tactical and military advisory services that PMFs provide); see also Robert Young Pelton, Licensed to Kill: Hired Guns in the War on Terror 266–70 (2006).

15

Singer, supra note 8, at 106–15.

16

Id.

17

Pelton, supra note 14, at 266–70.

18

Singer, supra note 8, at 9–15. More than eighty PMFs provided their services during the conflict in Angola alone. Id. at 9.

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The more prominent and controversial category of outsourced military work since 2001 has been performed by private security companies (“PSCs”). While PSCs have been active in border monitoring, civilian law enforcement, and refugee protection as part of U.N., NATO, and other multilateral humanitarian operations since the mid-1990s,19 demand for this type of firm exploded with operations in Iraq and Afghanistan.20 PSCs fall in between supply firms and PMFs on the combat-versus-support spectrum. Unlike PMFs, PSCs do not typically engage in direct combat, although some PSC employees are assigned duties likely to draw fire, including guarding U.S., British, or NATO military bases, embassies, checkpoints, or convoys.21 PSCs do not focus on providing logistics, support, and supplies, although some of these services may be included within their broader contracts.22 In addition, PSCs may be involved in policing and security protection services, covert operations,23 or detention, interrogation, and intelligence

19

See, e.g., Singer, supra note 8, at 143–45 (describing the type and degree of PMSC involvement in peacekeeping operations in the Balkans, including logistical support for NATO troops, air support for the United States, refugee-camp operation, the construction and management of military bases, etc.); U.N. High Comm’r for Refugees [UNHCR], Exec. Comm., Security and the Civilian and Humanitarian Character of Refugee Camps and Settlements, U.N. Doc. EC/49/SC/INF.2 ( Jan. 14, 1999); Avant, supra note 8, at 202–03; Elsea & Serafino, supra note 10, at CRS-5 (noting use in landmine operations).

20

John M. Broder & David Rohde, State Dept. Use of Contractors Leaps in 4 Years, N.Y. Times, Oct. 24, 2007, at A1; The Baghdad Boom, Economist, Mar. 27, 2004, at 56.

21

In April 2004, Blackwater contractors protecting the Coalition Provisional Authority compound in Najaf were engaged in direct combat for more than twenty-four hours to hold off rioters attacking the compound. They were supported by Blackwater helicopters providing armed cover and evacuating the wounded. See Pelton, supra note 14, at 149–52. But see Jeremy Scahill, Blackwater: The Rise of the World’s Most Powerful Mercenary Army 122–32 (2007) (suggesting that Blackwater triggered the Najaf event by firing on the crowd); Scott Shane, Chalabi Raid Adds Scrutiny to Use of U.S. Contractors, Baltimore Sun, May 30, 2004, at 1A (describing the offensive DynCorp raid on Ahmed Chalabi’s compound and offices).

22

See Chris Tomlinson, U.S. Hires Military Contractor to Back Peacekeeping Mission in Somalia, Associated Press, Mar. 7, 2007, available at http://www.signonsandiego.com/news/ world/20070307-1320-somalia-us.html (noting a recent DynCorp contract to provide equipment and logistical support for African Union peacekeepers).

23

See, e.g., Interview with human rights investigator, in Kabul, Afg. ( Jan. 12, 2007) (on file with author) (stating that through human rights investigations, the interviewee was aware of PMSCs active in U.S. Central Intelligence Agency (“CIA”) and “other governmental agency”– i.e. covert operation–raids in the East and South of Afghanistan); Interview with former public affairs representative, Coalition Provisional Authority, in Cambridge, Mass. (Feb. 28, 2007) (on file with author) (stating that in the first few years of the Iraq and Afghanistan operations, the CIA needed stronger paramilitary forces for counter-terrorism task forces and often turned to PMSCs, for example in the unit in charge of tracking Saddam Hussein); Pelton, supra note 14, at 56–61; P.W. Singer, Warriors for Hire in Iraq, Salon.Com, Apr. 15, 2004, http://dir.salon. com/story/news/feature/2004/04/15/warriors/index.html (describing contractors engaged in the hunt for Bin Laden).

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functions.24 PSCs may provide strategic advisory services, for example, capacitybuilding in the Afghan Department of Defense,25 intelligence collection or analysis for coalition forces and other contractors, or strategic consulting on behalf of the NATO-supported International Security Assistant Force (“ISAF”) on how to win “hearts and minds” in Afghanistan.26 PSCs also have major contracts with nonmilitary U.S. agencies in Iraq and Afghanistan, including U.S.-funded drug eradication programs, local army and police training programs, and groups charged with the protection of U.S. personnel and important officials such as Paul Bremer, former U.S. presidential envoy to Iraq, and Afghan President Hamid Karzai.27 PSCs are often subcontracted by the many construction, consulting, engineering, or other private companies fulfilling U.S. Agency for International Development (“USAID”), State Department and other foreign government contracts.28 Finally, many PSCs have private-sector clients in Iraq and Afghanistan. For example, PSCs in Afghanistan provide security for movie directors, U.S. defense lawyers gathering evidence for detainee cases, and private sector telecommunication services, among others.29 A subset of PSC services that should be noted and set aside, if not considered as a separate category in and of itself, is private security protection or bodyguard services. Many PSCs (and some PMFs) have divisions within their corporation that provide some of the same security services they might provide in Iraq or Afghanistan to private entities or government entities in other global hotspots or hostile operating environments. Examples include the tens of thousands of individuals working in bodyguard and protection services in countries like Russia, protecting oil companies’ assets and personnel in countries like Nigeria, or protecting CEOs or other

24

See, e.g., Mark Bowden, How to Break a Terrorist, The Atlantic, May 2007, at 54 (describing contractors involved in the interrogation and intelligence mission surrounding Abu Musab al-Zarqawi); Victoria Burnett et al., From Building Camps to Gathering Intelligence, Fin. Times, Aug. 11, 2003, at 13; Interview with ISAF legal advisors, in Kabul, Afg. ( Jan. 19, 2007) (on file with author) (suggesting that contractor involvement in interrogation and detention is ongoing).

25

Interview with PMSC Executive Officer, in Cambridge, Mass. (Apr. 6, 2007) (on file with author); Military Prof ’l Res. Inc., Security Sector Reform Programs, http://www.mpri.com/ main/securitysectorreform.html (last visited Nov. 19, 2007).

26

Interview with PMSC employee, in Kabul, Afg. ( Jan. 11, 2007) (on file with author).

27

Pelton, supra note 14, at 110–11; Jeremy Scahill, Bush’s Shadow Army, The Nation, Apr. 2, 2007, at 2, available at http://www.thenation.com/doc/20070402/scahill.

28

See, e.g., Special Inspector Gen. For Iraq Reconstruction, Fact Sheet on Major U.S. Contractors’ Security Costs Related to Iraq Relief and Reconstruction Fund Contracting Activities 2 (2007), available at http://www.sigir.mil/reports/pdf/audits/ 06–044.pdf.

29

Interview with senior manager of British PSC, in Kabul, Afg. ( Jan. 18, 2007) (on file with author); Interview with head of Afghan PSC, in Kabul, Afg. ( Jan. 16, 2007) (on file with author).

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potential targets from kidnapping and ransom demands in countries like Colombia.30 Despite the similarity between these services and some projects in Iraq and Afghanistan, this category of protection services takes place outside of a conflict zone and therefore will not be the focus of the below discussion on PMSCs and international humanitarian law. As the above descriptions may suggest, it is often difficult to categorize one firm or one contractor as a PMF or a PSC. Therefore the remainder of this article will refer to both groups collectively as “private military or security companies.” Any further analysis will be assumed to include both types of firms and services, although discussions of the threats that PMSCs pose may be geared more toward the type of PSCs active in Iraq and Afghanistan since this has been the predominant form of privatized force in recent years. III. CONTRASTING PMSCS AND MERCENARIES: AN ARGUMENT FOR A DIFFERENT TREATMENT Much of the public attention and legal debates surrounding PMSCs have been focused on reports of serious criminal misconduct by “trigger-happy” private security contractors in Iraq and Afghanistan.31 The negative reputation of PMSCs and their private sector status have led some commentators to compare PMSCs to mercenaries, and to suggest that they in turn should be banned under the existing international legal prohibition on mercenary activity.32 However, the corporate form of private military and security companies, and the advanced independent capabilities that go with that corporate form, not only distinguish them from mercenaries of the past but may also create additional challenges for the international system. These significant differences make it a legal stretch for the standing mercenary definitions to be applied to these actors, and also counsel against treating security companies that pose a very different, and in many ways more significant, threat to the international system with the same legal solution that was applied to mercenaries of the past. Much of the controversy surrounding PMSCs has been due to frequent reports of unpunished criminal misconduct, human rights abuses, and potential war crimes

30

Kevin A. O’brien, Rand Europe, Private Military Companies: Options for Regulation 3 (2002), available at http://www.fco.gov.uk/Files/KFile/pmcobrien.pdf; Singer, supra note 8, at 11; ArmorGroup Int’l plc, Latin America, http://www.armorgroupamerica. com/globalreach/latinamerica (last visited Nov. 19, 2007).

31

See, e.g., Editorial, The Folly of Using Mercenaries in Iraq, Int’l Herald Trib., Nov. 6, 2007, at 8 (critiquing American use of “trigger-happy bodyguards” and arguing that “gun-toting mercenaries … run around Iraq without any clear legal tether”); Sue Pleming, Blackwater Involved in 195 Iraq Shootings, Reuters, Oct. 2, 2007, available at http://www.reuters.com/articlePrint ?articleId=USN2739989220071002 (noting public investigations uncovering evidence of PMSC misconduct against Iraqi civilians and their property).

32

See supra note 2.

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by PMSC personnel. In the 1990s, DynCorp employees hired to represent the U.S. contingent in the U.N. Police Task Force in Bosnia were involved in a sextrafficking scandal.33 During many of its operations in Africa, the private military firm Executive Outcomes was criticized for using cluster bombs and other military methods that were questionable under international humanitarian law.34 In the context of PMSC involvement in Iraq, security contractors employed as interrogators by CACI International and Titan were involved in the Abu Ghraib prison abuses.35 A few months after Abu Ghraib, a video surfaced on the Internet showing Aegis contractors on patrol in Iraq apparently arbitrarily shooting at Iraqi civilians.36 In February 2007, a former CIA contractor named David Passaro was convicted in U.S. federal court for beating an Afghan prisoner to death.37 In the fall of 2007, Blackwater contractors came under heavy fire for the apparently unjustified killing of 17 Iraqi civilians in September 2007 while they were providing mobile convoy protection for USAID employees.38 Investigations spurred by this Blackwater incident revealed evidence of even more widespread, and perhaps unjustified, attacks against Iraqi civilians or Iraqi civilian property.39 Beyond these more serious incidents of abuse, many have argued that PMSC contractors in Iraq and Afghanistan generally treated local civilians disrespectfully and exacerbated local hostility to coalition operations.40 As one journalist described it, Blackwater’s thugs with guns now push and punch Iraqis who get in their way: Kurdish journalists twice walked out of a Bremer press conference because of their

33

See Robert Capps, Crime Without Punishment, Salon.Com, June 27, 2002, http://dir.salon. com/story/news/feature/2002/06/27/military/index.html? pn=1.

34

Singer, supra note 8, at 116 (noting Executive Outcomes’ use of napalm, cluster bombs, and fuel-air explosives); Nathaniel Stinnett, Regulating the Privatization of War: How To Stop Private Military Firms from Committing Human Rights Abuses, B.C. Int’l & Comp L. Rev. 211, 215 (2005) (reporting that Executive Outcomes commanders gave orders to their pilots to “kill everybody” without regard to the civilian population).

35

See Stockman, supra note 1; Joel Brinkley & James Glanz, Contract Workers Implicated in February Army Report on Prison Abuse Remain on the Job, N.Y. Times, May 4, 2004, at A6.

36

See Sean Rayment, “Trophy” Video Exposes Private Security Contractors Shooting Up Iraqi Drivers, Telegraph.Co.UK, Nov. 26, 2005, at 10, available at http://www.telegraph.co.uk/news/main. jhtml?xml=/ news/2005/11/27/wirq27.xml&sSheet=/news/2005/11/27/ixworld.html.

37

See Weigl, supra note 1.

38

See Glanz & Rubin, supra note 1.

39

See, e.g., Pleming, supra note 31.

40

Hamida Ghafour, Afghans Are Fed Up with Security Firm: Residents of a Kabul Neighborhood Say They Feel They Are Under Occupation as DynCorp Barricades a Strees and Conducts Searches, L.A. Times, Sept. 27, 2004, at A3; Editorial, The Folly of Using Mercenaries in Iraq, supra note 31, at 8 (arguing that the United States’ use of unaccountable “trigger-happy bodyguards” “wiped out whatever residual sense of legitimacy Iraqis may have still attached to the U.S. mission”).

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mistreatment by these men . . . . [T]here is a disturbing increase in reports that mercenaries are shooting down innocent Iraqis with total impunity.41

In Afghanistan, the PMSC originally hired to protect Afghan President Hamid Karzai, DynCorp, was fired because of repeated incidents of disrespect or abuse to local Afghans.42 The fact that DynCorp actually suffered some financial repercussions for misconduct on the Karzai contract is notable because for most incidents PMSCs and their employees have suffered no legal or financial consequences. Of the thousands of PMSC contractors that have served in Iraq and Afghanistan since 2001, only one has ever been prosecuted.43 The misconduct of some PMSC actors has led them to be compared with mercenaries.44 Similarly negative historical connotations of mercenaries, and their association with widespread misconduct and abuse, led to the existing international law prohibition on mercenary activities. The use of “guns for hire” or other private actors has been longstanding practice in warfare and was traditionally unquestioned under international law.45 No provisions explicitly prohibiting mercenarism existed in the Hague Conventions,46 the original Geneva Conventions,47 or in

41

Robert Fisk, Saddam in the Dock: So This Is What They Call the New, Free Iraq, Indep. On Sunday (London), July 4, 2004, at 12.

42

See Interview with senior political officer, UNAMA, in Kabul, Afg. ( Jan. 18, 2007) (on file with author); Interview with a manager of an American PSC, in Kabul, Afg. ( Jan. 14, 2007) (on file with author); Interview with two senior/commanding officers of an American PSC, in Kabul, Afg. ( Jan. 12 & 14, 2007) (on file with author); Interview with legal affairs representative of an American PSC, in Washington, D.C. (Nov. 10, 2006) (on file with author).

43

Ned Parker, U.S. Restricts Movement of Its Diplomats in Iraq; The Limits Come as a Shooting by a Convoy’s Guards Is Investigated, L.A. Times, Sept. 19, 2007, at A1 (noting that CIA contractor David Passaro is the only contractor convicted of civilian abuse in Iraq or Afghanistan).

44

See supra note 2.

45

See, e.g., Singer, supra note 8, at 20–29, 33–34 (describing the historical hiring of mercenaries by ancient Greek and Roman armies, by the Italian city states to fight in the Crusades, by European monarchs and feudal lords from the Middle Ages through the Thirty Years’ War, and by the British Empire in conflicts overseas, among others); Wm. C. Peters, On Law, Wars, and Mercenaries: The Case for Courts-Martial Jurisdiction over Civilian Contractor Misconduct in Iraq, 2006 Byu L. Rev. 367, 377–81 (2006) (describing U.S. use of civilian contractors throughout its military history).

46

See Katherine Fallah, Corporate Actors: The Legal Status of Mercenaries in Armed Conflict, 88 Int’l Rev. Red Cross 599, 603–04 (2006) (noting that the Hague Conventions have no explicit provisions on mercenaries but that Hague Convention V may have implications for mercenaries by providing that individuals from neutral states who take up arms on behalf of a belligerent lose the privileges of neutrality).

47

Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316 [hereinafter Geneva POW Convention]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217; Geneva Convention for the Amelioration of the

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customary international humanitarian law prior to World War II.48 Mercenaries were considered a legitimate means of warfare until post-World War II, when they became actively involved in many of the post-colonial struggles for independence.49 In addition to being associated with severe human rights abuses and other war crimes in those post-colonial struggles, the use of mercenaries was increasingly delegitimized because it potentially prolonged certain conflicts and undermined international principles of self-determination.50 As a result of this negative historical experience, the push for international provisions criminalizing mercenarism came primarily from post-colonial African states and often over the objection of Western states.51 A series of regional African conventions and statements condemning mercenaries set the first legal precedents for a ban on mercenaries,52

Conditions of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114. 48

Article 9 of the Brussels Conference of 1874, which represented customary international law at the time, incorporated mercenaries into the laws of war as irregular combatants. See, e.g., Fallah, supra note 46, at 603–04; Bohunka O. Goldstein, Mercenarism, in 1 International Criminal Law 439, 445–46 (M. Cherif Bassiouni ed., 2d ed. 1999).

49

See, e.g., Goldstein, supra note 48, at 445 (suggesting that mercenaries attracted by adventure and money joined whichever rebel group, foreign power, or government paid the most); Lyal S. Sunga, The Emerging System of International Criminal Law: Developments in Codification and Implementation 183–85 (1997) (stating that European powers hired mercenaries to maintain influence over former colonies because it was taboo to retain direct influence after World War II).

50

See Goldstein, supra note 48, at 457 (arguing that the rise of mercenaries in Africa was a threat in part because mercenaries engaged in the killing and torturing of civilians and prisoners); Office of the U.N. High Comm’r for Human Rights, Fact Sheet no. 28, the Impact of Mercenary Activities on the Right of Peoples to Self-Determination 7–11 (2002), available at http://www.ohchr.org/english/about/publications/docs/factsheet 28.pdf.

51

See, e.g., G.A. Res. 3103, ¶ 6, U.N. GAOR, 28th Sess., Supp. No. 30, U.N. Doc. A/9030 (1973) (condemning the use of mercenaries by “colonial and racist regimes” against the selfdetermination movements of former colonies); James Cockayne, The Global Reorganization of Legitimate Violence: Military Entrepreneurs and the Private Face of International Humanitarian Law, 88 Int’l Rev. Red Cross 459, 475–76 nn.48–49 (2006).

52

See generally Goldstein, supra note 48, at 442–43 (summarizing the international law developments leading to the creation of the United Nations Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination); Organization of African Unity, Convention for the Elimination of Mercenarism annex II, July 3, 1977, O.A.U. Doc. CM/817 (XXIX), reprinted in Documents of the Organization of African Unity 58 (Gino J. Naldi ed., 1992); Riley Martin, Mercenaries and the Rule of Law, 17 Rev. Int’l Comm’n Jurists 51 (1977) (describing the June 1976 trial of thirteen British, American, and Argentinean citizens in Angola on grounds of mercenarism as a crime under customary international law); Organization of African Unity, Int’l Comm’n of Inquiry on Mercenaries, Draft Convention on the Prevention and Suppression of Mercenarism art. 4, Luanda, June 1976, reprinted in Paul W. Mourning, Leashing the Dogs of War: Outlawing the Recruitment and Use of Mercenaries, 22 VA. J. Int’l L. 589, 615 (1982) (seeking to deny mercenaries the status of lawful combatants).

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ultimately resulting in the 1989 U.N. Convention Against Recruitment, Use, Financing, and Training of Mercenaries (“U.N. Convention Against Mercenaries”), which went into effect in 2001.53 In addition, African delegates to the negotiations on the additional protocols to the Geneva Conventions pushed through a provision in Protocol I (article 47) that denied mercenaries the privileges of lawful combatants.54 Although the mercenary ban is firmly established in IHL,55 it is one of the weaker provisions.56 Outside of the community of African states that championed it, the mercenary ban has never received the type of widespread support that would make enforcement likely. In addition, the legal standards within these instruments are difficult to meet, and the enforcement provisions are themselves weak. To illustrate, the Protocol I provision on mercenaries does not make it a crime per se to be a mercenary, but simply permits the detaining party to deny any captured mercenary prisoner-of-war status as an unlawful combatant.57 The U.N. Convention Against Mercenaries goes one step further and does make it a crime to be a mercenary, but enforcement of this crime depends on implementing legislation by the relevant state party.58 Another important limitation on the effect of these instruments is

53

Convention Against Mercenaries, supra note 3; see also Goldstein, supra note 48, at 443–44 (describing momentum toward and driving forces within the negotiations toward the Convention Against Mercenaries).

54

Protocol I, supra note 3, art. 47. This provision was included despite the objections of many Western states. See Fallah, supra note 46, at 604–05 (describing the origin of the provisions on mercenaries in the Additional Protocol I to the Geneva Convention); see also Frits Kalshoven & Liesbeth Zegveld, Constraints on the Waging of War: An Introduction to International Humanitarian Law 90 (2003) (noting that article 47 was only included as a concession to African states); Edward Kwakwa, The Current Status of Mercenaries in the Law of Armed Conflict, 14 Hastings Int’l & Comp. L. Rev. 67, 68 & n.7 (1990) (noting that one of the reasons the United States cited for not ratifying Protocol I was the provision on mercenaries).

55

See Lindsey Cameron, Private Military Companies: Their Status Under International Humanitarian Law and Its Impact on Their Regulation, 88 Int’l Rev. Red Cross 573, 579 & n.21 (2006) (noting that the International Committee for the Red Cross has found the Protocol I definition of a mercenary to be part of customary international law, although the United States has long rejected this view).

56

The crime of mercenarism was not included in the 1996 Draft Codes of Crimes adopted by the International Law Commission, largely because it was not considered widespread or severe enough to justify the status of a grave threat to peace and security. See Goldstein, supra note 48, at 444–45 nn.31–33 (noting the objections of Austria, the Netherlands, Norway, and the United Kingdom in particular to elevating mercenarism to the status of a “grave offense”). Under the Rome Statute, mercenarism is not listed as a crime. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute].

57

See Cameron, supra note 55, at 577–79.

58

Convention Against Mercenaries, supra note 3, art. 3(1) (“A mercenary, as defined in article 1 of the present Convention, who participates directly in hostilities or in a concerted act of violence, as the case may be, commits an offence for the purposes of the Convention.”). Articles 7

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that neither Protocol I nor the U.N. Convention Against Mercenaries has explicit provisions making state use of mercenaries an offense.59 Although such provisions were proposed, Western states rejected them, arguing that states are incapable of controlling the actions of their nationals abroad.60 Finally, many commentators have suggested that the reason the international mercenarism prohibition has been under-enforced is that the definition of a mercenary in these instruments is unworkable.61 The definition is composed of six cumulative elements, including that the individual is not a national nor a resident of a party to the conflict, has not been sent by a state that is not a party to the conflict, has been “specially recruited” to fight in that conflict, has taken direct part in the hostilities, and is primarily motivated by a desire for “material compensation substantially in excess” of that paid to regular armed forces to the conflict.62 The motive element renders categorization as a mercenary particularly problematic, since an individual found to meet all of the other five elements of the definition can easily claim some motivation other than money.63 This mercenary definition would be particularly difficult to apply to the majority of private security contractors.64 For example, many of the private security contractors playing supporting or defensive roles may not meet the requirement that a and 9 of the Convention Against Mercenaries deal with the obligation of states parties to take necessary measures for the implementation of the Convention and to establish jurisdiction within its territory for offenses described in the Convention. Id. arts. 7, 9. 59

See Goldstein, supra note 48, at 454.

60

Id.

61

As one commentator famously noted, the definition of a mercenary in these instruments is so unworkable and riddled with loopholes that “any mercenary who cannot exclude himself from this definition deserves to be shot– and his lawyer with him.” Geoffrey Best, Humanity in Warfare: The Modern History of the International Law of Armed Conflict 374 n.83 (1980); see also Sarah Percy, Mercenaries: Strong Norm, Weak Law, 61 Int’l Org. 367, 369–70 (2007) (postulating reasons for which the prohibition on mercenaries might be so weak, including lack of support by powerful Western countries, a weak definition of mercenaries, and failure to address the PMSC problem). See generally Francoise Hampson, Mercenaries: Diagnosis Before Prescription, XXII Neth. Y.B. Int’l l. 3, 14–16 (1991) (arguing that the six-point definition of a mercenary is “unworkable”). Instead of relying on the rarely enforced ban on mercenarism, prosecutions have largely been based on domestic criminal laws. See, e.g., Fallah, supra note 46, at 611 & n.47 (citing the case of French mercenary Bob Denard who was ultimately convicted under French law of “belonging to a gang who conspired to commit a crime” for his part in aiding rebels to attempt a coup in the Comoros Islands).

62

Protocol I, supra note 3, arts. 47.2(a)–(f ). For a more detailed analysis, see Kwakwa, supra note 54, at 70–74.

63

Singer, supra note 13, at 529 (arguing that the motivation element of the definition of a mercenary makes it “unworkable” because the “intent to fight exclusively for profit is often unknowable, and as it lacks good objective proxies, it is difficult to prove”).

64

See, e.g., Emanuela-Chiara Gillard, Business Goes to War: Private Military/Security Companies and International Humanitarian Law, 88 Int’l Rev. Red Cross 525, 568–70 (2006)

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mercenary be specifically recruited to and actually take “direct part” in the conflict.65 The difficulty of drawing a clear distinction between when security contractors are engaged in direct combat activity and when they are not would make this element even more difficult to establish. It would also be difficult to establish that these contractors’ motivation was solely a desire for substantial financial gain;66 many PMSCs are former soldiers with extensive service to their countries, and even if they are not actually motivated by a sense of patriotic duty, it may be difficult to prove otherwise. In the specific context of Iraq or Afghanistan, security contractors who are citizens of either the United States or coalition partners would be disqualified under the provision concerning nationals of a party to the conflict. Iraqi or Afghan nationals hired by these countries would similarly be disqualified under the provision excepting a resident to a territory controlled by a party to the conflict.67 In addition to these legal enforcement issues, the differences between mercenaries and modern private security actors, as well as the unique threats posed by the latter, justify different treatment. While the ban on mercenarism was driven mostly by the historical experience of a few states, it is possible to extrapolate some doctrinal rationales for its criminalization. Cherif Bassiouni, a prominent scholar in the origins and classification of international criminal law, justifies the crime of mercenarism as an extension of the crime of aggression and a threat to international peace and security.68 The crime of aggression usually refers to any use of force by states not justified by self-defense or authorized by the United Nations.69 Since mercenaries are by definition those individuals who are not citizens of a party to the conflict, their participation may be construed as the participation of a neutral in an armed conflict, which may constitute a crime of aggression. The availability of mercenary actors for state action may also be considered a threat to the overall enforcement of international humanitarian law because many of the constraints on the use of force and on the conduct of hostilities are based on (discussing in depth the reasons for which many PMSCs would not meet the six-point cumulative definition of a mercenary). 65

See Protocol I, supra note 3, art. 47.2 (a)–(b); Convention Against Mercenaries, supra note 3, art. 1(a).

66

See Protocol I, supra note 3, art. 47.2(c); Convention Against Mercenaries, supra note 3, art. 1(b).

67

See Protocol I, supra note 3, art. 47.2(d); Convention Against Mercenaries, supra note 3, art. 1(c).

68

M. Cherif Bassiouni, Introduction to International Criminal Law 144–45 (2003); see also G.A. Res. 48/92, pmbl., U.N. Doc. A/RES/48/92 (Dec. 20, 1993) (classifying use of mercenaries as a threat to peace).

69

Bassiouni, supra note 68, at 136–37; U.N. Charter art. 3935; Rome Statute, supra note 56, art. 5.2; Int’l Law Comm’n, Second Session, Principles of International Law of the Charter and Judgment of the Nuremberg Tribunal, 4 Int’l Org. 714, 717–19 (1950) (Nuremberg Principles VI).

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state-centered restrictions; to the extent that states can evade these restrictions by outsourcing to individuals who are at best ambiguously liable under the laws of war, the overall framework of enforcement may be weakened. The high incidence of human rights abuses and war crimes among mercenary armies historically may also make the practice of mercenarism a sufficiently significant threat to the international system.70 The corporatization of privatized force, as well as the advanced independent capabilities that go with that corporate form, has the potential to exponentially increase many of these threats. First, the corporate form and independence of PMSCs more seriously erode the monopoly on force than did mercenarism. Unlike PMSCs, mercenaries provided limited services–little more than additional manpower to existing combat operations.71 Through the corporate form, though, PMSCs can independently provide sustained and complex operations, in-depth training and advisory services, and extensive logistical and operational support–capabilities that any amalgamation of individual mercenaries could never have achieved. Nonstate actors can now buy military force capabilities that previously might have been possible almost exclusively through a state-supported military.72 Even where PMSCs are hired by state actors, the corporation itself usually retains immediate control and supervision of its contractors, thus reducing the control that states have over their own warfare and the overall level of state-based control over uses of force.73 The advanced capabilities of PMSCs may also enable state violence that would otherwise not have been possible because of political or resource constraints. Small or weak states that might otherwise not have been able to raise an army or to build certain advanced capabilities over time can instead buy such capabilities from PMSCs.74 For example, in 1992, the weakened Sierra Leonean government

70

See Goldstein, supra note 48, at 457.

71

It is important to note that the traditional soldier-for-hire mercenaries are not extinct. During the Kosovo war, the Kosovo Liberation Army (“KLA”) hired mercenaries at $4,000 a month. Mercenaries fighting on the Serbian side were compensated by being promised free rein to pillage any area territory they conquered. Singer, supra note 8, at 42–44.

72

At least one commentator has already suggested that philanthropists like Bill Gates or George Soros should fund a PMSC intervention in Darfur–an idea that despite its good intentions may have troubling consequences for the state monopoly on force. Max Boot, A Mercenary Force for Darfur, Wall St. J., Oct. 25, 2006, at A14.

73

See, e.g., Major Karen L. Douglas, Contractors Accompanying the Force: Empowering Commanders with Emergency Change Authority, 55 A.F. L. Rev. 127, 135–36 (2004) (arguing that military field commanders have less control over the conduct of their force because contractors take orders only from their contracting company or from the contracting officer in Washington, D.C.); Minow, supra note 7, at 1008–13 (noting that extensive outsourcing, combined with under-supported oversight, makes it hard for governments to retain control of costs and management of projects).

74

United Nations Comm’n on Human Rts., Report on the Question of the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to

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could not defeat advancing Revolutionary United Front rebels on its own but was able to hire Executive Outcomes to do so.75 Even for states that do have advanced military capabilities, the availability of advanced capabilities in the private sector that can appear to operate independently of the state may enable it to get around certain domestic political constraints. Hiring PMSCs as force multipliers allows states to purchase additional manpower and capabilities without incurring political costs or having to raise support for citizen participation.76 PMSCs often do not attract the same media attention and public scrutiny as enlisted soldiers or other state actors would. If a PMSC is killed in an operation overseas it does not garner the same headlines as if an enlisted soldier were killed. Deploying PMSCs, even large and sustained units of PMSCs, to train, assist, or advise foreign governments may not raise the same congressional or popular political checks that deploying an equivalent number of military or civilian officials would. For example, throughout the 1990s, the Clinton Administration increasingly outsourced U.S. involvement in Colombian antinarcotic campaigns to PMSCs in order to avoid congressional troop ceilings and other domestic constraints on U.S. involvement.77 Moreover, because of their independent capabilities, PMSCs can provide extra manpower and resources without requiring the bureaucratic overhead or decisionmaking processes that might typically accompany such uses of force by democratic states. The thousands of private contractors in Iraq act as an important force multiplier for U.S. operations not only because they provide more manpower without the political costs of sending more troops but also because the U.S. government can manage these additional capabilities with fewer bureaucratic resources or institutional hurdles.

Self-Determination, ¶¶ 116–17, U.N. Doc. E/CN.4/1994/23 ( Jan. 12, 1994) (prepared by Special Rapporteur Enrique Bernales Ballesteros); see also Singer, supra note 8, at 174–75 (noting that the availability of such force may also lead to more state conflicts by upsetting traditional power balances and deterrence effects). 75

See supra notes 15–16 and accompanying text.

76

Avant, supra note 8, at 68 (“Through proxies, state leaders can affect conditions abroad without mobilizing broad support for troops or (sometimes) even money. Policy changes can be instituted with the input of a very few actors, circumventing the domestic institutional processes.”); Jon D. Michaels, Beyond Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War, 82 Wash. U. L.Q. 1001, 1040–41 (2004); Clifford Rosky, Force, Inc.: The Privatization of Punishment, Policing, and Military Force in Liberal States, 36 Conn. L. Rev. 879, 939 (2004); Peter W. Singer, Outsourcing War, 84 Foreign Aff. 119, 125 (2005).

77

Thomas Catan et al., Private Companies on the Frontline, Fin. Times, Aug. 12, 2003, at A15 (suggesting that the United States’ Plan Colombia was politically fe asible only because of a lack of press coverage of any PMSC deaths or incidents that arose); Michaels, supra note 76, at 1024–25 nn.58–59 and accompanying text (noting how the Clinton Administration increasingly used PMSCs like DynCorp and MPRI to evade congressional limitations and public criticism for counter-narcotic operations in Colombia).

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Hiring PMSCs to act in their place may also allow states to avoid political costs at an international level, thus unhinging some of the informal, normative restraints on uses of force. For example, during the conflict in the Balkans in the mid-1990s, the United States wanted to intervene to stop some of the immediate fighting but because of its role in peace negotiations, could not afford to lose the appearance of neutrality.78 Instead, it engineered the hiring of U.S.-based Military Professional Resources Incorporated (“MPRI”) to help train Croat forces so that they could become a better counterweight against Serb aggression in the Krajina region.79 While this use of PMSCs was arguably beneficial for the international community in that instance (because it stopped immediate fighting and loss of life), the ability of outside states to intervene in conflicts without international political costs is not a positive development. In many cases, the interference of outside actors, many of whom do not share the same interests as the warring parties or as those civilians caught in the conflict, may prolong the conflict or complicate peaceful resolution. In addition to reducing checks on state uses of force, the independence of PMSCs may erode state responsibility for the conduct of war making and more generally weaken international humanitarian law compliance. Because of their independence from state militaries, most PMSCs are beyond the reach of international humanitarian law regulations. Article 43 of Protocol I suggests that an individual must be formally incorporated into the armed forces of a state before that state can be held legally responsible for that individual as a combatant.80 Although some contractors may be carrying out traditional military functions or be de facto integrated into the armed forces of a state, they are rarely, if ever, formally incorporated into the armed forces of a state as required by article 43. A second possibility is that PMSCs might be considered a militia or volunteer corps fighting on behalf of their state-client, under article 4(A) of the Third Geneva Convention.81 However, it is unlikely that most PMSCs satisfy the requirement in article 4(A) that they carry arms openly and wear a fixed distinctive sign.82

78

Sarah Percy, Int’l Inst. For Strategic Stud., Regulating the Private Security Industry 12–13 (2006); Michaels, supra note 76, at 1025–29 nn.61–82 and accompanying text.

79

Percy, supra note 78, at 12–13; Michaels, supra note 76, at 1025–29 nn.61–82 and accompanying text.

80

See Protocol I, supra note 3, art. 43.3 (“Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.”); see also Cameron, supra note 55, at 583–84.

81

See Geneva POW Convention, supra note 47, art. 4(A)(2).

82

See id. art. 4(A)(2)(b)–(c). For a fuller discussion of whether some, but certainly not all, private security or military contractors could qualify as combatants under article 4(A)(2), see Cameron, supra note 55, at 584–87; Michael N. Schmitt, War, International Law, and Sovereignty: Re-evaluating the Rules of the Game in a New Century–Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees, 5 Chi. J. Int’l l. 511, 527–32 (2005).

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As a result, many PMSC violations of international humanitarian law do not carry the same consequences for state clients as they would if carried out by a member of that state’s military. After the United States hired MPRI to train Croat forces during the conflict in Bosnia, MPRI reportedly provided direct planning, assistance, and perhaps even engagement for one particularly bloody Croat advance that later raised charges of war crimes for the Croat commanders involved.83 The United States received no criticism for helping one side to engage in further combat, much less for the potential human rights or war crimes that resulted from this assistance. Because they are less likely to be held responsible, states have fewer incentives to establish the same rigorous accountability and oversight measures that they use for their professional militaries and that may prevent many international humanitarian law violations. Where misconduct does occur, states have fewer incentives to enforce international humanitarian law provisions against those individuals. PMSCs hired by states essentially create a corporate shield against state liability for contractors’ actions.84 DynCorp employees hired to help provide the U.S. contribution for the International Police Task Force in Bosnia were found to be extensively involved in sex trafficking in 1998.85 U.S. officials escaped with barely any criticism despite awareness by the Department of Defense of continuing violations as late as 2003.86 With few, if any, legal consequences for the misconduct of these privatized parts of the force, states have fewer incentives to prevent and check any violations of international law than they would if this private outsourcing of legal liability was not possible. Although the increasing public criticism of the misconduct of many PMSCs in Iraq may reverse the trend, the initial lack of legal pressure for the United States to prevent and control PMSC misconduct may also have contributed to the lack of domestic prosecutions and weak contract oversight for PMSC activities in Iraq and Afghanistan.87 Finally, one additional, emerging threat that PMSCs may pose to the international system stems from a combination of the purposes for which they have been hired and from the accountability problems described above. The increasing use of 83

See Michaels, supra note 76, at 1028.

84

See Singer, supra note 76, at 133 (noting that hiring PMSCs allows the United States to engage in activities that otherwise would not be politically feasible because it can always deny “direct participation” and engage without any “limiting public oversight or debate”).

85

See, e.g., Capps, supra note 33.

86

See, e.g., Dep’t of Def. Office of the Inspector Gen’l, Assessment of DOD Efforts to Combat Trafficking in Persons; Phase II–Bosnia-Herzegovina and Kosovo 20 n.14 (2003), available at http://www.dodig.osd.mil/fo/foia/HT-Phase_II.pdf [hereinafter DoD Inspector General Report]; Capps, supra note 33; Robert Capps, Outside the Law, Salon.Com, June 26, 2006, http://dir.salon.com/story/news/feature/2002/06/26/bosnia/ index.html.

87

See Parker, supra note 43 (noting that only one contractor has been prosecuted for misconduct in Iraq or Afghanistan); Broder & Rohde, supra note 20 (noting past oversight issues in U.S. PMSC contracts and recent U.S. reform proposals).

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PMSCs in post-conflict operations may undermine the long-term stability of the region or country in which they are operating–a threat to international peace and security that the individual mercenary did not pose. PMSCs are increasingly given extensive responsibilities in the reconstruction and stabilization of post-conflict environments, including protecting and helping to implement major infrastructure and construction projects, maintaining and operating refugee camps, or simply working with other international actors involved in reconstruction and development initiatives.88 This means that many of the elements for establishing long-term stability in a country may be placed in the hands of actors whose profit motivations push them to focus more on short-term cost effectiveness than on the potential long-term consequences of their actions. For example, many PMSCs operating in a country resort to bribery or black-market trade as the most expedient means of getting the equipment and licenses they need.89 A generous characterization of such practices would be that since PMSCs do not have the same privileges and immunities that the United Nations, the local government, or other foreign actors have in these countries, they often have little choice but to work within the existing rules and conditions. Within conflict or post-conflict zones with fragile to nonexistent legal structures, that often means operating extra-legally. Critics might argue that PMSCs do not care if they reinforce these negative elements so long as they can fulfill their contract with a higher profit margin. Whichever rationale is true, the effect is that PMSCs often are involved in other violations of international and domestic laws.90 As a result, despite being hired to reinforce security and stability, their presence may inadvertently reinforce the criminal elements within that society.

88

See supra notes 19–30 and accompanying text.

89

For example, within Afghanistan, many PMSCs can get around domestic regulations by bribing Afghan officials. PMSCs often also work with local warlords to guarantee protection or to recruit local hires for their projects. See, e.g., U.S. Inst. of Peace, Establishing the Rule of Law in Afghanistan 117 (2004), available at http://www.usip.org/pubs/specialreports/sr117.pdf (exploring how bribery and corruption within the judiciary and other administrative agencies undermine the rule of law in Afghanistan); Interview with U.S. Embassy-Kabul official, in Kabul, Afg. ( Jan. 14, 2007) (on file with author) (“It’s easy to circumvent any local regulations. The normal system [in Afghanistan] is more bribing than rule of law. . . . PSCs are in tight with Afghani officials.”); Interview with Deputy Special Representative in Afghanistan, Council of the European Union, in Kabul, Afg. ( Jan. 15, 2007) (on file with author) (noting that the push for new Afghan regulations on PMSCs has been thwarted because enforcement is “highly subject to corruption. . . . [It comes down to] buying off the right minister.”); Interview with Senior Political Officer, UNAMA, in Kabul, Afg. ( Jan. 18, 2007) (on file with author); Interview with British PSC manager, in the Serena Hotel lobby, Kabul, Afg. ( Jan. 18, 2007) (on file with author) (stating that PMSCs get around domestic regulations through the black market and that some Afghan officials have a financial interest in the black market).

90

Bribing local officials and associating with criminal gangs are both violations of international law. See Bassiouni, supra note 68, at 154, 158.

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A large-scale example of this phenomenon is the way that PMSC hiring practices and cooperation with local warlords have undermined the disarmament progress made in Afghanistan. Many of the large foreign PMSCs hire directly from local warlords. According to a senior political officer with the U.N. Assistance Mission in Afghanistan (“UNAMA”), this significantly undermined the multimilliondollar disarmament process by allowing warlords to keep their militias active.91 “They don’t have the same heavy weapons, but . . . you don’t need heavy weapons to terrorize neighbors, commit crimes, maintain control over an area.” Because the warlords are able to provide jobs–a scarce resource in Afghanistan–for those men loyal to them, they have an additional source of power.92 The UNAMA official said this practice was particularly harmful when PMSCs hired large contingents of former militias in blocks, often under their same former commanders. The American PMSC hired to protect one of the largest road construction projects outside of Kabul, U.S. Protection and Investigations (USPI), has done this most extensively.93 The UNAMA official described one incident in which the former Governor of Ghazni, who was closely affiliated with local warlords, “borrowed back” 200 men, along with their USPI equipment for two weeks to “settle a score.”94 From the perspective of USPI, making a deal with the local warlord may be the most effective (and cheapest) way to ensure the security of the construction company it is hired to protect. For a U.N. or NATO force on a peacekeeping or stabilization mission, long-term stability within the country and maintenance of peace and order are constraining factors that would limit such short-term solutions to a security problem. When short-term stability projects are outsourced, the state client loses control of these types of calculations and the PMSC is free to meet the short-term goal of the project without taking into account the long-term costs or consequences to the state or to international peace and security.95 Such situations demonstrate that the current use of PMSCs as independent partners in implementing objectives critical to international security and stabilization may create additional problems for the international system. This issue is also obviously related to the problems concerning lack of state responsibility discussed above: if PMSC

91

Interview with Senior Political Officer, UNAMA, supra note 89.

92

Id.

93

Id.; see also Barnett R. Rubin, Saving Afghanistan, Foreign Aff., Jan.–Feb. 2007, at 57, 68 (linking U.S. Protection and Investigations’ hiring practices to a warlord who was also reportedly fired from his Ministry of the Interior (MOI) job because he had another MOI official assassinated in January 2002).

94

Interview with Senior Political Officer, UNAMA, supra note 89.

95

This is not to suggest that international actors or other foreign forces always prioritize or perceive long-term stability costs over short-term security needs; however, at the least, creating a sustainable security environment is a more common and prominent goal for these actors than for PMSCs.

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activities were more tightly controlled and monitored, the same long-term consequences or illegality might not result. The corporate form of modern security actors and their independent capabilities present unique threats to the international system, particularly in the way that they undermine international and domestic controls on the use of force. At the same time, however, the corporate form and increasing legitimacy of many PMSCs present additional opportunities for regulation. The following section will discuss how a new IHL standard that requires client-states to take responsibility for PMSC compliance with IHL and other international and domestic legal obligations is not only feasible, but is also the best way to counter many of the threats posed by PMSCs. IV. A BETTER REGULATORY APPROACH: INCREASING STATE RESPONSIBILITY FOR NONSTATE PARTNERS UNDER INTERNATIONAL HUMANITARIAN LAW While the corporate form and advanced capabilities of PMSCs, together with recent state practice in using PMSCs, do pose significant threats to the international system, they may also create opportunities for effective regulation. Because many of these threats stem from the way that PMSCs can weaken state accountability for enforcing IHL and other international laws, the best way to address the threats posed by PMSCs may be to reinforce and strengthen the responsibility of states for the conduct of the private actors they hire. This last section will explore how creating a standard under IHL that openly recognizes the practice of outsourcing to PMSCs for what it is–a strategic tactic of warfare–and requires states to develop accountability and control mechanisms can address some of the threats posed by modern PMSCs. Many of those states in which PMSCs are incorporated or from which they draw their personnel, notably South Africa, the United States, and the United Kingdom, have tried to tighten domestic regulations. However, even with stronger domestic regulations, accountability problems will still arise because of the transnational nature of the private security sector. PMSCs not only tend to work outside of the states in which they are incorporated, but they also often draw a significant amount of their personnel from third-party states that might not be within the reach of the domestic regulation of the states in which they are incorporated. As a result, no matter how strict or well-designed a state’s domestic regulation is, it likely will not be able to reach all of a PMSC’s activities or personnel. Second, domestic regulation by individual states alone is not enough because of the difficulties in enforcing any regulations or legal liability against these highly mobile and transnational actors. Tougher domestic regulation (or prohibition) by individual states–but not by all states–may create a race to the bottom; because PMSCs can be based out of almost anywhere, they could easily move to the state with the least stringent domestic regulations with little disruption to their business. Further, unless states are able to coordinate their approach, PMSCs can easily 184

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evade those domestic legal regulations or liability mechanisms that do exist in their home states. For example, recent attempts by South Africa to ban its citizens or corporations from participating in PMSC work, or mercenarism, have been undermined because of a lack of support by other international actors, notably the United States and the United Kingdom. In 1998, South Africa passed legislation banning South African citizens from engaging in mercenary activity and placing strict licensing restrictions on other types of “foreign military assistance.”96 An estimated 2,000 to 4,000 South African citizens are working for PMSCs in Iraq,97 but without cooperation from U.S. or Iraqi authorities, South Africa has been unable to prosecute more than a handful.98 Without coordinated effort, the home states and client countries cannot hope to constrain the misconduct of businesses that operate thousands of miles away in zones of weak legal accountability. One possible approach would be for the international community to extend the ban on mercenaries to PMSCs; however, given the number of states that actively rely on PMSCs, there might not be enough political support for an international ban. As described in the section above, many powerful Western states originally opposed the criminalization of mercenarism and still refuse to take part in the relevant instruments prohibiting mercenarism.99 Support for extending the mercenary ban to PMSCs is even less likely given their extensive use by many powerful countries and international actors, notably the United States, the United Kingdom, and other countries engaged in U.N. missions. Furthermore, with the exception of South Africa, those states that are most involved with PMSCs are already moving toward regulation rather than prohibition. The United Kingdom, the United States, and other NATO partners–many of whom have been both important client-states and often the home countries of PMSCs–have already been moving toward a regulatory approach and thus would be less likely to put up the type of resistance that Western states traditionally posed to the mercenarism ban.100 Those states in which 96

Regulation of Foreign Military Assistance Act 15 of 1998 §§ 2, 4 (S. Afr.).

97

Nathan Hodge, Army for Hire, Slate, Aug. 31, 2006, http://www.slate.com/id/2148608.

98

Integrated Regional Information Networks (IRIN), South Africa: Authorities Target Alleged Mercenaries, Feb. 4, 2004, available at http://www.irinnews.org/report.aspx?reportid=48441.

99

See, e.g., Michael J. Matheson, Remarks in Session One: The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 Am. U. J. Int’l L. & Pol’y 419, 426 (1987) (establishing the U.S. position that the prohibition on mercenary activity found in article 47 to Protocol 1 is not a part of customary international law); supra notes 51, 56, 60 and accompanying text (describing instances of Western hostility to an international prohibition on the use of mercenaries).

100

See generally Hans Born, Marina Caparini & Eden Cole, Geneva Centre for the Democratic Control of Armed Forces (DCAF), Policy Paper No. 20, Regulating Private Security in Europe: Status and Prospects, 4–5, 7–11 (2007) (arguing for broader E.U.-wide regulation of PMSCs and describing some initial regulatory steps taken by E.U. bodies); Percy, supra note 78, at 25–29, 32–33 (summarizing U.S. and British regulatory approaches); Broder & Rohde, supra note 20 (describing recent U.S. regulatory proposals).

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PMSCs frequently operate, including Iraq and Afghanistan, have also begun to impose regulations on PMSCs rather than banning them outright.101 Moreover, without such widespread state support, it would be easy for PMSCs to evade the terms of the ban on mercenarism. As discussed earlier, enforcement of the ban on mercenaries has been weak in the past because it is so easy for PMSCs to get around the definition of mercenaries.102 For example, given that civilians have traditionally been involved in supporting militaries, where should the international community draw the line between providing food supplies and logistics, or helping provide maintenance and direct operating support to advanced weapons systems? Should PMSCs be permitted to protect a private airport or supply convoys in Iraq, even though they may be more likely to be attacked and thus more likely to be engaged in “defensive” combat, but not permitted to protect the inner line of a military compound or provide advanced intelligence analysis that might be more directly related to military activities but less likely to result in direct combat or IHL violations? If the international community tried to enforce a ban, such definitional ambiguity would make it easy for those states who want to continue using PMSCs to get around the prohibition. Given the number of states that are actively using PMSCs, there likely would be many states that would exploit this loophole, making a ban on mercenarism unlikely to work. In addition, the fact that PMSCs operate as open corporations and that many seek contracts from international actors who care about their reputation may create opportunities for regulation. PMSCs engage in open recruiting and marketing of their services103 and thus must comply with operating legal and regulatory regimes.104 They are at least technically accountable to domestic legal regulations, even if the transnational nature of their business makes these regulations difficult to enforce. Over time, market segmentation and reputational incentives have generated a cadre of more credible PMSCs that take efforts to comply with international and domestic laws and regulations and to maintain credibility.105 Given the opportunities for regulation to be successful and the political hurdles to making a ban effective, the international community should attempt to address the PMSC problem

101

Id.; see also Interview with Senior Political Officer, UNAMA, supra note 89 (describing efforts between UNAMA and Afghan ministries to develop Afghan regulations and registration procedures for PMSCs).

102

See supra notes 63–67 and accompanying text.

103

See, e.g., James Dao, ‘Outsourced’ or ‘Mercenary,’ He’s No Soldier, N.Y. Times, Apr. 25, 2004, § 4, at 3.

104

This is not to suggest that all PMSCs operate above-board or that all attempt to be perfectly compliant with the law.

105

Benjamin Perrin, Promoting Compliance of Private Security and Military Companies with International Humanitarian Law, 88 Int’l Rev. Red Cross 613, 628–30 (2006) (noting that market segmentation is already creating a cadre of “good firms” and “bad firms”).

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collectively through regulation rather than by extending the prohibition on mercenaries to PMSCs. Given the role of PMSCs in modern peacekeeping and conflict operations, the most effective coordinated international approach is likely to be the creation of a principle under IHL. Outsourcing certain elements of the logistics, training, security, and technical support for contingency operations is as much a part of modern military strategy as the choice of weaponry, targeting, or other tactical issues. Openly recognizing this under IHL may be more workable than trying to identify PMSCs as mercenaries, combatants, civilians, or other categories that do not exactly describe their role in the international system. It also seems appropriate for the purposes of IHL. Other means and methods of warfare–from the level of restraint that militaries should exercise with regard to collateral damages to the particular type of weapons used to whether reparations should be made to any civilians in response to warfare–are regulated under international humanitarian law. Thus, one feasible solution to some of the issues with PMSC use would be to establish an IHL principle requiring states that used nonstate actors as complements to military operations to establish oversight and control mechanisms that would ensure their compliance with international and domestic laws to the extent possible. An IHL principle requiring a degree of oversight over PMSCs would ensure that states take a more collective approach toward the global PMSC problem, but still allow states a degree of flexibility in regulating these nonstate actors under their domestic laws. An IHL principle that made it clear that PMSCs may be a lawful tool of warfare if used with appropriate oversight would eliminate some of the current inconsistencies among state approaches– with some states like South Africa trying to ban them and others like the United States and the United Kingdom trying to regulate them. Because the proposed IHL standard would require national interpretation and implementation, states would still have flexibility to provide oversight and regulation that worked with the unique contracting, outsourcing, and registration requirements of their own domestic laws.106 This is not atypical for IHL regulations. IHL often sets out general principles for states to follow without specifying exactly how such principles should be implemented. For example, article 57.2 of Protocol I provides that states parties give “[e]ffective advance warning . . . of attacks which may affect the civilian population, unless circumstances do not permit,” but leaves to the discretion of states parties how to determine what effective advance warning would be in the circumstances of a conflict.107 The proportionality principle of article 57.2 of Protocol I requires states to refrain from attacks 106

For an example of how such IHL regulations might be implemented nationally, see National Implementation of International Humanitarian Law, 88 Int’l Rev. Red Cross 197 (2006), available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/review-861-p197/$File/irrc_ 861_Nat_ Impl_DIH.pdf (listing national implementing legislation and regulation for laws of war for all states from July to December 2005).

107

Protocol I, supra note 3, art. 57.2.

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that would result in a disproportionate loss of civilian life relative to the “concrete and direct military advantage anticipated.”108 States have implemented this principle primarily by developing their own procedures for determining whether or not anticipated civilian casualties would be considered proportionate. The fact that the international principles themselves are indefinite and leave implementation to states parties does not mean that they are not effective. One counterargument to the suggestion that an IHL principle might improve the accountability of PMSCs globally is that national implementation of IHL is often weak, particularly when it comes to more controversial or politically sensitive issues.109 While this argument has some merit, an IHL provision may still be useful in driving the issue, solidifying emerging norms, and coordinating state approaches. First, as described above, a negotiated and adopted IHL provision may at least ensure that all states are taking the same approach of regulating rather than banning these actors. Second, an IHL standard at least forces states to consider the issue and to develop some greater level of compliance, even if weak, than if the regulation had not existed.110 Further, this IHL standard would not be creating a new norm from scratch as much as it would be codifying and reinforcing an emerging state approach toward improving accountability for PMSCs. The trend among states–particularly the client states, home states, and states in which PMSCs operate that are most important to PMSC activities–to regulate rather than ban PMSCs suggests there will be enough political support for this IHL principle to be implemented credibly.111 Reinforcing this trend with an IHL principle may actually push those

108

Id.

109

For example, many domestic and international critics have argued that the United States has interpreted its obligations under the Convention Against Torture so narrowly as to make the prohibition on torture meaningless. See, e.g., American Civil Liberties Union, Enduring Abuse: Torture and Cruel Treatment by the United States at Home and Abroad 1 (2006), available at http://www.aclu.org/safefree/torture/torture_report.pdf (decrying U.S. “selective interpretation” of its international obligations to justify interrogation techniques of terrorist suspects); see also Int’l Comm. of the Red Cross, General Problems in Implementing the Fourth Geneva Convention (1998), http://www.icrc.org/Web/Eng/ siteeng0.nsf/html/57JPF6 (describing some existing problems with the implementation of the Fourth Geneva Convention by states parties).

110

International legal scholarship is replete with theories of how treaty commitments can make an impact on state behavior, regardless of whether they produce direct enforcement of provisions or not. See, e.g., Ryan Goodman & Derek Jinks, Measuring the Effects of Human Rights Treaties, 14 Eur. J. Int’ll L. 171, 173–78 (2003); Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 Yale L.J. 1935, 1939 (2002); Harold Hongju Koh, Why Do Nations Obey International Law?, 106 Yale L.J. 2599, 2599 (1997) (book review).

111

See, e.g., Percy, supra note 78, at 25–29, 32–33. Additionally, The Afghan Ministries of Interior and Justice are in the process of promulgating regulations for the registration and licensing of all private security organizations, Afghan and foreign. See Copy of proposed regulation, “Law on Activity of Private Security Organizations in Afghanistan,” on file with author (current as of Aug. 2007).

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states that are already inclined to develop stricter regulations to be more proactive. For example, the United Kingdom has been debating domestic regulatory proposals since the late 1990s, resulting in a government-produced Green Paper in 2002, but it has yet to adopt any concrete legislation.112 Given this underlying tendency toward a stronger accountability framework, an IHL requirement for stronger oversight and controls may have a real impact in improving domestic regulation. Beyond the potential to harmonize the international community’s approach and to strengthen and reinforce domestic regulatory initiatives, creating an IHL principle may also be important in terms of making it more difficult for states to outsource liability to these private actors. As discussed in the previous section, many of the more serious threats to international humanitarian law and human rights enforcement stem from the fact that states are able to deny accountability for any misconduct by PMSC nationals and have few incentives to prevent or enforce international legal crimes or IHL regulations against these actors. If such a principle were created under IHL and states followed through with implementing legislation or regulations, the act of establishing such controls and recognizing a relationship and a degree of responsibility for these actors may in itself trigger full state responsibility for PMSC actions. If a state is regularly monitoring and ratifying the actions of PMSCs in accordance with certain regulations of war, then if one of those private actors engages in misconduct, the state may be less able to deny responsibility. The case of David Passaro, a CIA contractor who was successfully prosecuted in the United States for crimes committed while employed in U.S. operations abroad, will demonstrate how these IHL-based regulations and tighter state responsibility mechanisms might improve the accountability of PMSCs. Prosecutors charged Passaro with several counts of assault for beating an Afghan detainee during interrogation on a U.S. base in Afghanistan.113 Despite the fact that Passaro had beaten the detainee to death, the prosecution could not assert a murder charge and was only able to prevail on one of the counts of felony assault.114 With the scene of the crime, the witnesses, and other evidence thousands of miles away in a conflict zone, the prosecutor had to rely on other federal agencies with contacts and resources in Afghanistan, including those agencies that dispatched an investigator to the scene within 72 hours.115 Even given these immediate and significant investigatory resources, the prosecution would not have been possible except that the key Afghan witness was willing and able to travel to the United States, and other witnesses who

112

See Percy, supra note 78, at 32–33.

113

See United States v. Passaro, No. 5:04-CR-211-1 (E.D.N.C. June 17, 2004).

114

Telephone interview with individual involved in the Passaro prosecution (Apr. 18, 2007) (on file with author).

115

Id. (stating that other U.S. agencies dispatched investigators to the scene within 72 hours and provided significant investigatory resources and cooperation throughout the prosecution).

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could testify as to the body (because there was no autopsy) were U.S. citizens who could be subpoenaed.116 Although Passaro used methods that verged on torture or cruel and inhumane treatment,117 prosecutors never considered charging Passaro with human rights or war crimes violations under the War Crimes Act.118 This was in significant part due to the additional burdens of proof in these types of charges, such as whether there was an ongoing conflict, whether the victim was a prisoner of war, and whether the accused was acting as an agent of the U.S. government.119 Regulations enacted under an IHL principle might have prevented this type of crime by requiring a certain level of oversight and control within the military hierarchy surrounding Passaro. When the United States is party to international treaties regulating the means or methods of warfare, it incorporates the treaties’ provisions and amendments into its domestic military or federal legal structure to the extent possible.120 If a principle were adopted such that states parties must provide oversight and accountability for the PMSCs they employ in contingency operations, the U.S. military would respond by adopting its own interpretation of these standards in its own military code. To take the example of the Passaro case, this might have resulted in greater oversight and review of Passaro’s behavior, even though he was not a uniformed service member. The four 82nd Airborne members who testified against Passaro assisted in restraining the detainee and then stood by as Passaro beat the detainee to death over the course of three days.121 Those involved 116

Id.

117

See Weigl, supra note 1 (“Prosecutors say Passaro created a ‘chamber of horrors’ for Wali, ordering soldiers not to allow him to sleep, limiting his access to food and water and subjecting him to two consecutive nights of interrogation and beatings. . . . [S]oldiers testified that Passaro kicked Wali in the groin hard enough to lift him off the ground and jabbed Wali in the abdomen with a flashlight.”).

118

Telephone interview with individual involved in the Passaro prosecution, supra note 114.

119

Those close to the case also suggested this was part of the prosecution’s strategy to deny Passaro any defense that he was acting under the color of the law. Id. To allege war crimes or human rights violations might have implied that Passaro was acting under some governmental authority. Id.

120

See, e.g., Dep’t of Defense, Directive 5100.77 DOD Law of War Program, para. 5.3.1 (Dec. 9, 1998), available at http://biotech.law.lsu.edu/blaw/dodd/corres/pdf2/d510077p.pdf (last visited Nov. 19, 2007) (replaced by Dep’t of Defense Directive 2311.01E, DOD Law of War Program, para. 4.1 (May 9, 2006), available at http://www.dtic.mil/whs/directives/corres/ rtf/231101x.rtf (last visited Nov. 19, 2007)) (establishing a Department of Defense Laws of War program to implement the laws of war to U.S. involvement in armed conflicts and to apply the “principles and spirit” of the laws of armed conflict in all other contingency operations); War Crimes Act, 18 U.S.C. § 2441 (2000) (making violation by U.S. nationals of the war crimes identified in the 1949 Geneva Conventions a crime under U.S. law).

121

See Andrea Weigl & Matthew Eisley, Passaro Trial Raises Issue of Soldiers’ Roles, News & Observer, Aug. 19, 2006, at A1 (“Not only could the four guards who assisted Passaro have been charged as accomplices, but all six of the guards who knew about the abuse could have been charged under military law with failing to report a crime, according to experts and witness testimony.”).

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in the case said that the U.S. soldiers were hesitant to question Passaro because he was a CIA contractor.122 However, if the laws of war made a certain degree of oversight a standard of outsourcing critical military functions such as interrogating prisoners, Passaro might never have been given the unquestioned discretion to treat the detainee that way. Depending on how the IHL principle was implemented in U.S. domestic or military law, it might have given the prosecutor additional tools to prosecute someone in Passaro’s position. In the same way that domestic prosecutors sometimes resort to conspiracy or other easier-to-prove charges to convict criminals, proving that care had not been taken in oversight, or that the PMSC had engaged in banned functions, may be easier than establishing murder without an autopsy or necessary witnesses. The soldiers who stood by or higher-up officials who did not provide other oversight mechanisms may be charged with a violation of the laws of war under these newly incorporated IHL prohibitions. A few successful prosecutions on such charges would encourage militaries of countries like the United States– countries that do not like to have the bad press of war crimes accusations–to act more responsibly in terms of the scope and degree of outsourcing. While this proposal could be effective over an important subset of PMSCs, it could not address all the issues raised by the PMSC phenomenon. First, while such regulation would likely have a significant impact on those PMSCs seeking projects with credible international actors, there will continue to be some unscrupulous PMSCs that will cater to less credible actors and will likely be unreachable by such regulations. Although beyond the scope of this paper, other regulatory initiatives could perhaps focus on amending other provisions of international law–whether those of mercenarism, of criminal gangs, or others– to address these threats. Secondly, regulation may only reach those PMSCs directly contracted by states. Depending on how the interpretation of these proposed IHL provisions develops, both domestically and internationally, state oversight, responsibility, and control could still be obscured by the many different layers of subcontracting. Regulation also may not address those PMSC projects that are encouraged by state actors but not directly funded by them. An example of this type of project is the thousands of PMSCs who are facilitating reconstruction and stabilization efforts in Iraq and Afghanistan but are hired by private actors under contracts or subcontracts.123 Despite these limitations, the proposed principle would at the very least deal with the accountability issues of a large subset of PMSC activities, as well as address the weakness of IHL in capturing the significance of these nonstate actors in state uses of force. In addition, since many PMSCs concurrently work on projects both for governmental and nongovernmental actors, in order to comply with the IHL principle on PMSC oversight and control, and those national regulations

122

Telephone interview with individual involved in the Passaro prosecution, supra note 114.

123

See supra notes 28–29 and accompanying text.

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implementing this principle, PMSCs may have to enact across-the-board internal rules and practices that improve their overall conduct and compliance with international and domestic law, even for those projects lacking a nexus with a state actor. V. CONCLUSION Actors in the modern security industry are not simply revamped mercenaries. Their resources and their increasingly prominent roles in humanitarian aid, contingency operations, and other military or security operations worldwide present unique and perhaps more troubling challenges for international peace and security. In particular, their corporate form brings with it advanced, independent capabilities that may disable domestic and international restraints on the use of force and may weaken the degree of state responsibility for holding those engaged in its military and security operations responsible for IHL and human rights violations. While these are significant threats to the international system, market forces have consistently been pushing these actors to operate openly and within the constraints of international and domestic law. This is particularly true for those PMSCs whose target clients are credible international actors who care about reputational costs and international legal compliance. Therefore, developing a principle under IHL that would require state clients to establish mechanisms for ensuring that any PMSC to which they outsource complies with international and domestic legal norms and regulations may significantly address the more serious threats posed by PMSCs. The international community should attempt to define whether and to what extent it considers the private security industry to be a threat and develop a coordinated response. The current ambiguous status, lack of coordinated regulation, and outdated definitions of mercenarism only exacerbate the current threats posed by this industry. If IHL is not able to adapt to these threats by recognizing the role of these nonstate actors in state uses of force, then the availability of such advanced, independent force capabilities may seriously undermine much of the validity and effectiveness of the current state-centered mechanisms governing the use of force.

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TERROR/TORTURE Karima Bennoune†

Copyright © 2008 Copyright for material published in the journal is held by the UC Regents except where otherwise noted.; Karima Bennoune. Originally published in Berkeley Journal of International Law (2008)

ABSTRACT In the face of terrorism, human rights law’s requirement that states “respect and ensure” rights necessitates that states take active steps to safeguard their populations from violent attack, but in so doing do not violate rights. Security experts usually emphasize the aspect of ensuring rights while human rights advocates largely focus on respecting rights. The trick, which neither side in the debate has adequately referenced, is that states have to do both at the same time. In contrast to these largely one-sided approaches, adopting a radical universalist stance, this Article argues that both contemporary human rights and security discourses on terrorism must be broadened and renewed. This renewal must be informed by the understanding that international human rights law protects the individual both from terrorism and the excesses of counter-terrorism, like torture. To develop this thesis, the Article explores the philosophical overlap between both terrorism and torture and their normative prohibitions. By postulating new discourses around the paradigm of terror/torture, it begins the project of creating a new human rights approach to terrorism.

†

Karima Bennoune is an Associate Professor at Rutgers School of Law - Newark. She would like to thank James McGhee, Emily Anderson, and Kevin Murphy for excellent research assistance. In addition, she would like to thank Paul Axel-Lute, Vera Bergelson, Sherry Colb, Claire Dickerson, Stephanie Farrior, Gary Francione, Anna Gelpern, John Leubsdorf, James Pope, Louis Raveson, Sabrina Safrin, Gita Sahgal, and George Thomas, and all the participants in the Feb. 8, 2007 Rutgers Law School - Newark Faculty Colloquium, for their useful comments on successive drafts. Participants in the Human Rights Workshop at the Yale Law School’s Orville Schell Center for International Human Rights, to whom a draft was presented, also provided useful feedback. This article was supported by funding from the Dean’s Research Fund at Rutgers School of Law-Newark. Remaining shortcomings are the sole responsibility of the author.

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Terror/Torture

I. INTRODUCTION: THE LIGHT OF EL MANARA In the Algerian film El Manara,1 three young friends’ lives are forever transformed by terror and torture in the context of Algeria’s civil war. In that real-life North African conflict, the forces of the state battled the forces of armed fundamentalism2 for a decade beginning in the early 1990s.3 One hundred thousand people or more perished in what one Algerian academic described as “a September 11th every year for a decade.”4 Terrorist bombings and murders, carried out by non-governmental armed groups, claimed countless victims.5 Both the army and its opponents routinely tortured their respective captives.6 Though fundamentalist ideology7 1

El Manara (Production Machaho 2004). For a discussion of issues surrounding the making of this film, see Michel Amarger, Rencontre avec Belkacem Hadjaj, L’Algérie face à son histoire récente (Apr. 9, 2005), available at http://www.africine.org/?menu=art&no=4367. Amarger, the editor of, Africiné, the official website of the African Federation for Film Criticism, says that the characters’ trajectories “allow us to relive the events which threw Algeria into violence.” Id. (translated by author).

2

For definition of this controversial term, see infra notes 244–249 and accompanying text.

3

See, e.g., Mahfoud Bennoune, Esquisse D’une Anthropologie De L’algérie Politique (Editions marinoor 1998); Hugh Roberts, Under Western Eyes: Violence and the Struggle for Political Accountability in Algeria, Middle E. Rep., Spring 1998, at 39–42; Women Living Under Muslim Laws (Wluml), Compilation of Information on the Situation in Algeria (1995).

4

These are the words of Dr. Mahfoud Bennoune, cited in Karima Bennoune, “A Disease Masquerading as a Cure”: Women and Fundamentalism in Algeria: an Interview with Mahfoud Bennoune, in Nothing Sacred: Women Respond to Religious Fundamentalism and Terror 75, 86 (Betsy Reed ed., 2002).

5

Mahfoud Bennoune, Comment l’integrisme a produit un terrorisme sans précédent, El Watan, Nov. 6, 1994, at 7.

6

On torture of women by armed groups, see Karima Bennoune, S.O.S. Algeria: Women’s Human Rights Under Siege, in Faith and Freedom: Women’s Human Rights in the Muslim World 184 (Mahnaz Afkhami ed., 1995); see also Compilation of Information, supra note 3.

7

In the Algerian context, the fundamentalist political movements advocated banning the mixing of the sexes in public places and strict clothing restrictions for women, and opposed women working. See Rabia Abdelkrim-Chikh, Les enjeux politiques et symboliques de la lutte des femmes pour l’égalité entre les sexes en Algèrie, Peuples méditerranéens, Nos. 48-49, July–Dec. 1989. Moreover, their supporters carried out attacks on women who lived outside their paradigm. See Testimony on the Case of Oum Ali, an Algerian Woman, Vienna, June 1993, in Demanding Accountability: The Global Campaign and Vienna Tribunal for Women’s Human Rights (Charlotte Bunche & Niamh Reilly eds., 1994). Meanwhile, their associated armed groups carried out widespread attacks on civilians, including many women, as well as attacks on the Algerian military, to further this agenda. See Miriam Shahin, Algerian Women Fight Terror, Jordan Times, Nov. 13, 1994, at 1; Youssef Ibrahim, Bareheaded, Women Slain in Algiers: Killings Follow Islamic Threat, N. Y. Times, Mar. 31 1994, at A3. This was true both before and after the cancellation of the elections of 1992 which the Islamic Salvation Front (FIS) was likely to have won. See Louisa Aït-Hamou, Women’s Struggle against Muslim Fundamentalism in Algeria: Strategies or a Lesson for Survival?, in Warning Signs of Fundamentalisms 117 (Ayesha Imam et al., eds., 2004). For a thorough discussion of the

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represented a particular assault on concepts of human rights, in practice, both sides committed grave abuses.8 The circle of death was complete. These events reverberate through the lives of the main characters of El Manara. In the film, two male friends, Fawzi and Ramdane, compete for the affection of fellow student Asma in the years leading up to the conflict. Ultimately, Fawzi becomes a journalist and marries Asma, while Ramdane turns to fundamentalism and joins one of the armed groups that terrorizes the country. This extremist militia later abducts Asma and Fawzi. When his father pays his ransom, Fawzi is released, and must leave Asma behind in the custody of the fundamentalist armed group. Asma’s fate is similar to that of many women abducted by armed groups9 in the actual Algerian civil war: she is raped by her captors.10 One of the rapists is Ramdane, her former suitor. Subsequently, remorse overcomes Ramdane and, fearing for his own life from even more extreme elements, he helps Asma escape. But as they flee, he is captured by the Algerian army. Fawzi, the journalist and former human rights activist, who does not yet know his wife has been freed, gains access to the cell where his onetime friend is now being held by the military. Moved by his desperation to find and save Asma, he tortures Ramdane with a blow torch. Ultimately, everyone’s life is destroyed. The circle of destruction is complete.

human rights impact of fundamentalisms more broadly, including termiAlnological problems, see infra notes 243–258 and accompanying text; Human Rights and Fundamentalisms, 100 Proc. Am. Soc. Int’l L. 407–421 (2006); Rights and Democracy, Fundamentalisms and Human Rights: Report of the Meeting (2005). 8

The Algerian government also engaged in a range of grave human rights abuses, including “disappearances,” extra-judicial executions and torture. See, e.g., Human Rights Watch, Human Rights in Algeria: No one is Spared (1994). The efforts of the mainstream human rights movement during this time focused largely on these abuses.

9

Leila Hessini, From Uncivil War to Civil Peace: Algerian Women’s Voices 28 (1998). Hessini, and many other Algerian feminists, have been very critical of what they see as the failures of mainstream human rights organizations to document armed group abuses against women during the conflict. Id. at 26–27. Central to the argument in this essay, she calls for “a more comprehensive approach to human rights abuses . . . to document and render visible the manifold types of violence that women experience” in such situations. Id. at 27.

10

Here we begin to see the overlaps between terror and torture. This rape, carried out by an armed group as part of a strategy to subjugate and punish the female population, was clearly an act of terrorism. See, e.g., Amy Ray, The Shame of It: Gender-Based Terrorism in the Former Yugoslavia and the Failure of International Human Rights Law to Comprehend the Injuries, 46 Am. U. L. Rev. 793 (1997). But, in accordance with international humanitarian law, and understandings from the field of women’s human rights, it may also be seen as an act of torture. See, e.g., United Nations Economic and Social Council, Report of the Special Rapporteur, Mr. Nigel S. Rodley, submitted pursuant to Commission on Human Rights Resolution 1992/32, ¶¶ 15–24, U.N. Doc. No. E/CN.4/1995/34. For more information on these questions, see the detailed discussions of the international law definitions of terrorism and torture, infra notes 76–109 and 130–147 and accompanying text.

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As unlikely as El Manara’s plot may sound, similar scenarios played out in too many true stories during Algeria’s “décennie noir.”11 I saw the film in Algiers in May 2005. Of course, audiences were only able to go to a movie theater because part of Algeria’s coercive struggle against terrorism had been successful.12 This article begins with El Manara because the debate about terrorism and human rights in the U.S. often proceeds on the tacit assumption that the U.S. situation post-September 11 is sui generis.13 Furthermore, much international law scholarship in English frames terrorism as a largely East-West phenomenon that mainly targets Western liberal democracies.14 Such a view is both ahistorical and unhelpful. For years, many countries around the world, Algeria being but one of them, have been contending with horrific patterns of terrorism, including fundamentalist terrorism, which have claimed tens of thousands of lives.15 Governments of many political stripes have been regularly responding to (or provoking, depending on your viewpoint) this violence with atrocity.16 This is a global problem requiring a global response. I also begin with El Manara because it displays the terrible complexity of the web of human rights issues that arise out of terrorism and counter-terrorism, a web more tangled than either human rights or security discourses acknowledge. Furthermore, it explicitly confronts the particular impact of terrorism and torture 11

The online version of Al Ahram, one of Egypt’s most important newspapers, described El Manara as “a faithful and brutally direct depiction of Algerian society during the rise of fundamentalist Islam . . . .” Abortive Reunions, Al-Ahram Weekly Online, Dec. 9–15, 2004, http://weekly.ahram.org.eg/2004/720/cu4.htm.

12

After initially failing to respond to the problem of terrorism, the Algerian government and military, as well as paramilitary organizations, responded vigorously to the armed groups with a domestic version of the “war on terror.” This both improved security in many areas for the civilian population, and led to gross violations of human rights. See, e.g., Amnesty International, Algeria: Torture in the “War on Terror”: A Memorandum to the Algerian President, AI Index MDE 28/008/2006 (Apr. 18, 2006).

13

For an example of such a view, see Ruth Wedgwood, Countering Catastrophic Terrorism: An American View, in Enforcing International Law Norms Against Terrorism 103 (Andrea Bianchi ed., 2004).

14

For an example of such scholarship, see Philip B. Heymann, Terrorism and America (2000).

15

Such countries include Sri Lanka, Uganda, Afghanistan, and Colombia. See Human Rights Watch, Improving Civilian Protection in Sri Lanka (2006); Human Rights Watch, the Scars of Death: Children Abducted by the Lord’s Resistance Army in Uganda (1997); Amnesty International, Afghanistan: International Responsibility for Human Rights Disaster (1995); Amnesty International, Colombia: Political Violence: Myth and Reality (1994).

16

See, e.g., Amnesty International, “Disappearances” and Political Killings: Human Rights Crisis of the 1990S (1994) 2–46 (discussing “counter-insurgency” related human rights violations in Sri Lanka and Colombia); see generally Noam Chomsky, Pirates and Emperors, Old and New: International Terrorism in the Real World (2002) (providing a critical perspective on terrorism and counter-terrorism).

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on women, even re-enacting a rape by an armed group–a radical depiction for Algerian cinema. It neither shies away from this grim reality, nor balks at exploring the human rights implications of religious fundamentalism. Most of all, though, this article begins with the film El Manara because of the absence of selectivity in its moral outrage regarding attacks on human dignity, whether those attacks come in the form of terrorism, or of torture.17 It is against this backdrop that I wish to think through contemporary difficulties regarding the human rights response to terrorism and counter-terrorism. As a human rights lawyer, I begin with the notion that the human rights movement and its fellow-traveling scholars need to radically rethink approaches to terrorism and human rights.18 We must comprehend and respond to terrorism as a human rights violation, in and of itself.19 At the same time, security proponents need to expand their notion of safety to include fundamental aspects of human rights, including the right to be free from torture.20 Those who justify torture, and other atrocities, in the name of fighting terror undermine the very respect for human dignity and the universality needed to sustain comprehensive global norms against terrorism. Neither the human rights depiction of current events nor the security one is multifaceted enough to comprehend the situation now facing the international community. Furthermore, abuses on which the human rights movement classically focuses, like torture, rest on the same philosophical assumption as practices, like terrorism, which claim the attention of many concerned with security. This assumption is the permissibility of instrumentalizing severe and deliberate human suffering. Such a commonality suggests that, to take the approach that best champions human

17

This is in stark contradistinction to the many particularist responses to outrages since September 11. See infra note 64.

18

I fully recognize that this is a time when the human rights community feels that both it and the norms it invokes to defend victims of human rights abuse are under attack. See, e.g., International Council on Human Rights Policy, Human Rights after September 11, 19–38 (2002). Human rights groups, including those whose practices related to terrorism are reviewed here, have made tremendous contributions to safeguarding these rules and exposing violations related to counter-terrorism in the years since September 11. The critique below should be read in this context.

19

See infra notes 192–217 and accompanying text.

20

This is similar to the claims made by advocates of the concept of human security. According to the Human Security Centre, “While national security focuses on the defense of the State from external attack, human security is about protecting individuals and communities from any form of political violence . . . [h]uman security and national security should be—and are—mutually reinforcing.” The Human Security Centre, the Human Security Report 2005, War and Peace in the 21st Century, What is Human Security? (2005), available at http:// www.humansecurityreport.info/content/view/24/59/. An even fuller understanding has been promulgated by the United Nations Development Programme (UNDP). It “equates security with people rather than territories.” United Nations Development Programme, Human Development Report (1994), available at http://hdr.undp.org/reports/global/1994/en/.

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dignity, one must look attentively at the human rights impact of both what is labeled “terrorism” and what is labeled “counter-terrorism.” Though most often considered the discrete starting points of separate discussions, in the current moment the two halves of terror/torture are woven together in a fabric of callousness and othering.21 To eradicate one, we must eradicate the other. Examined holistically, this is the clear message of human rights law. Such an understanding should lead intrinsically to staunch rejection of both terror practices and torturous ones. The human rights community should oppose the circles of death and destruction depicted in El Manara by presenting an alternative: the circle of decency. Instead of offering such a holistic response that encompasses the threats to human dignity from both terrorism and the “war on terror,” international law writers either seem to engage with terrorism or with counter-terrorism, with security or with human rights, with terror or with torture, with the abuses of one side or with another. Many security-oriented commentators write only about what non-state actors are doing, while many human rights commentators seriously scrutinize only, or primarily, what states are doing. These narrow perspectives, focusing only on one side of the “war on terror,”22 sharply limit the international lawyer’s ability to grasp 21

Discourses of othering are central to justifications of both terrorism and torture. These are often based on discriminations of various kinds, including on the basis of race, religion, ethnicity, social class and gender. See infra notes 65 and 185–188 and accompanying text. For an exploration of the relationship between torture and discrimination, see Nigel Rodley, The Treatment of Prisoners Under International Law 14–15 (1999); Amnesty International, Combating Torture: A Manual for Action (2003), available at http:// www.amnesty.org/resources/pdf/combating_torture/sections/section1-3.pdf. The latter report notes that “Torture feeds on discrimination. Torture involves the dehumanization of the victim, the severing of all bonds of human sympathy between the torturer and the tortured.” Id. Exactly the same thing may be said of terrorism. For an interesting discussion of how terrorist groups “dehumanize the group’s purported enemies”, see Jessica Stern, Terror In The Name of God: Why Religious Militants Kill 9–31 (2003). The challenge is to overcome these discourses and try to think about these issues in universal terms. Part of this involves forcing ourselves to ponder whether we would want to be treated in the way we are advocating for others. Universality radically alters one’s sense of the discourses that are acceptable here. See infra notes 185–188 and 278–282 and accompanying text.

22

This label is used by the Bush Administration to describe the fight against Al Qaeda and other terrorist groups. Eric Schmitt and Thom Shanker, U.S. Officials Retool Slogan for Terror War, N.Y. Times, July 26, 2005, available at http://www.nytimes.com/2005/07/26/ politics/26strategy.html. Other versions of the phrase, such as “war against terrorism” and the “global war on terror” (or even the jaunty acronym “G-WOT”) are sometimes used interchangeably. In 2005, some had suggested substituting a term that would emphasize the ideological aspects of the battle, such as “a global struggle against violent extremism.” In 2005, some had suggested substituting a term that would emphasize the ideological aspects of the battle, such as “a global struggle against violent extremism,” or a “global struggle against the enemies of freedom.” See id.; Matthew Davis, New Name for ‘War on Terror’, BBC News Online, July 27, 2005, http://news.bbc.co.uk/2/hi/americas/4719169.stm). However, none of these alternatives has caught on. President Bush continues to use the phrases “the war on

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or convey the range of perils in the current moment, and therefore diminish her power to analyze them adequately and devise or contribute to strategies to respond to them. In contrast, in Part I, this Article adopts a radical universalist stance and argues that both contemporary human rights discourses and security discourses on terrorism and human rights must be broadened and renewed. In Part II, it explains how this renewal must be informed by the understanding that international human rights law protects the individual both from terror and from torture: in other words, both from terrorism and the excesses of counter-terrorism. As an example of this novel approach, Part III embarks on an analysis of the philosophical overlap between both terrorism and torture and their normative prohibitions. Next, the Article considers the definitional controversies that have plagued both debates about terrorism and about torture, and shaped the discourses critiqued herein. Part IV refutes the justifications of torture born out of the “war on terror,” and explains how maintaining an absolute approach to the ban on torture is essential to preserving absolute bans on terrorism. Subsequently, Part V critiques the human rights movement’s insufficient response to terrorism, suggesting that a better response is urgently needed, both as a matter of human rights principle and to strengthen work against abuses, like torture, that arise out of counter-terrorism. Finally, this Article considers the implications of two key questions that are often neglected: the gender dimension of terrorism, discussed in Part V.C; and the problems associated with addressing the particular challenge to human rights from terrorism that Muslim fundamentalist armed groups carry out, described in Part VI. By critiquing old discourses on security and human rights, and postulating terror” and “the global war on terror.” See, e.g., President Bush Visits National Defense University, Discusses Global War on Terror, Oct. 23, 2007, http://www.whitehouse.gov/news/ releases/2007/10/20071023-3.html. The 2006 National Strategy for Combating Terrorism also employs this term. The National Strategy for Combating Terrorism 1 (2006), available at http://www.whitehouse.gov/nsc/nsct/2006/. In fact, all of these terms are highly contested, and criticized from diverse points of view on a wide range of grounds, including that this struggle should not be considered a “war”, that war cannot be declared on a phenomenon or tactic (terror), that it is misapplied to provide justifications for unrelated actions, such as the 2003 invasion of Iraq, and that it is unlimited in scope or duration. See, e.g., U.S. Officials Retool Slogan for Terror War, supra (detailing the objections of Gen. Richard B. Myers to the term); Mike Allen, Edwards Rejects the “War on Terror”, Time, May 2, 2007, available at http://www. time.com/time/nation/article/0,8599,1616724,00.html (referencing the “hostility” of “many Democrats” to the term “War on Terror,” and the “skepticism” of “some Republicans” about it also); Joan Fitzpatrick, Speaking Law to Power: The War Against Terrorism and Human Rights, 14 Eur. J. Int’l L. 241, 248 (2003) (critiquing the “war against terrorism” as unprecedentedly openended). Hence, though the term “war on terror” will be employed in this Article, it will be used only in quotation marks. This emphasizes the ongoing debates and critiques of the notion, and is an attempt to distinguish such a construct from the broader, international (and often popular) struggle against terrorism. In contrast, below I discuss why it is, however, inappropriate in most contexts to employ quotation marks around the word “terrorism.” See discussion infra notes 118–130 and accompanying text. TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008

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new ones around the paradigm of terror/torture, this Article ultimately begins the project of creating a human rights approach to terrorism. II. DOUBLE BURDENS, SINGULAR ANALYSES: TOWARD A MORE BALANCED APPROACH TO INTERNATIONAL LAW AND TERROR/TORTURE Dutch sociologist W.H. Nagel wrote in 1980 that “[t]he profile of terrorism is circular. Terrorism creates counterterrorism and counterterrorism is pregnant with future terrorists.”23 Some would suggest that it is rather state violence that gives birth to terrorism in the first place (at least sometimes).24 Nevertheless, this unresolved chicken-and-egg debate does not undermine Nagel’s basic thesis about circularity. Circularity is a crucial refrain in this article: circles of threats, circles of decency, circles of causality, and the comprehensive legal obligations needed to address them.25 However, much of the legal analysis has instead been flat, failing to reflect this dimension. Such linear analysis cannot adequately respond to round conundrums or to complexity. This Article attempts to think through a range of what are usually seen as dichotomies, but are often in fact points on the circumference of the same circle: terror/torture, terror/counter-terror, security/human rights, state action/non-state action.26 Frequently, assumptions are made that practices can only fit on one side or another of these dividing lines, and that they should be legally categorized and strategically prioritized differently based on this placement. Such a narrow understanding is unhelpful. Menaced by both the Scylla of terror and the Charybdis of counter-terror, by terror and torture, by the actions of armed groups and states, you cannot navigate today’s troubled international seas without recognizing and contending with both.27 Security should be understood not in

23

W.H. Nagel, A Socio-legal View on the Suppression of Terrorists, 8 Int’l J. of the Soc. of L. 213, 221 (1980).

24

See, e.g., Chomsky, supra note 16.

25

See infra notes 28–34 and accompanying text.

26

We must be careful of easy assumptions. For example, states should be understood as capable of committing both terror and torture, as should non-state armed groups. On the “attenuate[d] . . . impact of the public/private distinction” in the general prohibition of torture, see, for example, James Crawford, Revising the Draft Articles on State Responsibility, 10 Eur. J. Int’l L. 435, 440 (1999).

27

Scylla and Charybdis were monsters placed, according to Greek mythology, on either side of the Strait of Messina. Scylla had twelve feet and six heads and lived underneath a dangerous rock. On the other hand, Charybdis sucked in all the water three times a day creating a devastating whirlpool. Sailors had to navigate carefully between these perils to avoid destruction. When the goddess Circe advised Odysseus to veer towards Scylla’s cliff so as to only lose a few men rather than losing his entire ship to Charybdis, Odysseus pleaded with her. He asked: “goddess . . . tell me truly – could I somehow escape this dire Charybdis and yet make a stand against the other [Scylla] when she sought to make my men her prey?” Homer, the Odyssey 145 (Walter Shewring trans., Oxford University Press 1980). Odysseus and his ship made it through the Strait of Messina by navigating according to Circe’s suggestion.

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opposition to human rights, but rather as a human rights value. Hence, sometimes counter-terror programs may be necessary to protect human rights. But conversely, enjoyment of human rights is a basic part of the notion of security, and must serve as a limit on counter-terrorist strategies. Such an understanding also makes sense when one considers the very difficult double burden that human rights law puts on states, and how that burden is affected by the phenomenon called terrorism. The International Covenant on Civil and Political Rights (ICCPR), in its second article, calls on states to both “respect and ensure” the rights in the Covenant.28 This means states have to take affirmative acts to protect the rights of those within their jurisdiction from impingement by others.29 But, in so doing, the state must not violate rights itself. In the face of terrorism, the double burden of respecting and ensuring rights requires states to take active steps to safeguard their populations from violent attack by non-state armed groups as, inter alia, a matter of human rights law. However, in so doing, the state must not itself contravene the rights guaranteed in the ICCPR. In our time of terror, security experts usually emphasize the aspect of ensuring rights (though not often using such language) while human rights advocates largely focus on respecting rights (though they usually at least acknowledge, en passant, that governments must protect their populations). The trick, which neither side in the debate has adequately referenced, is that states have to do both–respect rights and ensure rights–and at the same time. Human rights discourse often minimizes discussion of ensuring rights to protection from terrorist violence by the enforcement of international law, and is instead largely or solely a critique of state policies in response.30 This discourse is firmly entrenched on the “respect” side of the coin. While such a critique is essential today–in a world in which torture31 and other human rights abuses have become However, when Scylla consequently tortured and murdered some of his men, Odysseus grieved terribly: “Scylla swung my writhing companions up to the rocks, and there at the entrance began devouring them as they shrieked and held out their hands to me in their extreme agony. Many pitiful things have met my eyes in my . . . searchings through the seapaths, but this was the most pitiful.” Id. at 148. The modern challenge is to find a better route, to confront both Scylla and Charybdis, or perhaps to remove the monsters themselves. 28

The relevant language from Article 2(1) sets out that: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant . . . .” International Covenant on Civil and Political Rights, art. 2(1), Dec. 16, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 [hereinafter ICCPR]. Those rights covered in the ICCPR include the rights to be free from arbitrary deprivations of life (Article 6), and from torture and ill-treatment (Article 7), and the rights to liberty and security of person (Article 9). Id.

29

Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary 38 (1993).

30

On this point, see infra notes 189–217 and accompanying text.

31

See, for example, the recent New York Times exposé of secret Justice Department memos authorizing the torture and cruel, inhuman or degrading treatment of terror suspects.

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part of counter-terrorism policy and the judiciary is failing to offer remedies32– it also offers an insufficient response to the current moment. A complicated balancing33 process between respecting and ensuring rights is necessary to chart a course through the maze of complex contemporary reality reflected by El Manara’s Byzantine plot. The human rights movement will be unable to engage convincingly in the raging debates about balancing if it is only (or is only seen to be, or is primarily seen to be) engaged with one side of this double responsibility. Neither side of the equation–neither the responsibility to respect nor to ensure rights– may be left out. At the same time, any balancing process should be accompanied by the understanding that some values and rights are so fundamental as to be unbalanceable.34

Scott Shane, David Johnston and James Risen, Secret U.S. Endorsement of Severe Interrogations, N.Y. Times, Oct. 4, 2007, available at www.nytimes.com/2007/10/04/ washington/04interrogate.htmoi?_r=1&hp=&adxnnl=. 32

See, for example, the Supreme Court’s recent unwillingness to hear the appeal of Khaled alMasri, a Lebanese-born German citizen who accuses the CIA of kidnapping and torturing him, a refusal which commentators have noted can be understood as “an endorsement of the Bush Administration’s argument that state secrets would be revealed if the case were allowed to proceed.” US Court Rejects CIA Kidnap Case, BBC News, Oct. 9, 2007, available at http:// news.bbc.co.uk/2/hi/europe/7036051.stm. This decision terminates Mr. Masri’s lawsuit. Id.

33

Some challenge the appropriateness of the methodology of balancing altogether or appeal for great care in any such process. See, e.g., Speech by Lord Chancellor and Secretary of State for Constitutional Affiars, Lord Falconer of Thoroton, Royal United Services Institute, London, Feb. 14, 2007, available at http://www.dca.gov.uk/speeches/2007/sp070214.htm. I believe that we need to get away from the politics of polarization—where you are either tough or soft, with us or against us. The debate where liberty and security can be traded off against either as if balancing an equation. As I said, this is a complex problem that requires a more nuanced analysis . . . Liberty and security are not transferable. Diminution of one does not necessarily lead to the other. We must get away from the false dichotomy in which security and basic freedoms are seen as being in opposition. It is important that we recognize that national security does not automatically lead to the negation of our human rights . . . Neither tough nor soft, but right. Id.

And indeed, in view of the holistic approach advocated here, one must be careful of a zero-sum approach to security and human rights. Nevertheless, some opponents of the balancing methodology sometimes seek to avoid it by simply omitting one side of the equation altogether, a clearly mistaken approach. Moreover, as one of the dominant paradigms in today’s public discourse about security and human rights, the theme of balancing is difficult to avoid. As even then-U.N. Secretary General Kofi Annan has asserted, “particular attention needed to be given to balancing anti-terrorism measures and the observance of human rights standards.” As paraphrased in Leslie Palti, Combating Terrorism While Protecting Human Rights, U.N. Chronicle Online Edition, http://www.un.org/Pubs/chronicle/2004/issue4/0404p27.html. Even Lord Falconer concedes, “Withdrawing individual freedoms must be balanced against the practical purpose that will be served in so doing.” Speech by Lord Falconer, supra (emphasis added). 34

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This is the essence of nonderogability, as found, for example in Article 4(2) of the ICCPR. Under this provision, no suspension of the human rights to be free from arbitrary deprivation of life and to be free from torture and cruel, inhuman or degrading treatment or punishment, inter alia, is permitted, even “[i]n time of public emergency which threatens the life of the TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008

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Furthermore, the only protection from fulfilling Nagel’s prophecy that counterterrorism is pregnant with future terrorists may be respect for clearly established international legal norms and a radical commitment to universality. Yet recent governmental disregard for human rights standards and broader principles of international law in the battle against terrorism, along with the horror that modern terrorism itself represents, have undermined the delicate balancing process required to both respect and ensure rights. The same is true for the security discourses that have championed or justified these policies (or even inspired them).35 These factors have also conspired to destabilize the notion that some rights are unbalanceable. Ultimately, this may doom the “war on terror” to fulfilling Nagel’s prophesy, and hence to failure. A. To Respect and To Ensure The rethinking of human rights and security discourses that is necessary to avoid the pitfalls described above begins in the crucial language of Article 2 of the ICCPR.36 In his authoritative commentary on the ICCPR, Manfred Nowak has written that Article 2, which establishes the responsibility to both respect and ensure rights, provides the “systematic context”37 of all the Covenant’s substantive provisions. The “respect” side of its equation establishes what have been termed “duties of forbearance.”38 “It means that the State Parties must refrain from restricting the exercise of these rights where such is not expressly allowed.”39 This speaks

nation . . .” ICCPR, supra note 28, at art. 4(1) – (2). In other words, neither instrumental killings amounting to terrorism, nor torture, can ever be justified by the approach of “balancing.” For a critical discussion of the limits of balancing, see Susan Marks, Civil Liberties at the Margin: the UK Derogation and the European Court of Human Rights, 15 Oxford J. Legal Stud. 69 (1995). 35

For a discussion of all the U.S. government “torture memos,” which were certainly such security discourses, see A Guide to the Memos on Torture, NYTimes.Com, http://www.nytimes.com/ ref/international/24MEMO-GUIDE.html (last visited Nov. 15, 2007).

36

Of course, many economic, social and cultural rights are also heavily impacted by both terrorism and counter-terrorism. The basic obligation of States Parties to the International Covenant on Economic, Social and Cultural Rights is, according to the Committee on Economic, Social and Cultural Rights, “to respect, to protect and to fulfill” all of the rights in the Covenant. Committee on Economic, Social and Cultural Rights, General Comment No. 12, ¶ 15, U.N. Doc. E/C.12/1999/5 (1999). The obligation to protect includes the responsibility to ensure that the relevant rights of individuals are protected from non-state actors. Id.

37

Nowak, supra note 29, at 28.

38

Id. at 36.

39

Id. The commentary notes that the meaning of this obligation varies depending on the nature of the underlying substantive right in question. It is either entirely protected and subject to no limitation whatsoever (i.e. the obligation not to torture); subject to non-arbitrary limitations (i.e. the right to life or to privacy) or subject only to expressly stated, negotiated limitations (i.e. freedom of expression). Id. at 34.

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to what are termed negative rights or negative liberties in the language of U.S. constitutional law.40 On the other hand, the duty to ensure rights is a reminder of the oft-overlooked reality that guarantees of civil and political rights do require states to take affirmative steps.41 This responsibility applies to all of the substantive rights guaranteed by the ICCPR and requires the agents of the state to protect individuals from private abuses.42 Nowak labels this, “the requirement to take positive measures to protect against private interference.”43 In 2004, the Human Rights Committee, which monitors implementation of the ICCPR, explicitly spelled this out in its authoritative interpretation of Article 2: The legal obligation under article 2, paragraph 1, is both negative and positive in nature. . . . [T]he positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private

40

Sotirios Barber, The Negative-Liberties Model of the Constitution, in Sotirios Barber, Welfare and the Constitution 5–8 (2005).

41

As Nowak explains, “States Parties are obligated to take positive steps to give effect to the rights.” Nowak, supra note 29, at 36–7. Some provisions of international human rights law make the obligation for the state to act to protect individuals from harms by non-state actors explicit. For example, Article 5(b) of the International Convention on the Elimination of All Forms of Racial Discrimination requires states to “guarantee the right of everyone . . . [to] security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution.” International Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195; G.A. res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), at Art. 5(b); see also the general discussion in Andrew Clapham, Human Rights in the Private Sphere (1996), and Stephanie Farrior, State Responsibility for Human Rights Abuses by Non-State Actors, 92 Am. Soc’y of Int’l L. PROC. 299 (1998). This full approach to the obligations created by both civil and political rights and economic, social and cultural rights has been further supported by the case law of the European Court of Human Rights (Osman v. United Kingdom, App. No. 0023452/94, Eur. Ct. H.R., (1998)), and the Inter-American Court of Human Rights (Velásquez-Rodríguez Case, 1988 Inter-Am.Ct.H.R. (Ser. C) No. 4 ( July 29, 1988), available at http://www1.umn.edu/humanrts/iachr/b_11_12d.htm). Notwithstanding this jurisprudence, civil and political rights are often still described by commentators as functionally the equivalent of negative liberties requiring only that states refrain from violative conduct. See, e.g., Cass Sunstein, Against Positive Rights, 2 E. Eur. Const. Rev. 35 (1993); DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). In the much-criticized latter case, Justice Rehnquist suggested that “the Due Process Clauses [of the United States Constitution] generally confer no affirmative right to governmental aid, even where . . . necessary to secure life, liberty or property interests of which the government itself may not deprive the individual.” Id. at 196.

42

Nowak, supra note 29, at 37.

43

Id. at 38.

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persons or entities that would impair the enjoyment of Covenant rights . . . .44 Though the ICCPR text itself was drafted long before a sophisticated understanding of such human rights problems prevailed, this approach represents the only one capable of adequately responding not only to terrorism by non-state actors, but also to many violations of women’s human rights in the family and community, and to abuses by private actors like transnational corporations.45 This aspect of the Covenant makes clear that “rights are not protected only from violations by the State,”46 implicating a panoply of international actors.

While our reconsideration of security and human rights paradigms begins with appreciation of the specific nature of Article 2 of the Covenant, we must also transcend its parameters. Beyond the strict framework of the ICCPR, in the context of the explicitly global “war on terror,” this notion is projected across the international community by the idea of universality.47 Hence, in balancing respect for rights with ensuring rights, we must give consistent consideration to the concerns and safety of both the Palestinian refugee camp resident48 and the Israeli bus passenger,49

44

U.N. Human Rights Committee, General Comment No. 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant, ¶¶ 5, 8, U.N. Doc. CCPR/C/21/Rev. 1/Add. 13 (May 26, 2004).

45

With regard to women, see the important discussion in Hilary Charlesworth & Christine Chinkin, the Boundaries of International Law: A Feminist Analysis 218–243 (2000).

46

Nowak, supra note 29, at 38.

47

The touchstone instrument of the human rights framework, the Universal Declaration of Human Rights clearly grounds this assertion. It seeks to promote human rights “for all peoples and all nations . . .” i.e. across frontiers in a transnational sense. Universal Declaration of Human Rights, G.A. Res. 217A, pmbl., U.N. GAOR, 3d Sess., 1st plen. Mtg., U.N. Doc. A/810 (Dec. 12, 1948). Furthermore, it stipulates that “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration [which include both the right not to be arbitrarily deprived of one’s life, and to be free from torture and cruel, inhuman or degrading treatment or punishment] can be fully realized.” See UDHR, art. 28. For discussion of a transnational understanding of human rights, see Karima Bennoune, Toward a Human Rights Approach to Armed Conflict: Iraq 2003, 11 U.C. Davis J. Int’l L. & Pol. 171, 196–210 (2004), and Ruti Teitel, Humanity’s Law: Rule of Law for the New Global Politics, 35 Cornell Int’l L.J. 355 (2001–2002).

48

Palestinian civilians, especially those in refugee camps, have often been victims of Israeli policies claimed to be undertaken in the name of countering terrorism, including torture, arbitrary detention, deliberate and arbitrary killings, and prolonged use of curfews and checkpoints. All this has had a grave impact on their human rights. See, e.g., International Court of Justice, Advisory Opinion: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 I.C.J. 20, ¶¶ 79–85 ( July 9) and The Association of IsraeliPalestinian Physicians for Human Rights, Torture: Human Rights, Medical Ethics and the case of Israel (Neve Gordon & Ruchama Marton eds., 1995). These policies have been carried out in the name of protecting the victims of the terrorism as described in sources cited infra note 49.

49

Palestinian armed groups have regularly targeted civilian transportation in Israel for terrorist attack with devastating results. See Jessica Stern, Terror in the name of God, Why

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the New Yorker50 and the resident of Kabul,51 and those in cities whose tribulations are forgotten by the international community, like Algiers.52 Human dignity must be seen from all these vantage points, rather than from one alone. B. Protecting the Pretences of Civilization When the Angel of Death Sounds His Trumpet Bernard Shaw wrote that “when the angel of death sounds his trumpet the pretences of civilization are blown from men’s heads into the mud like hats in a gust of wind.”53 The tragedies that beset El Manara’s protagonists, and too many televised atrocities since and including the events of September 11, 2001, testify to the truth of his admonition. In the post-September 11 era, international human rights law can mitigate the potential damage to the “pretences of civilization” Shaw invoked, such as “constitutional guarantees of liberty and well-being,”54 only if human rights is understood not simply as a language to critique government counter-terror policies but also as a tool against terror itself. Otherwise, we will Religious Militants Kill 32–62 (2003); Israelis on Living with Bombers, BBC News Online, July 19, 2005, http://news.bbc.co.uk/2/hi/middle_east/4679373.stm. For recent attacks, see, for example, Tel Aviv Suicide Bomber Kills 9, BBC News Online, Apr. 17, 2006, http://news.bbc.co.uk/2/hi/middle_east/4915868.stm. Many of these attacks have been claimed to be carried out in response to steps taken as described in sources cited supra note 48. 50

New York City is a city “widely recognized as [a] prime terrorist target . . . .” Dan Eggen & Mary Beth Sheridan, Anti-Terror Funding Cut in D.C. and New York, Wash. Post, June 1, 2006 at A01. This concern has greatly increased since September 11, 2001. Ernest Sternberg, Always a Target (What Draws Terrorists to NY?), N.Y. Sun, Feb. 21, 2007, available at http:// www.freerepublic.com/focus/f-news/1788546/posts. Terrorist threats against the city are often justified in the name of what is done by Western forces in countries like Afghanistan, discussed infra note 51.

51

Residents of Kabul have fallen prey to unthinkable levels of terrorist violence by non-state armed groups over the last thirty years, currently again on the rise. See, e.g., Afghanistan: International Responsibility for a Human Rights Disaster, supra note 15; Ian MacWilliam, Upsurge in Afghan Suicide Attacks, BBC News Online, Feb. 27, 2007, http:// news.bbc.co.uk/2/hi/south_asia/6400257.stm. In addition, they have suffered from counterterrorist operations both by the United States and its allies, and by the Afghan government. See, e.g., Human Rights Watch, U.S.: Failure to Provide Justice for Afghan Victims, Feb. 16, 2007, available at http://hrw.org/english/docs/2007/02/15/usint15351.htm. The latter are sometimes justified in the name of protecting Americans in cities like New York, discussed supra note 50.

52

Such a global view serves as a retort to what Richard Falk has criticized as “the spatial focus” which “preoccupie[s] discussions of world order.” Richard Falk, Human Rights Horizons: The Pursuit of Justice in a Globalizing world 28 (2000). Re-conceptualizing human rights beyond this limited focus and in a truly transnational way is critical to an effective response to the jurisdictional and spatial games states have played during the “war on terror” in an effort to immunize their counter-terror practices from legal scrutiny. See, e.g., United Nations Commission on Human Rights, Working Group on Arbitrary Detention, Situation of Detainees at Guantánamo Bay, ¶ 11, U.N. Doc. E/CN.4/2006/120, 15 (Feb. 2006).

53

George Bernard Shaw, Heartbreak House, at xxv (1919).

54

Id. at xxiv.

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inevitably see more of the key principles that comprise the rule of law, as Shaw warned, “blown . . . into the mud.” In many countries where people are genuinely threatened by violence from nongovernmental armed groups, or have been convinced by their governments that they are, our “pretences of civilization” will not seem relevant and it will be difficult to sustain outrage when they are trampled in the dirt unless we are balanced. Among many other consequences, Michael Reisman reminds us that September 11 shattered “the emotional foundation on which [the] sense of security [of many in the Global North] rested.”55 Of course, this has also been true of the effect of other September 11ths in other places. Human rights discourse must be responsive to that reality. On the other hand, this emotional reality cannot be allowed to vitiate the rules of the game in the way that some security narratives suggest. Both would-be terrorists advancing a goal they see as vital, and some putative counter-terrorists who see themselves as defending states and innocents, often argue that there are no relevant rules, or in any case that such rules do not apply to them given their higher purpose, or do not apply in the instant situation, which is invariably “exceptional.”56 These actors are trapped in a symbiotic relationship that threatens the very fiber of the normative order. What the counter-terrorist must remember as she constructs her strategy is that the suspension of rules also deconstructs the concept of terrorism. If there are no absolutes, no inherently foul acts (like torture), if the ends really do justify the means, then it is just a question of who has better ends–and there will always be widely divergent views about that question across the international community. Instead, some acts must be absolutely forbidden, whatever their alleged goal. As the former U.N. High Commissioner for Human Rights Mary Robinson has noted, “the essence of human rights is that human life and dignity must not be compromised and that certain acts, whether carried out by State or non-State actors, are never justified no matter the ends.”57 This Article argues above all for a holistic, congruous approach. It asks how we can, in the era of the “war on terror,” move towards a thick analysis that embodies the ambit of responsibilities in human rights law, that responds to the range of challenges to human dignity, that confronts Scylla and Charybdis. A key strategy may be to consider the similarities between abuses that are ordinarily seen as being on opposite sides of the line between state and non-state abuses in our current context. The best candidates for this rethinking are the twin processes of terrorism 55

Michael Reisman, In Defense of World Public Order, 95 Am. J. Int’l L. 833, 833 (2001).

56

See the discussion and critique of the argument that the “war on terrorism” renders international law rules “inapplicable” in Philippe Sands, Lawless World 206 (2005).

57

U.N. High Commissioner for Human Rights, Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights, Human Rights: A Uniting Framework, ¶ 5, E/CN.4/2002/18 (Feb. 27, 2002).

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and torture. The concept of terror/torture provides a prism for seeing the limitations of current discourses and suggests possibilities for more comprehensive ones. III. TERROR/TORTURE: MEANINGS AND MODALITIES Terror/torture represents a spectrum of brutalizing practices often justified in the name of a greater good or higher purpose.58 Torture terrorizes, and terrorism often involves a kind of torturing.59 Both sets of practices can be said to provoke the “three expanding circles of effects” that Michael Reisman postulates for terrorism.60 What he terms the immediate effects are on the victims themselves who are maimed or murdered in the process.61 The intermediate effects serve to intimidate many others, especially those who share characteristics with the victims, a ripple magnified in the era of mass media.62 Finally, both terror and torture have “an aggregate effect of undermining inclusive public order,”63 to borrow Reisman’s formulation. (Recent events all too aptly demonstrate this point.64) 58

The justification for torture in the context of terrorism is very often the protection of society and of innocent life. Terrorists too often claim an important moral goal. See Louise Richardson, What Terrorists Want 41–44 (2006).

59

See, for example, the description of the suffering of Daniel Pearl during captivity in Complaint at 200, Mariane Pearl v. Ahmed Omar Saeed Sheikh et al., No. 6639 (S.D.N.Y. July 24, 2007); see also Jeff McMahan’s argument that “[p]erhaps the worst form of torture is terrorist torture, whose instrumental function is fulfilled when the mutilated bodies of the victims are strewn in public places as a means of intimidating others. Jeff McMahan, Torture, Morality, and Law, 37 Case W. Res. J. Int’l L. 241, 242 (2006).

60

W. Michael Reisman, International Legal Responses to Terrorism, 22 Hous. J. Int’l. L. 3, 6 (1999).

61

For example, consider both the harrowing descriptions of the wounded, the dead, and family members searching for lost loved ones after the February 2007 terrorist attack on a Pakistan bound Indian train, Santik Biswas, India Blast Victims’ Security Questions, BBC News Online, Feb. 19, 2007, http://news.bbc.co.uk/2/hi/south_asia/6376273.stm, and the graphic descriptions of victims of torture given by the United Nations Special Rapporteur on torture, in BBC News Online, Iraq Torture “Worse after Saddam,” Sept. 21, 2006, http://news.bbc.co.uk/2/hi/ middle_east/5368360.stm.

62

See, for example, the words of an Algerian woman journalist who said she was so distressed by the fundamentalist terrorist atrocities against women and journalists that she, “thought of buying poison so I can kill myself if taken by them alive, so all they get is a corpse. I am losing my hair from nerves.” Faith and Freedom, supra note 6, at 185. Similarly, torture can provoke such fear in society at large that dictators often rule through its use. For example, Saddam Hussein terrorized the Iraqi population into submission with, inter alia, grizzly and massive use of torture. Bill Neely, Inside Saddam’s Torture Chamber, BBC News Online, Apr. 9, 2003, http://news.bbc.co.uk/2/hi/middle_east/2930739.stm.

63

Reisman, supra note 60, at 6.

64

For interwoven examples, one can pick the atrocities which occurred on September 11, 2001, that led to calls for the rules of international law to be rewritten, and to a resurgence of Islamophobia in many parts of the Western world on the one hand; and the atrocities at Abu Ghraib, that led to particular anger at the United States in the Muslim world, a rise of Occidentalism and some acts of terrorism. Unfortunately, the cumulative result of all this

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The similarities between the practices of terror and torture are significant and defining. These include the visitation of severe pain on victims, the intentionality of doing so, and the tremendous fear deliberately provoked in victims, survivors and those around them. Terrorism and torture both share some characteristics with hate crimes.65 Both torture and terror involve the infliction of extreme suffering, often on a victim chosen on a basis which may include discriminatory motives, often with a message intended for a broad audience,66 and meant to impact the lives of many.67 On the other hand, instances of torture and particular acts of terrorism may differ in important ways. Terrorism most often occurs in public, while much torture is often a more hidden, secretive practice.68 Some terrorists crave great publicity for their claims of responsibility,69 while many torturers seek to conceal what they

highly televised suffering has, for the most part, not been a universalist backlash against all forms of inhumane treatment authored by anyone, but rather polarization and selective reaction. For further discussion of this problem, see Karima Bennoune, Making the World Safe for the Dallas Cowboy Cheerleaders, Address Before the Michigan Journal of International Law Conference: “Dueling Fates: Should the International Legal Regime Accept a Collective or Individual Paradigm to Protect Women’s Rights ?” (Apr. 6, 2002), in 24 Mich. J. Int’l L. 461, 465 (2002). 65

As Andrew Taslitz has explained, “Hate criminals generally use their criminal conduct to express their contempt for, and perceived superiority over, various identifiable groups, based on, for example, their race, ethnicity, gender, religion, or sexual orientation. Andrew Taslitz, Hate Crimes, Free Speech, and the Contract of Mutual Indifference, 80 B.U.L. Rev. 1283, 1284 (2000). While the individual victim is the immediate target, the intended audience may be much broader, and the ripples of fear created may travel far. The analogy may seem easier to terrorism than to torture. However, as explained above, much torture, like much terrorism, has an intimate relationship to a variety of forms of discrimination. See discussion supra note 21. This is certainly true in the era of the “war on terror.” See, e.g., American-Arab Anti-Discrimination Committee (ADC), Fact Sheet: The Condition of Arab Americans Post 9/11 (Mar. 27, 2002), available at http://www.adc.org/index.php?id=282.

66

Those who favor the use of torture or ill-treatment in combating terrorism reveal this very truth about torture, when they suggest that Al Qaeda has a strategic advantage because its supporters believe that in U.S. hands they will not be tortured (an assumption it seems increasingly difficult to sustain). In other words, spreading fear among potential informants is, in this universe, a reason to torture. Heather MacDonald, Too Nice for Our Own Good, Wall St. J., Jan. 6, 2005, available at http://www.findarticles.com/p/articles/mi_kmopi/ is_200501/ai_n13294616.

67

Taslitz describes this aspect of hate crimes as “expressive violence.” Taslitz, supra note 65, at 1288.

68

See Steven Watt, Torture, “Stress and Duress,” and Rendition as Counter-Terrorism Tools, in America’s Disappeared 72, 95 (Rachel Meeropol ed., 2005)

69

This is exemplified by the practice of some suicide bombers who leave behind videotaped claims of responsibility. See, e.g., Paul Reynolds, Bomber Video ‘Points to al-Qaeda,’ BBC News online, Sept. 2, 2005, http://news.bbc.co.uk/2/hi/uk_news/4208250.stm.

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have done.70 Some torturers have direct and long-term contact with their victims while some terrorists may have none. One should, of course, be wary of generalizations with regard to these differences. Some terrorists may spend protracted periods of time with hostages, for example, or may even die along with their victims. And in the era of Abu Ghraib, certain acts of torture are clearly displayed for a wide audience, inadvertently or otherwise.71 Terrorists often target busy public places like restaurants and markets with explosives, usually hurting numerous individuals who are in those locales at that time and also causing vast property damage.72 In contrast, torturers more often directly target the body of a specific individual, or the bodies of small groups of victims.73 However, this difference may not always be so clear either. Consider the infamous National Stadium in Chile during the reign of Pinochet where many victims were simultaneously tortured and subjected to the horror of the torture of the hundreds around them.74 This distinction between torture and terror is also blurred by the fact that, some terrorists may indeed target particular individuals for assassination or abduction.75 Ultimately, the concrete results of what is called torture and what is called terrorism are often experienced as much the same: the devastation of the bodies and minds of those targeted by these practices; grave physical and psychological injury to many with profound and lasting sequelae for survivors, some of which may be invisible to the eye; and the spread of fear among many others of falling victim to the same fate.76 These consequences–and the shared characteristics described

70

See, e.g., U.S. Denies ‘Prison Torture’ Charges, BBC News online, Feb. 14, 2003, http://news. bbc.co.uk/2/hi/americas/2760301.stm.

71

See Diane Amann, Abu Ghraib, 153 U. Penn. L. Rev. 2085, 2085 (2005). Historically, when torture was legally sanctioned (and even mandated) it was sometimes openly performed, especially when prescribed as punishment. See Michel Foucault, Discipline And Punish: The Birth of the Prison 3–31 (1978).

72

See, e.g., ‘Passover Massacre’ at Israeli Hotel Kills 19, CNN.com, Mar. 27, 2002, http://archives. cnn.com/2002/WORLD/meast/03/27/mideast/.

73

Amnesty International, Israel And The Occupied Territories: Death By Shaking: The Case of ‘ABD Al-Samad Harizat, AI Index: MDE 15/23/95 (1995).

74

See Soldier Confirms Chile Stadium Killings, BBC News Online, June 27, 2000, http://news. bbc.co.uk/2/hi/americas/807599.stm; Katherine Hite, Chile’s National Stadium: As Monument, As Memorial, ReVista: Harvard Review of Latin America, Spring 2004, available at http://www. drclas.harvard.edu/revista/articles/view/704.

75

See, e.g., Pearl v. Sheikh, supra note 59.

76

On the direct impact of torture, see, for example, Eyad El-Sarraj, Torture and Mental Health: a Survey of the Experience of Palestinians in Israeli Prisons, in Torture: Human Rights, Medical Ethics and the Case of Israel, supra note 48 at 104–107. With regard to the human repercussions of terrorism, see, for example, the recitation of facts in Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 7–8 (D.D.C. 1998) (describing the death of 21 year-old Alisa Flatow in a suicide bombing of the bus on which she was traveling in Gaza) and Syed Shoaib Hasan,

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above–are why terrorism and torture matter, and why both practices are beyond the pale in international law. We turn now to definitional questions that have plagued the debates about both these practices, first regarding terrorism and then concerning torture. A. The Definitional Debates From a global perspective, both terrorism and torture must be understood as somewhat controversial phenomena. International public opinion reflects some division on the acceptability of these practices. For example, a global BBC poll found that “59 [percent] of the world’s citizens say ‘no’” to torture, while some 29 percent think that governments should be allowed to use torture in some cases.77 Meanwhile, attacks perceived by some as heinous terrorist acts seem acceptable to others for political reasons.78 Mirroring these divides in public opinion, controversy has also swirled around the definitions of these concepts. Yet, both terrorism and torture have been defined– and unequivocally prohibited–in international law. While questions remain about these definitions, they have served as the bases for a range of prohibitions and criminalizations. For those who position themselves primarily as opponents of terrorism, the meaning of the term is clear, or clear enough. The relevant discussion for this group revolves around how to end it. For those who focus on ending torture, its definition is similarly so established as to be above question. In contrast, those who are wary of either the concept of torture or of terrorism tend to underscore the definitional problems with the respective term, and sometimes thereby erect conceptual roadblocks to the operational process, intentionally or otherwise. 1. The Question of Legal Definitions of Terrorism Judge Rosalyn Higgins, current President of the International Court of Justice, suggested in her 1997 academic writings that “‘[t]errorism’ is a term without legal Struggling to Cope with Bomb Horror, BBC News Online, Oct. 19, 2007, http://news.bbc. co.uk/2/hi/south_asia/7053308.stm (describing the aftermath of the Oct. 18, 2007 suicide bombings in Karachi directed at supporters of Benazir Bhutto that killed more than 130 people). 77

This was out of a sample of 27,000 people in 25 countries. Jonathan Marcus, Heated Debate over Use of Torture, BBC News Online, Oct. 19, 2006, http://news.bbc.co.uk/2/hi/ europe/6063800.stm.

78

See Nabil Charaf Eddine, A force de louer la “résistance irakienne,” Elaph, reprinted in Courrier International, No. 767, July 13–20, 2005, at 32 (detailing the shock of Iraqis traveling abroad at the failure to universally condemn armed group terrorism against civilians in Iraq because of these groups’ opposition to the American occupation). Newsweek Magazine cites a Pew Research Survey result which claims that 26 percent of Muslims in the United States, aged 18 to 29, believe that suicide bombing can be justified in some circumstances. Lisa Miller, American Dreamers, Newsweek, July 30, 2007, at 31. Note that this cited result is controversial, and critiqued by some Arab-American community leaders. Id.

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significance.”79 Her words epitomize a view often articulated in the human rights literature today, despite the many developments in law and fact since the time of her writing.80 The human rights community sometimes deploys this argument as an excuse either for not using the word “terrorism,” or as an explanation for not campaigning more actively against the practice.81 The U.N. High Level Panel on Threats, Challenges and Change set out to put such a notion about the legal meaning of the term “terrorism” to rest in December 2004 by proposing a consensus definition.82 This definition labels as terrorism any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and Security Council resolution 1566 (2004), that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.83 Notably, the U.N. High Level Panel definition excludes state violence on the grounds that other instruments already cover such conduct.84 The report argues that “the legal and normative framework against State violations is far stronger than in the case of non-State actors. . . .”85 Additionally,

79

Rosalyn Higgins, The General International Law of Terrorism, in Terrorism and International Law 13, 28 (Rosalyn Higgins & Maurice Flory eds., 1997).

80

See, e.g., infra notes 107–110 and 119 and accompanying text.

81

See id.

82

See U.N. High Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, ¶ 164, U.N. Doc. No. A/59/565 (Dec. 2, 2004).

83

Id. ¶ 164(d). Other definitions include those found in the International Convention for the Suppression of the Financing of Terrorism: “Any . . . act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.” International Convention for the Suppression of the Financing of Terrorism, art. 2(B), Dec. 9, 1999, U.N. Doc. A/Res/54/109, 39 I.L.M. 270 (2000), available at http://untreaty.un.org/ENGLISH/Status/Chapter xviii/treaty11.asp. Interestingly, U.N. Security Council Resolution 1373, by which the international community collectively responded to September 11, 2001, and in which it adopted certain coercive measures under Chapter VII of the U.N. Charter to be undertaken by all nations to “combat [terrorism] by all means, in accordance with the Charter of the United Nations,” saw no need to define the concept. S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001). The United States Code defines terrorism as “activities that – (A) involve violent act or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; and (B) appear to be intended – (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping…” 18 U.S.C. § 2331, (as amended by the USA PATRIOT ACT of 2001, H.R. 3162, § 802).

84

High Level Panel, supra note 82, ¶¶ 159–61.

85

Id. ¶ 160.

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it rejects any possible justification for terrorism by non-state actors, specifically excluding military occupation as a legal excuse.86

While the omission of exemptions for “freedom fighters” is thoroughly laudable, the exclusion of state conduct from the scope of the definition raises concerns.87 It makes moral and legal sense to restate, as the U.N. High Level Panel definition does, that no casus belli, specifically including a military occupation, is a valid justification for violence targeted against civilians.88 In that respect the ban is absolute, and justifiably so. However, the panel assesses that sufficient norms already govern state conduct, and that separating out such violence normatively coheres.89 Juridically, this may be true. Nevertheless, in today’s political reality, the word “terrorism” carries a special stigma–just as the European Court of Human Rights once said of the term “torture.”90 Hence, there is a significant downside to the exclusion of state violence from this legal category. Part of the justification for this exclusion is that the Rome Statute of the International Criminal Court91 regulates state violence.92 Such an argument fails to convince, however, in a world where three of the five permanent members of the Security Council, and some ninety states overall, have not ratified that treaty.93 In any case, these outstanding questions do not mean that we have no international legal definition of terrorism, as conventional wisdom in some circles suggests.94 Even prior to the High Level Panel report, Antonio Cassese asserted that, “a definition of terrorism does exist” in international law.95 He emphasized that disagreement persists only with regard to the exceptions to that definition. In his view, [l]ogically, to say that because there is no consensus on the exception a general notion has not evolved would be a misconception. It is as if one were to say that, since in 86

Id. ¶ 160.

87

For arguments about the prevalence of state terrorism, see Western State Terrorism (Alexander George ed., 1991).

88

High Level Panel, supra note 82, ¶ 160.

89

Id. ¶ 159–161.

90

Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) at 41, ¶ 167 (1978).

91

Rome Statute of the International Criminal Court, opened for signature July 17, 1998, 2187 U.N.T.S. 90.

92

High Level Panel, supra note 82, ¶ 158.

93

Of the permanent members of the U.N. Security Council, the only states which have ratified the Rome Statute are France and the United Kingdom. China, Russia and the United States have all failed to do so. See The States Parties to the Rome Statute, http://www.icccpi. int/asp/ statesparties.html (last visited Oct. 29, 2007).

94

Higgins, supra note 79, at 27.

95

Antonio Cassese, Terrorism as an International Crime, in Enforcing International Law Norms Against Terrorism, supra note 13, at 213–14.

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international criminal law it is doubtful whether murder may exceptionally be justified by duress, as a result one could not define murder.96 To support his thesis, he points to the number of treaties and other legal texts that not only prohibit but in some cases criminalize terrorism.97 Current U.N. High Commissioner for Human Rights, Louise Arbour, came to a similar conclusion when she stressed that “many of the elements of the crime of terrorism are already established.”98 Inter alia, she points to the decision of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v. Galic, the first international criminal tribunal conviction for the crime of terror.99 Significantly, the ICTY specifically “rejected claims that convicting a person on the basis of this crime violated the principle of nullum crimen sine lege.”100

Still, other scholars continue to raise the definitional problems as an ongoing threat to the appropriate enforcement of international law. Andrew Clapham, for example, underscores the concern in the human rights field with “overly flexible definitions of ‘terrorism’ and ‘terrorist groups’ . . . adopted at the national level.”101 This, he fears, may lead to continued violation of the freedom of expression of opposition figures around the world.102 Indeed, enough of an international consensus exists on the core of a definition of terrorism for enforcement efforts to proceed.103 However, the perceived lack of

96

Id. at 214–15.

97

These include the Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; the Protocol Additional to the Geneva Conventions of August 12, 1949, The Protection of Victims of Non-International Armed Conflicts, 1125 U.N.T.S. 609, 16 I.L.M. 1442, June 8, 1977 (Protocol II) Article 4(2)(d); the Statute of the International Criminal Tribunal for Rwanda, Article 4, U.N. Doc. S/ RES/955 (1994) (Annex), 33 I.L.M. 1598; and the International Convention for the Suppression of the Financing of Terrorism, supra note 83, at Article 2. He also cites the conclusion of the Supreme Court of Canada that the latter definition is “workable” and “fair.” Cassese, supra note 95, at 216.

98

Louise Arbour, U.N. High Commissioner for Human Rights, Keynote Address: Security Under the Rule of Law (Aug. 27, 2004), at 3, available at www.hchr.org.co/publico/ comunicados/2004/cp0431.pdf.

99

Prosecutor v. Galic, International Criminal Tribunal for the Former Yugoslavia, Case No. IT-98-29-T (Dec. 5, 2003).

100

Arbour, supra note 98, at 3. This maxim translates as, “There can be no crime committed without a violation of the penal law as it existed at the time.”

101

Andrew Clapham, Terrorism, National Measures and International Supervision, in Enforcing International Law Norms against Terrorism, supra note 13, at 296.

102

Id.

103

Note in particular the pragmatic reductionist approach to the regulation of terrorism wherein some international instruments “target manifestations of the practice rather than treat it as a generic whole,” as described in Richard Garnett and Paul Clarke, Cyberterrorism: A New Challenge for International Law, in Enforcing International Law Norms against Terrorism, supra note 13, at 465–66.

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consensus, based largely on the General Assembly’s failure to adopt a final definition for the draft Comprehensive Convention on International Terrorism (Comprehensive Convention), discussed below, remains profoundly destabilizing to the global discussion of terrorism. It is no doubt for largely political reasons, rather than for filling an actual substantive gap, that the U.N. High Level Panel report urged the adoption of the Comprehensive Convention definition.104 As the High Level Panel itself noted, “[l]egally, virtually all forms of terrorism are prohibited by one of 12 international counter-terrorism conventions, international customary law, the Geneva Conventions or the Rome Statutes [sic].”105 Nevertheless, this perception of outstanding definitional lacunae leads to nervousness about even using the word “terrorism,” with the definitional challenges in question sometimes exaggerated. Hence, Amnesty International’s (AI) boilerplate explanation of why it used to avoid using the term “terrorism” overstated the outstanding problems with the definition of the term, and understated the degree of legal agreement about elements of that definition.106 For example, in a 2002 report on attacks on Israeli civilians by Palestinian armed groups, AI noted that it does not use the term [terrorism] because it does not have an internationally agreed definition and in practice is used to describe quite different forms of conduct. States and commentators describe acts or political motivations that they oppose as “terrorist”, while rejecting the use of the term when it relates to activities or causes they support. This is commonly put as ‘one person’s terrorist is another person’s freedom fighter’. . . . Recent attempts at the United Nations to finalize a comprehensive international convention on ‘terrorism’ stalled in part because of disagreements between governments about the definition.107 Obviously, there are potential hazards involved in utilizing the word in the context of the Israeli-Palestinian conflict, where the term is highly charged.108 Still, this quoted language, variations of which AI has reiterated, overstates the extent of the definitional problem, as human rights

104

High Level Panel, supra note 82, ¶ 163.

105

Id. ¶ 159.

106

This argument makes even less sense when one recalls that a number of contentious terms in international human rights law have not yet been conclusively defined either. A case in point is the term “minority,” which is nevertheless a category subject to the protection of human rights law, and which benefits from human rights advocacy. See, e.g., Mary Ellen Tsekos, Minority Rights: The Failure to Protect the Roma, 9 No. 3 Human Rights Brief 26 (2002), available at http://www.wcl.american.edu/hrbrief/09/3roma.cfm.

107

Amnesty International, Without Distinction: Attacks on Civilians by Palestinian Armed Groups, AI Index: MED 02/003/2002, July 2002, at 7.

108

Note the analysis of the use of “terrorism” in this context in Chomsky, supra note 16 at 135–141. Most recently, Hamas has banned outdoor prayers in Gaza as a way of stifling protest by its Palestinian opponents based on the claim that, inter alia, such outdoor prayers “were used for the purpose of . . . practicing terrorism.” BBC News Online, Hamas bans Gaza outdoor prayers, Sept. 4, 2007, http://news.bbc.co.uk/2/hi/middle_east/6978540.stm.

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proponents sometimes do.109 It also fails to concede that there is substantial international consensus about labeling as terrorism most of the types of attacks on civilians by armed groups documented and condemned in the same report. In fact, there are international legal norms that require the prevention and punishment of such acts as terrorism or as terrorist acts.110

As the human rights movement pushes international law forward in areas where it perceives the need to protect human rights, it should be careful about ducking behind a shield of legality. If the law is insufficient, human rights advocates should be supporting standard setting. To announce a legal lacuna and then walk away from this problem is neither a responsible nor a persuasive approach. a. Current Developments: The Definition of Terrorism in the Comprehensive Convention The draft Comprehensive Convention is an effort to combine and expand the twelve existing U.N. counter-terrorism treaties and offer a “legally uniform regime for judicial cooperation and prosecution of terrorist activities.”111 Government negotiators have agreed upon much of the text. However, crucial outstanding issues remain. The major political fault line in the drafting has been between Western states on the one hand, and the Organization of the Islamic Conference (OIC) and the League of Arab States on the other. The former bloc of states has sought to exclude state conduct from the definition of terrorism, while the latter has sought to include state terrorism, and to find ways to exempt actions for self-determination from the category. However, in the wake of the 2005 London bombings, the head of the Arab League endorsed a separate text which affirmed that targeting civilians “cannot be justified by any cause or grievance.”112 Here he seemed to embrace an absolutist vision. Many states in the Arab League, such as Algeria, 109

See, e.g., Touro Law Center Institute for Human Rights, There is No UN Definition of Terrorism, http://www.eyeontheun.org/facts.asp?1=1&p=61 (last visited Nov. 15, 2007).

110

See, e.g., International Convention for the Suppression of Terrorist Bombings, art. 2, Dec. 15, 1977, U.N. Doc. A/RES/52/164, 37 I.L.M. 249; International Convention for the Suppression of the Financing of Terrorism, supra note 83.

111

Center for Transatlantic Relations, Shoulder to Shoulder: Views From Governments and Civil Society on Cooperative Security (Ctr. For Transatlantic Relations, D.C.), September 2003, at 1, available at http://transatlantic.saisjhu. edu/PDF/publications/ mewlsetterseptember_2003.pdf. The drafting process began in 1996; negotiations now proceed on the basis of a text introduced by India in 2001. For a critique of that draft, see Amnesty International, United Nations General Assembly, 56th Session 2001, Draft Comprehensive Convention On International Terrorism: A Threat To Human Rights Standards (2001), available at http://web.amnesty.org/802568F7005C4453/0/C2B 5C77098FC83D480256AEF0050ED19?Open. Critique of the subsequent draft is found in Letter from Amnesty International & Human Rights Watch, Comprehensive Convention Against International Terrorism ( Jan. 28, 2002), available at http://www.hrw.org/press/2002/01/ terror012802-ltr.htm.

112

Arab Chief Clears Terrorism Definition, Al-Jazeera, July 25, 2005, http://english.aljazeera.net/ English/Archive/Archive?ArchiveID=13727.

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now face non-state actor terrorism from the victims’ perspective, and this reframes the politics of the definitional debate.113 In February 2007, the General Assembly’s Ad Hoc Committee on Terrorism met to work further on the draft Convention.114 Delegates, including the representative of the OIC, “reaffirmed [their] determination to make every effort to resolve outstanding issues related to the legal definition of terrorism.”115 During this meeting, the Ad Hoc Committee recommended the establishment of a working group to finalize the draft Convention at the sixty-second session of the General Assembly beginning in September 2007.116 In any case, just because governments have not yet agreed upon the article defining terrorism in the draft Comprehensive Convention does not mean the specified conduct is not already prohibited by other international law, either conventional or customary. Even absent agreement on the Comprehensive Convention, the pre-existing definitions, found in other documents, prevail.117 b. “Terrorism”/Terrorism: Language, Law and Ambiguity As noted above, given the continuing suggestion that terrorism still lacks a definition in international law, some human rights advocates have been wary of even using the word. This is a mistake. After the London bombings, Palestinian intellectual Khaled Hroub published an article in the Arab press that called for “banishing all ambiguity” from how such acts are discussed, an appeal that is relevant here.118 Amnesty International has recently decided to stop using quotation marks around the word “terrorism,” which it had previously used to indicate that the exact meaning of the term remains contested.119 This practice was unintentionally 113

Reisman, supra note 60, at 22.

114

Press Release, General Assembly, Considering Sixth Committee Reports, Adopts Text on Criminal Accountability of U.N. Officials, Experts on Mission, U.N. Doc. GA/10544 (Dec. 4, 2006). They also discussed holding a high-level international conference on terrorism in Cairo. Id.

115

Press Release, U.N. Department of Public Information, Ad Hoc Committee Negotiating Comprehensive Anti-Terrorism Convention Opens Headquarters Session (Feb. 5, 2007), available at http://www.un.org/News/Press/docs/2007/L3112.doc.htm.

116

Report of the Ad Hoc Committee Established by General Assembly Resolution 51/210 of 17 December 1996, U.N. Doc. A/62/37, 2007, at 4.

117

See, for example, the definitions in many of the sources cited supra note 83.

118

Khaled Hroub, Appeler le crime par son nom, Al Hayat, reprinted in Courrier Int’l, July 13–20, 2005, at 6. William Schulz, former Executive Director of Amnesty International USA, writing in his personal capacity, called on the human rights movement to “have no hesitation using the word terrorism and roundly condemning it.” William Schulz, Tainted Legacy: 9/11 and the Ruin of Human Rights 182 (2003).

119

Previously, for example, in its report, Iraq: In Cold Blood: Abuses by Armed Groups, it only used the word “terrorism” when it indicated that it avoids the term because “there is no internationally agreed definition of what constitutes ‘terrorism’ and in practice the term is used

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reminiscent of a letter I received from Congressman Joe Knollenberg (R-MI), in response to my correspondence on torture concerns, in which he put the word “torture” in quotation marks every time it appeared. In that context, human rights activists would instantly recognize the denial such punctuation can seem to suggest, intentionally or otherwise. Hence, AI is to be commended for ceasing the use of its questioning punctuation marks,120 even while it rightfully continues to critique unwarranted uses of the term “terrorism” to repress people who may be non-violent dissidents.121 The U.N., including its human rights experts and mechanisms, uses the term “terrorism” (without quotation marks) regularly.122 Many other international human rights non-governmental organizations (NGOs) also use the word, though sparingly.123 A review of the websites of Human Rights Watch, Human Rights First, the International Commission of Jurists and the International Federation for Human Rights (FIDH) indicates that they all use the word, but only to a limited extent.124 Most human rights organizations seem to use the word to describe different forms of conduct.” Amnesty International, Iraq: Iin Cold Blood: Abuses by Armed Groups 5 ( July 25, 2005) (AI Index: MDE 14/009/2005). 120

Note that, as explained above, this article does use quotation marks around “war on terror” and related terms, due to the controversy about those terms and their parameters. Unlike “terrorism,” those terms are certainly not legal terms of art nor do they have international consensus definitions. See discussion supra note 22.

121

See Amnesty International, UK: Justice Perverted: Appeals Under the Antiterrorism, Crime and Security Act 2001 (Dec. 11, 2003) (AI Index: EUR 45/029/2003). Another problem is that the term “terrorism” is sometimes applied selectively so as not to apply to actions against one’s opponents. See, e.g., Posting of Marjorie Cohn, Fighting Terror Selectively: Washington and Posada, May 10, 2007, available at http://marjoriecohn. com/2007/05/fightingterror-selectively-washington.html.

122

In 2005, Kofi Annan launched a major U.N. strategy to combat terrorism. See Kofi Annan, Secretary-General’s Keynote Address to the Closing Plenary of the International Summit on Democracy, Terrorism and Security: A Global Strategy for Fighting Terrorism (Mar. 10, 2005), available at http://www.un.org/apps/sg/printsgstats.asp?nid=1345 [hereinafter Global Strategy for Fighting Terrorism]. Note also the litany of United Nations Conventions banning terrorism, and aspects of terrorism qua terrorism. See, e.g., International Convention for the Suppression of Terrorist Bombings, supra note 110. The U.N. High Level Panel devoted an entire section of its report to “[t]errorism,” arguing that it “attacks the values that lie at the heart of the Charter of the United Nations: respect for human rights; the rule of law; rules of war that protect civilians; tolerance among peoples and nations; and the peaceful resolution of conflict.” High Level Panel, supra note 82, ¶ 145.

123

See, e.g., International Crisis Group, Terrorism in Indonesia: Noordin’s Networks (2006), available at http://www.crisisgroup.org/home/index.cfm?l=1&id=4092; International Council on Human Rights Policy, Human Rights After September 11 (2002), available at http://www.ichrp.org/paper_files/118_p_01.pdf.

124

See, e.g., International Commission of Jurists, Eminent Jurists Panel on Terrorism, CounterTerrorism and Human Rights, Leading Jurists Begin Terrorism Inquiry in Moscow, Jan. 29, 2007, available at http://ejp.icj.org/hearing2.php3?id_article=104&lang=en, and Fédération internationale des ligues des Droits de l”Homme, Counter-Terrorism Measures and

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“terrorism” when speaking generally, but avoid labeling particular atrocities as such.125 In contrast, some prominent local and regional NGOs seem to be more comfortable using the word “terrorism”–and also seem to be stepping up their efforts to oppose it. For example, a 2005 statement by the Asian Centre for Human Rights (AHCR), entitled Jehadi Terror in Bangladesh, which responded to the 400 coordinated bombings across that country on August 17, 2005, makes frequent use of the words “terrorism” and “terrorist” without quotation marks.126 ACHR’s statement laments the failure of the Bangladesh government to confront both fundamentalism–an issue that it specifically references in the statement–and terrorism: “[H]igh profile cases of terrorism do not lead to prosecution, the perpetrators of the attacks on the NGOs, journalists and liberal thinkers have been roaming scot-free.”127 Additionally, many individual victims, as well as NGOs comprised of victims, identify themselves as “victims of terrorism.”128 Despite the remaining grey areas, the word “terrorism” is now part of both legal and public discourse, and cannot be avoided. Rosalyn Higgins’s deconstruction of the term is now surpassed by the Cassese approach that asserts the existence of an overarching definition, subject only to the remaining debates about exceptions. Given that approach, it is indeed still a legitimate endeavor to continue to raise concerns about the outstanding challenges to the fundamental definition,129 and, in particular, about the expanding scope of some municipal law definitions to encompass non-violent forms of dissent.130 The latter abuse of the term “terrorism”

Human Rights: Keys for Compatibility, http://www.fidh.org/article.php3?id_article= 2784 (last visited Nov. 15, 2007). When they do employ the term, however, it is used without quotation marks. 125

See, e.g., International Commission of Jurists, Human Rights Lawyers Condemn Bomb Attacks in London, July 7, 2005, www.icj.org/news.php3?id_article=3728&lang=en (condemning the London “bomb attacks” without labeling them as terrorism).

126

Asian Centre for Human Rights, Jehadi Terror in Bangladesh, Achr Review, Review 89/05, Sept. 7, 2005, available at http://www.achrweb.org/Review/2005/89-05.htm.

127

Id.

128

See, e.g., The Madrid Declaration, Adopted by the First World Congress of Terrorism Victims, Jan. 2004, available at http://www.coe.int/t/e/legal_affairs/legal_coopertion/ fight_against_ terrorism/3_codexter/working_documents/2004/CODEXTER%20_2004_%20Inf %2002%20E%20Madrid%20manifesto.pdf.

129

For example, the definition of “terrorist” is a profoundly more difficult question. Who is a terrorist? Someone found guilty of a terrorist offense in a court in accordance with internationally accepted fair trial norms? Someone purportedly planning such acts? Someone who belongs to an organization which has engaged in such acts in the past? Someone who advocates such behavior? For a discussion of related issues, see Silvia Borelli, The Treatment of Terrorist Suspects Captured Abroad: Human Rights and Humanitarian Law, in Enforcing International Law Norms Against Terrorism, supra note 13 at 39, 39–62.

130

See, e.g., Clapham, supra note 101, at 296.

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does great violence to the reality that extremist movements that target civilians do exist, and must be stopped. However, the response should not be to downplay the very real threat posed by such movements, but rather to reclaim the vigilant universalist high ground. 2. Defining Torture In a warped mirror image of sorts,131 security experts and apologists for harsh counter-terror strategies sometimes justify torture and cruel, inhuman or degrading treatment or punishment (CIDTP) by alleging that there are definitional problems with these terms. Such questioning rips the fabric of fundamental international law norms. Human Rights Watch argues that the absolute prohibition of torture and CIDTP is a cornerstone of international human rights standards, and “one of the most fundamental of all human rights.”132 Torture is undoubtedly the most rigorously codified of international human rights;133 it rises to the level of jus cogens; it is subject to universal jurisdiction.134 An entire human rights treaty regime under the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) seeks to achieve its total abolition.135 Furthermore, moving from rules to values, the prohibition of torture must be at the heart of any conception of human dignity. The Convention against Torture defines torture, in relevant part, as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.136 Although this

131

A note of caution: the definitional discourses of human rights advocates and security proponents critiqued here are also radically different. Human rights discourse does not condone terrorism, but often fails to pay adequate attention to it. However, some of the security discourses based on definitional challenges to torture and CIDTP actually justify violations of jus cogens norms.

132

Human Rights Watch, Torture and Other Cruel, Inhuman or Degrading Treatment, http:// www.hrw.org/about/projects/womrep/General-86.htm (last visited Nov. 17, 2007).

133

As Sands argues, “[t]his is one area in which the rules of international law are clear.” Sands, supra note 56, at 207.

134

U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, arts. 5–8, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85.

135

There are currently 145 States Parties to this treaty. See U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Ratifications or Reservations, http://www.ohchr.org/english/bodies/ratification/9.htm (last visited Oct. 29, 2007).

136

Convention against Torture, supra note 134, at art. 1(1).

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definition is the imperfect product of a difficult decision process, it is workable.137 There is more controversy about the definition of terrorism in international law than about the definition of torture, yet some policymakers and commentators quibble about the latter while declaring war on the former.

Interestingly, despite the recent congressional debate on the meaning of CIDTP,138 at the international level the U.S. government remains committed to agreed understandings. As it stated in its May 2005 report to the U.N. Committee against Torture, “The definition of torture accepted by the United States upon ratification of the Convention . . . remains unchanged.”139 With regard to CIDTP, a murkier area than torture, the Convention against Torture does not offer a definition.140 For guidance on its meaning, a footnote to the U.N. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment stipulates that CIDTP should be interpreted so as to extend the widest possible protection against abuses.141 The U.N. Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also explains that “Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.”142 CIDTP is then part of the same continuum of practices as torture. Both are illegal, but CIDTP is lower on the scale with regard to either the required severity of the pain and suffering inflicted, or the intentionality of its infliction. While this broad and open approach to understanding CIDTP poses some danger, both in terms of legitimate confusion about acceptable detention practices and bad

137

On the difficult drafting history, see J. Herman Burgers & Hans Danelius, the United Nations Convention Against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff 1988). On imperfections in the definition as diagnosed by human rights experts, see Ahcene Boulesbaa, Analysis and Proposals for the Rectification of the Ambiguities Inherent in Article 1 of the UN Convention on Torture, 5 Fla. J. Int’l. L. 293 (1990). For a contemporary overview of definitional questions, see Gail Miller, Defining Torture (2005).

138

See Alfred McCoy, The Bush Legacy of Legalized Torture, Feb. 8, 2006, http://www. tomdispatch.com/post/57336/tomdispatch_alfred_mccoy_on_how_not_to_ban_torture_ in_congress.

139

United States of America, Second Periodic Report to the U.N. Committee Against Torture [hereinafter CAT Report], ¶ 11, U.N. Doc. No. CAT/C/48/Add.3 ( June 29, 2005).

140

This too should make human rights advocates cautious when making arguments against using the word terrorism because of a claimed insufficiency in the definition.

141

U.N. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, G.A. Res. 173, U.N. GAOR, 43d Sess., 76th plen. mtg., U.N. Doc. A/ RES/43/173 (Dec. 9, 1988).

142

U.N. Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G. A. Res. 3452, at 91, art. 1(2), U.N. GAOR, 30th Sess., Supp. No. 34, U.N. Doc. A/10034 (Dec. 9, 1975).

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faith governmental evasion, it is hard to imagine an exact definition that provides the needed flexibility and is not even more amenable to manipulation. This was precisely the conclusion of the Working Group of the Commission on Human Rights that studied early draft texts of the Convention against Torture.143 The Human Rights Committee also rejected an enumerative approach.144 Such a list could never be completely inclusive. The human imagination for cruelty stuns us all.145 Interestingly, the recent U.S. report to the U.N. Committee against Torture does not critique the concept of CIDTP. Rather, the report restates the “commitment of the United States . . . to prevent and prosecute serious abuses, whether or not they fall within these definitions of torture or cruel, inhuman or degrading treatment or punishment.”146 Here, skepticism about an overly literal approach to rules may be appropriate. This critical stance should not override the rules, but rather shape our interpretive process, especially where the legal principles in question are difficult to apply. As Rosalyn Higgins has rightly suggested, where specific rules alone cannot answer every question, the lacuna should be filled by a decisional process that meets the goals of the normative system of international law.147 For this process to work, however, there must be some shared understanding of, and a real commitment to, these goals. If President Bush is actually as unclear about the meaning of “outrages upon human dignity,” as he claimed to be in the controversy over Common Article 3 of the Geneva Convention, we face a major problem in realizing such a process with regard to torture and CIDTP.148 143

See Burgers & Danelius, supra note 137, at 70.

144

General Comment 20 (Article 7), U.N. GAOR, Hum. Rts. Comm., 44th Sess., ¶ 4, U.N. Doc. HRI\GEN\1\Rev.1 (1992).

145

Just to list some of the findings of the Taguba report detailing torture at Abu Ghraib illustrates this point. Methods of torture and ill-treatment that Major General Taguba reported included, “Breaking chemical lights and pouring the phosphoric liquid on detainees; pouring cold water on naked detainees; beating detainees with a broom handle and a chair; threatening male detainees with rape; . . . sodomizing a detainee with a chemical light and perhaps a broom stick, and using military working dogs to frighten and intimidate detainees with threats of attack, and in one instance actually biting a detainee.” Report of Major General Antonio M. Taguba as cited in Seymour Hersch, Torture at Abu Ghraib, New Yorker, May 10, 2004, available at wysiwyg://186/http://www.newyorker.com/printable/?fact/040510fa.

146

CAT Report, supra note 139, ¶ 18.

147

See Rosalyn Higgins, Problems And Process: International Law and how we use it 1–12 (1995).

148

President George W. Bush, Press Conference of the President (Sept. 15, 2006), available at http://www.whitehouse.gov/news/releases/2006/09/20060915-2.html. See also the “glossary of the unique Bush administration definitions” related to torture and CIDTP in David Luban, Torture, American-Style, Wash. Post, Nov. 27, 2005, at B01. Luban asks: What does humane mean? Not much, it seems. Amazingly, the Army’s Schmidt report declared that none of the tactics used in Guantanamo were ‘inhumane.’ Along similarly minimalist lines, Gonzales defined ‘humane treatment’ as requiring nothing more than providing

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Despite all these definitional debates, we can conclude from the brief overviews above that both terrorism and torture are defined sets of practices that are unequivocally prohibited and criminalized by a range of international treaties and principles of customary international law. This reality is also reflected in both national and international case law. Though more can be done to refine our understanding of the terms “terrorism” and “torture,” both concepts already have strong legal grounding. Philosophically, these terms are also symbiotic, as noted above. Consequently, as discussed below, the absolute prohibition of one can only be sustained in today’s world by the absolute approach to the other. IV. TORTURED LEGAL ARGUMENTS Notwithstanding this interrelationship between the norms against terrorism and those against torture, in the “war on terror” we have seen many methods deployed in the name of defeating terrorism that instead echo its rationale. As a result, terrorism has won a great victory in the last six years, because some of the world’s leading democracies have proved willing, in the face of terrorism, to undermine the rule of law in a manner that terrorists could never have achieved by themselves. Fearing more attacks against civilians in the post-September 11 era, states, including liberal democracies, have curtailed a range of human rights protections, both de jure and de facto.149 There are many examples of these assaults on human rights. Perhaps the worst from a normative perspective is the undermining of the peremptory norms banning torture and CIDTP.150 This questioning of legal norms is also reflected in practice. We know now that torture and CIDTP are widespread in the context of the “war on terror.”151 Deaths in custody in Bagram Air Base in Afghanistan and

food, clothing, shelter and medical care. In the Bush lexicon, therefore, sexual humiliation, acute sleep deprivation and threats to have a detainee’s mother kidnapped and imprisoned are humane.

Id. Attorney General Michael Mukasey’s “refusal to declare waterboarding to be torture” during his confirmation hearings fits into the same category. See Mukasey Stays Vague on Waterboarding, CNN.Com, Oct. 30, 2007, http://www.cnn.com/2007/POLITICS/10/30/senate. mukasey/index.html. 149

See, e.g., Amnesty International, USA: Five Years on ‘the Dark Side’: A Look Back at ‘War on Terror’ Detentions, AI Index: AMR 51/195/2006, Dec. 13, 2006, available at http://web. amnesty.org/library/Index/ENGAMR511952006?open&of=ENG-USA.

150

For a thorough overview of these norms, see Mary Ellen O’Connell, Affirming the Ban on Harsh Interrogation, 66 Ohio St. L.J. 1231 (2005).

151

See, e.g., Detainee Abuse and Accountability Project, By the Numbers: Findings of the Detainee Abuse and Accountability Project, (Apr. 26, 2006) (Human Rights Watch Index No. G11802), available at http://hrw.org/reports/2006/ct0406/ct0406web.pdf; the Online Archive of Documents on Prisoners of the War on Terror Posted by the University of Minnesota’s Center for Bioethics and Human Rights Center, www1.umn.edu/humanrts/OathBetrayed/index. html (last visited Nov. 17, 2007).

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an alarming suicide attempt rate in Guantanamo Bay confirm that such detention practices are taking their toll.152 A. Post-September 11 Justifications of Torture Some legal academics have contributed to the environment that facilitates such abuses by assaulting the absolute position against torture, often while claiming to oppose the practice in general. Famously, Harvard Law Professor Alan Dershowitz has hypothetically suggested the use of dental drills on unanaesthetized teeth à la the Nazi dentist of The Marathon Man in the interrogation of certain terrorist suspects.153 Rather than being denounced, he appears everywhere, and Nobel Prize winner Elie Wiesel has even lauded his book.154 Dershowitz has gone so far as to call for judicial torture warrants that would legalize the use of some torture in what he sees as extreme cases.155 Though the Harvard Professor is most famous for this, Oren Gross of the University of Minnesota Law School has expressed a similar view. In his oral presentation at the American Society of International Law (ASIL) 2005 Annual Meeting, he urged his audience to confess that if their children were kidnapped, they would want the abductors tortured to elicit information that could locate them.156 I thought about Gross’s argument when I saw the film El Manara several months later in Algiers. The impulse he ascribed to his audience was exactly that which led Fawzi to apply a blow torch to Ramdane in the movie, to disastrous effect.157 How dangerous it is to suggest that the extreme human emotions provoked by unbearable risks to our own families become official policy. Much like the attempt to force Michael Dukakis in his 1988 debate with George H.W. Bush to endorse

152

See, e.g., Amnesty International, Terror and Counter-Terror: Defending Our Human Rights (Aug. 26, 2006) (AI Index No. ACT 40/009/2006), available at http://web.amnesty.org/ library/Index/ENGACT400092006?open&of=ENG-313; Amnesty International, Worldwide Appeal, Afghanistan: Detained at Bagram (Nov. 2004), available at http://web.amnesty. org/appeals/index/afg-010704-wwa-eng; International League for Human Rights, Human Rights Groups Write to Bush on Abuse of Iraqi Prisoners (May 7, 2004), available at http://64.233.169.104/search?q=cache:qaXhyRaX5NQJ:www.ilhr.org/ilhr/regional/centasia/ protests/ abu_graib.htm+human+rights+watch+suicide+bagram+air+base+detainees&hl=en& ct=clnk&cd=6&gl=us (alleging that “[n]umerous detainees have been killed or attempted suicide in custody in Afghanistan, Iraq and Guantanamo Bay prompting unprecedented expressions of concern by the International Committee of the Red Cross . . . ”).

153

Alan Dershowitz, Why Terrorism Works 144 (2002).

154

Id. at back cover.

155

Id. at 156–60.

156

Oren Gross, Remarks on Panel: Torture, Violence and the Global War on Terror, Washington, DC (Apr. 2, 2005) (notes of oral presentation on file with the author). The print version, which uses different language, is available in Oren Gross, Lecture Commentary by Oren Gross, 99 Am. Soc’y Int’l L. Proc. 407 (2005).

157

El Manara, supra note 1.

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the death penalty for his wife’s hypothetical rapist and murderer, Gross at the ASIL meeting exhorted his audience to show they cared (about their children) by embracing brutality–a frequent refrain in this debate.158 He insisted, as do many who make similar arguments, that we all really want exceptions to the ban on torture if we truly search our hearts.159 And thus the completely understandable reactions of individual family members were conflated with acceptable responses of the state, much like what happened so tragically in El Manara. Yet, paradoxically, Gross insisted that he was otherwise in complete agreement with Nigel Rodley, former U.N. Special Rapporteur on torture, with whom he shared the podium at the ASIL meeting.160 Alan Dershowitz too claims that he does not advocate torture, while suggesting scenarios in which sterile needles could be inserted under terror suspects’ fingernails during interrogation.161 In the pre-September 11 environment, such intellectual justifications of torture were largely recognized as outside the parameters of decency, ineluctably an affront to human dignity.162

158

Transcript of Second Bush-Dukakis Presidential Debate, Los Angeles, CA, (Oct. 13, 1988), available at http://www.presidency.ucsb.edu/showdebate.php?debateid=14. Journalist Bernard Shaw asked: “Governor, if Kitty Dukakis were raped and murdered, would you favor an irrevocable death penalty for the killer?” Id.

159

Gross, supra note 156; Lecture Commentary, supra note 156, at 408.

160

Unlike Dershowitz, Gross supports an absolute ban on torture in law. But in exceptional cases, he holds that the ticking time bomb scenario should provide a basis for the mitigation of punishment of official perpetrators of torture. Gross, supra note 156; Lecture Commentary, supra note 156, at 409. As Nigel Rodley indicated on the same panel, to codify such an approach provides an invitation to torture. Remarks on Panel, supra note 156. While Gross’s stance maintains the absolute ban in law—which is important—it renders this ban a fiction. See also Nigel Rodley, Torture, Violence and the Global War on Terror, 99 Am. Soc’y Int’l L. Proc. 402, 406 (2005).

161

See, e.g., Alan Dershowitz, Tortured Reasoning in Torture: A Collection 257, 266 (Sanford Levinson ed., 2004). To be fair to Dershowitz, he suggests that allowing for judicial warrants to engage in torture in exceptional situations will lead to less torture than currently used. Alan Dershowitz, Torture Without Visibility and Accountability is Worse Than With It, 6 U. Pa. J. Const. L. 326 (2003–2004). As he argues, “[i]f we are to have torture, it should be authorized by the law.” Alan Dershowitz, Is There a Torturous Road to Justice?, La Times, Nov. 8, 2001, at 19. However, this accepts torture as a moral and effective practice. It also sidesteps the issue of the terrible harm to victims. He briefly notes the use of torture by France in Algeria during the 1954–62 war, quoting a French general who said, “The best way to make a terrorist talk when he refused to say what he knew was to torture him.” Alan Dershowitz, The Torture Warrant: A Response to Professor Strauss, 48 N.Y.L. Sch. L. Rev. 275, 293 (2003–2004). However, Professor Dershowitz omits discussion of the terrible suffering of Algerians who were systematically tortured by the French Army. For the story of one such young Algerian woman, see Simone De Beauvoir, Djamila Boupacha (1962). On the utility of using torture, Dershowitz overlooks the fact that the moral outrage over the practice hurt France domestically and internationally, and ultimately, the Algerian FLN won the war.

162

See, e.g., Schulz, supra note 118, at 157; José Alvarez, Torturing the Law, 37 Case W. Res. J. Int’l L. 175 n.1 (2006), and Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 Colum. L. Rev. 1681, 1684–87 (2005).

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However, among its many terrible legacies, September 11 has shifted those parameters. Media commentators from left and right demonstrate this sad reality. For example, in November 2001, the liberal columnist Jonathan Alter wrote a much-discussed piece for Newsweek entitled Time to Think About Torture. In this article, he suggested we should not be too squeamish about interrogation practices (though he protested that he was not actually condoning torture) and he actually advocated the consideration of what have become known as “extraordinary renditions.”163 In 2005, after the Abu Ghraib scandal had broken, after serious allegations of U.S. human rights abuses surfaced in the Washington Post164 and elsewhere, the Wall Street Journal published a commentary on U.S. detention practices in the “war on terror,” by conservative author Heather MacDonald, called Too Nice for Our Own Good. In it, she railed: Our terrorist enemies have declared themselves enemies of the civilized order. In fighting them, we must hold ourselves to our own high moral standards–without succumbing to the utopian illusion that we can prevail while immaculately observing every precept of the Sermon on the Mount.165

Here, in the name of exigency, we see undermined the basic notion that human dignity is not only technically non-derogable, but also an essential value, a timeless and central goal and as such non-negotiable. This notion is all too à propos when Congress passed legislation in 2006 that may or may not have legalized certain acts of torture and CIDTP,166 but at the very least has clearly excised the judicial safeguards that might prevent these practices.167 163

Jonathan Alter, Time to Think About Torture, Newsweek, Nov. 5, 2001, at 45. On renditions, he wrote, “[W]e’ll have to think about transferring some suspects to our less squeamish allies, even if that’s hypocritical.” Id.

164

See, e.g., Dana Priest & Barton Gellman, U.S. Decries Abuse But Defends Interrogations; ‘Stress and Duress’ Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities, Wash. Post, Dec. 26, 2002, at A1.

165

MacDonald, supra note 66. In a similar vein, see David Rivkin, Jr. and Lee A. Casey, Getting Serious About ‘Torture’, Oct. 22, 2007, Wall Street J., at A19. Even more extreme, see the argument in Charles Krauthammer, The Truth About Torture, Wkly. Standard, Dec. 5, 2005, available at http://www.weeklystandard.com/Content/Public/Articles/000/000/006/ 400rhqav.asp.

166

See McCoy, supra note 138.

167

See The U.S. Senate Has Passed Controversial Legislation Endorsing President George W. Bush’s Proposals to Interrogate and Prosecute Foreign Terror Suspects, BBC News Online, Sept. 29, 2006, http://news.bbc.co.uk/2/hi/americas/5390848.stm. This concern is magnified by the recent opinion of the United States Court of Appeals for the District of Columbia which upheld the provision of the Military Commissions Act of 2006 that strips the rights of all Guantanamo detainees to have their habeas corpus petitions heard in U.S. federal courts. See Boumediene v. Bush, No. 05-5062, 2007 U.S. App. LEXIS 3682 (D.C. Cir. 2007). The Supreme Court heard oral argument in the appeal of Boumediene v. Bush, consolidated with another case, on Dec. 5, 2007. See Center for Constitutional Rights, Press Release: Guantánamo Attorneys to

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In such a universe, only an absolute rejection of torture constitutes any opposition to the practice at all. Just as there is no room in a definition of terrorism for a “freedom fighters” exception, there is no room for exceptions in the definition of torture, even–and perhaps especially–in fighting terror. For the most part, in most situations, it is precisely in the allegedly “exceptional” moments (albeit sometimes writ large) that torture is used: on political opponents who pose “unique” threats to order, on particularly evil criminals who are concealing especially vital information, on the much discussed suspect with information about ticking bombs. (This last is a hypothetical I have never understood because, except on television, we will never know for sure whether we are in such a situation until after the fact, and in any case, nowadays most bombs do not tick.168) The ticking bomb hypothetical is a deeply flawed device used to shift the moral high ground away from those who oppose torture.169 This rhetorical tool is persuasive to many despite the fact that torture is understood by a plethora of experts– including those who authored a 1983 CIA interrogation manual170–to be ineffective at producing reliable information in such a situation.171 It is also incredibly dangerous to assume one is actually in the hypothetical situation in the real world of torture.172 The many mistakes, especially those on the basis of discrimination, Justices: Restore the Constitution, Dec. 5, 2007, available at http://ccrjustice.org/newsroom/ press-releases/guant%C3%A1namo-attorneysjustices%3A-restore-constitution. 168

Bob Cochrane, co-creator of the popular television show “24,” admits, “Most terrorism experts will tell you that the ‘ticking time bomb’ situation never occurs in real life . . . But on our show it happens every week.” Jane Mayer, Whatever It Takes, New Yorker, Feb. 19, 2007, available at www.newyorker.com/printables/fact/070219fa_fact_mayer. This dramatic representation has become dangerous in the real world, as according to top U.S. military officials, DVDs of “24” circulate among American soldiers in Iraq, some of whom have emulated the frequent and gruesome torture on the show on real detainees. Id. As a result, top military officials recently met with the producers of “24” to implore them to change their plot lines, and for example “do a show where torture backfires.” Id.

169

See Henry Shue, Torture in Dreamland: Disposing of the Ticking Bomb, 37 Case W. Res. J. Int’l L. 231 (2006) (Symposium: “Torture and the War on Terror”).

170

According to excerpts of the “Human Resource Exploitation Training Manual,” reprinted in Harper’s Magazine, “Intense pain is quite likely to produce false confessions, fabricated to avoid additional punishment. This results in a time-consuming delay while an investigation is conducted and the admissions are proven untrue.” Psychological Torture, CIA-Style, Harper’s Mag., Apr. 1997, at 23–24.

171

U.S. Army Brigadier General Patrick Finnegan, the dean of the United States Military Academy at West Point, has argued that torturing in a “ticking time bomb case” is “particularly pointless,” as the suspect would be even less willing to talk. “They know if they can simply hold out several hours, all the more glory—the ticking time bomb will go off!” Mayer, supra note 168. Top FBI interrogator Joe Navarro has also asserted that “torture was not an effective response.” Id. (as paraphrased).

172

Even after a full trial, in numerous capital cases defendants have been found to be wrongfully convicted, frequently on discriminatory grounds. See, e.g., Michael Radelet, Hugo Adam Bedau & Constance Putnam, Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L.

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that have allegedly been made in pursuit of terror suspects in the last few years starkly underscore the incredible danger of giving in to this alleged exception.173 Moreover, it is the first push down a dangerous slippery slope of abhorrent human behavior. Quite simply, there is no way to cabin the practice. Torture spreads “like a cancer.”174 Finally, the ticking bomb hypothetical shifts the argument away from the key question of the morally repugnant nature of the violence called torture, to questions of effectiveness. Human rights advocates are then forced to respond to the discourse of effectiveness by arguing that torture is not productive. They grapple with whether or not to even engage in this debate. Such a line of argument can be persuasive with the public, but it is also a major concession because it obscures the peremptory nature of the international ban on torture and the moral reasons for the ban. In other words, if it could be proved to be effective, would we then have to accept it? B. Arguments for Torture, Arguments for Terror To allow for torture in exceptional situations is quite simply to allow torture.175 Hence, absolute opposition to it remains essential. As the Convention against Torture sets out in one of its most important articles, No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a

Rev. 21 (1987), and From Lynch Mobs to the Killing State: Race and the Death Penalty in America (Charles J. Ogletree, Jr. & Austin Sarat eds., 2006). 173

Consider the case of Maher Arar, a Canadian national of Syrian origin who was arrested on suspicion of Al Qaeda membership while traveling through the United States. He was subsequently sent to Syria where he was detained and tortured for more than a year. The Canadian government later concluded that Arar had no connection to terrorism. See Maher Arar: Timeline, Jan. 26, 2007, cbc.ca, http://www.cbc.ca/news/background/arar/. During an October 2007 House Foreign Affairs Committee hearing on Arar’s rendition, Secretary of State Condoleezza Rice admitted that the U.S. government mishandled his case. U.S. Handling of Arar Case “by no means perfect,” CBC News Online, Oct. 24, 2007, http://www.cbc.ca/world/story/2007/10/24/ rice-arar.html. See also Adam Liptiak & Leslie Eaton, Mistrial is Latest Terror Prosecution Misstep for U.S., N.Y. Times, Oct. 24, 2007, available at http://www.nytimes.com/2007/10/24/ washington/24justice.html?_r=1&ref=us&oref=slogin.

174

Oxford Professor Henry Shue has argued that though initially defended as an exceptional measure, torture spread through the French security apparatus during Algeria’s war of independence “like a cancer” until it became normal practice. See Alex Bellamy, No Pain, No Gain? Torture and Ethics in the War on Terror, 82 Int’l Aff. 122, 142 (2006).

175

Gross’s attempt to both rebut Dershowitz’s suggestion of using torture warrants by defending an absolute legal ban, and simultaneously suggest official action in contravention of that ban in extreme situations, while commendable for its extraordinary gymnastics, is not a solution either. Oren Gross, Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience, 88 Minn. L. Rev. 1481 (2003/04). His logic is akin to that of defenders of terrorism who argue that such violence is “tragic,” but necessary to save lives, or end murderous occupations. See infra note 188 and accompanying text.

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justification of torture.176 The choice of language here is deliberate. Without it, we have no real prohibition of torture. This is precisely the sort of norm whose literal language we need to protect in the current moment.

However, like many international lawyers,177 I subscribe to an ethical, humanist understanding of this prohibition, beyond literal language. My commitment to combating these practices is both a rules-based and a values-and goals-driven one. Still, it is not necessary for others to share my underlying reasoning to arrive at the same conclusion. There are additional, pragmatic reasons to champion the absolute ban on torture. Playing the counter-terrorism game outside the rules of international law often makes the situation worse as a practical matter.178 The most recent and worrying example of this is found in the view of U.S. intelligence agencies that the “war on terror” as fought in Iraq has increased the risk of terrorism.179 Respect for international norms could have helped to avoid or mitigate that outcome. Undoubtedly, the absolute position against torture is also integral to absolute positions against terrorism. The two halves of terror/torture are interdependent. Though they are set out in opposition to one another in the war against terrorism-era debate about torture, they are much the same at root. As noted above, both torture and terror are based on the identical philosophical assumption: the permissibility of instrumentalizing severe and deliberate human suffering. Similarly, the rejections of terrorism and of torture also share the same premise: that there is something apart about intentionally inflicting such suffering. There can be no room for justifications of either half of terror/torture; apologia for one provokes and sustains apologia for the other. Another shared aspect of the two practices is the unbridled coerciveness of both terror and torture.180 Both the High Level Panel definition of terrorism and the Convention against Torture definition of torture turn on notions of intimidation, compulsion, and coercion. As sociologist Lisa Hajjar has argued, the right not to be tortured “invests people, regardless of their social status, their political identity or

176

U.N. Convention against Torture, supra note 134, at art. 2(2).

177

See, e.g., David Luban, Essay: Liberalism, Torture and the Ticking Bomb, 91 Va. L. Rev. 1425 (2005), and Richard Bilder & Detlev Vagts, Speaking Law to Power: Lawyers and Torture, 98 Am. J. Int’l L. 689 (2004).

178

For an eloquent critique of the “war against terrorism” as a “war without rules,” see Fitzpatrick, supra note 22, at 248.

179

On the NIE leaks, see Paul Reynolds, Terror Report Clouds Bush Narrative, BBC News Online, Sept. 27, 2006, http://news.bbc.co.uk/2/hi/americas/5384548.stm.

180

Rhonda Copelon similarly focused on such commonalities when she made her influential argument that in certain circumstances gross patterns of domestic violence were like torture and should be categorized as such. Rhonda Copelon, Recognizing the Egregious in the Everyday: Domestic Violence as Torture, 25 Colum. Hum. Rts. L. Rev. 291, 337 (1993–1994).

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affiliations, with a kind of sovereign right over their bodies and minds. . . .”181 This right is implicated by one of McDougal’s explanations of his understanding of human dignity, that is that it “refers to a social process . . . in which private choice, rather than coercion, is emphasized as the predominant modality of power.”182 Such a social process then can leave no room whatsoever for terror or torture. To get around these absolutes, the distinction sometimes made is that the victims of terror are “innocent” whereas the victims of torture, we are assured by the proponents of its use in exceptional cases, are “guilty,” or at least possess guilty knowledge. Of course terrorists and their apologists often suggest that the “innocent” civilian victims are somehow culpable, whether because they voted for governments, or failed to overthrow them, or benefit from those governments’ policies which the terrorists claim to oppose, or perhaps they are guilty merely by identity.183 The latter is an unspoken assumption made by the justifiers of torture as well. In the current moment, when we talk about torture as a tool of counter-terror, we often assume we are discussing treatment to be meted out to brown-skinned foreign Muslim men, after all. Discrimination may then shape notions of “guilt” and indeed of acceptable conduct toward terror suspects. What is essential about both norms against torture and those against terrorism is that they reject these extra-legal categorizations of innocent versus guilty and deem instead that certain treatment cannot be meted out to any person, or at least in the case of some terrorism rules, to any civilian.184 They embrace the absolute and universal nature of human dignity. 181

Lisa Hajjar, Torture and the Future, Middle E. Rep., May 2004, http://www.merip.org/mero/ interventions/hajjar_interv.html.

182

Myres Mcdougal, Studies In World Public Order 16 (1960).

183

See, e.g., Posting of Ward Churchill, “Some People Push Back,” On the Justice of Roosting Chickens, http://www.kersplebedeb.com/mystuff/s11/churchill.html (last visited Nov. 15, 2007). In this infamous selection Churchill considers the attacks of September 11 in turn. As to those in the World Trade Center . . . . True enough, they were civilians of a sort. But innocent? Gimme a break . . . . They formed a technocratic corps at the very heart of America’s global financial empire . . . to which the military dimension of U.S. policy has always been enslaved—and they did so both willingly and knowingly . . . . If there was a better, more effective, or in fact any other way of visiting some penalty befitting their participation upon the little Eichmanns inhabiting the sterile sanctuary of the twin towers, I’d really be interested in hearing about it.

Id. Just as Dershowitz protests that he does not advocate torture, Churchill has said that he does not actually believe that the twin towers were a legitimate target. See DemocracyNow.org, The Justice of Roosting Chickens: Ward Churchill Speaks, http://www.democracynow.org/ article.pl?sid=05/02/18/157211 (last visited Nov. 16, 2007). Nevertheless, his rhetoric here is reminiscent of the rhetoric of terrorism. 184

The fact that terrorism definitions are often limited to attacks on civilians, suggests an approach which is not entirely absolutist. This underscores that armed conflict and the legal rules that govern it already represent a problematic acceptance of the infliction of some extreme

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Furthermore, these same distinctions of guilt and innocence, read as good motives versus bad, provide no license for any would-be perpetrators of either practice. Righteousness is no requirement for protection from torture or terror, nor is it a justification for performing either. Any arguments that break down these holistic constructs vis-à-vis torture give ammunition to those who seek to insert analogous distinctions in definitions of terrorism (such as the attempts to carve out “freedom fighter” exceptions in the Comprehensive Convention’s definition of terrorism). Whatever the values they seek to defend, the intellectual proponents of weakening the absolute ban on torture in order to confront terror fail to grasp that, as explained above, diluting the prohibition of torture inherently destabilizes the notion of terror and why it is wrong. In a transnational debate, we cannot convince the requisite broad constituency to oppose a practice selectively, on the mere basis of shared ideas about innocence or guilt of the victims; but rather only on the basis that, as profoundly simple as it sounds, human beings must not do certain things to other human beings, no matter what. I think back to the film El Manara. Ramdane, the young fundamentalist who raped his abducted friend Asma, had himself been tortured during a previous detention by the state. Fawzi, who had previously denounced state torture while a young activist, became a torturer himself when confronted with the horror of his wife’s captivity. Easy assumptions about guilt and innocence cannot help us out of this morass. Instead, in the context of the “war on terror,” it is imperative that we staunchly reject utilitarian justifications for deliberately inflicting severe suffering.185 Such a rejection is an essential part of defusing potential ticking time bomb situations in the first place. Furthermore, it is the only universalizable position, a truth that becomes starkly obvious when one recognizes the likeness and interconnection between terror and torture. The same arguments can be made by many terrorists and torturers to justify their violence: the argument that severe instrumental violence against an individual or a group of individuals, though perhaps regrettable, is necessary to save the lives, or protect the rights, of many more.186 As D.H. Munro

suffering for instrumental reasons. However, this broad topic goes far beyond the scope of this paper. For more discussion, see Bennoune, supra note 47. 185

Utilitarian justifications of torture have a long history. Jeremy Bentham wrote in the mid 1770s that there were “two Cases in which Torture may with propriety be applied,” both of which involve inducing the victim to take action in the public interest. See Bentham on Torture (W.L. Twining & P.E. Twining eds.), 24 N. Ireland Leg. Q. 305, 314 (1973). Stanley Cohen, co-founder of the Public Committee Against Torture in Israel argues that “The defence of necessity as a moral and legal justification for torture is, of course, as old as the phenomenon itself . . . torture always has to be justified in instrumental, utilitarian terms . . . .” Stanley Cohen, The Social Response to Torture in Israel, in Medical Ethics and the Case of Israel, supra note 48, at 20–22.

186

In both cases we may well question the factual basis for such assertions, but the claims made often echo one another. I am not arguing that terrorism is a direct result of human rights violations, like torture, as a general rule, though this may be a contributing factor in certain

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wrote in his critique of ethical egoism, “[O]ther people are likely to feel justified in treating us as we treat them, so that the actual consequence of adopting a particular policy is, as a rule, to be on the receiving end of it.”187 Ultimately, utilitarian rationalizations of torture in the name of fighting terror fail because they are not universalizable. The utilitarian argument here is not only morally repugnant, but it will justify the very practice that its proponents claim they seek to combat.188 More torture may produce more ticking bombs in the long run, just as more hypothetical ticking time bombs will produce more torture. V. THE OTHER END OF THE SPECTRUM: TERROR/TORTURE Turning to the other end of the spectrum, those international lawyers who position themselves primarily as opponents of torture and other state counter-terror abuses often fail to fully reflect on or engage with the exigencies of terrorism.189 Though different from those critiqued above in that they do not seek to justify terror, their understating of the impact of terrorism is also destabilizing. All too often, they overlook the fact that the actual struggle to end terrorism is itself a human rights struggle, even though leaders with terrible human rights records sometimes claim to champion this cause.

circumstances. See infra notes 270–274 and accompanying text. However, one justificatory discourse can easily bolster the terms of reference of the other, especially in the eyes of communities to which terrorists look for support and legitimacy. Osama bin Laden has tried to justify Al Qaeda crimes as follows: “Just as you violate our security, we violate yours. Whoever toys with the security of others, deluding himself that he will remain secure, is nothing but a foolish thief.” Osama Bin Laden, Speech Addressed to the American People (Oct. 29, 2004), in Al Qaeda Now: Understanding Today’s Terrorists 242 (Karen Greenberg ed., 2005). Cumulatively, these instrumental rationalizations of severe, deliberate suffering can shred what remains of the basic and universal notions of decency and fundamental considerations of humanity, ideas that are so necessary today. 187

D.H. Monro, Empiricism and Ethics 232 (1967). As Munro suggested, “[O]ne useful way to explore the implications of a policy is to ask ourselves whether we would be prepared to accept the role of any of the persons affected by such a policy.” Id. See also his discussion of universalizability, Id. at 147–207.

188

Bin Laden has used the following specific justification for Al Qaeda atrocities: As I was looking at those destroyed towers in Lebanon [by Israel and the United States during the 1982 Israeli invasion and its aftermath], I was struck by the idea of punishing the oppressor in the same manner and destroying towers in the U.S., to give it a taste of what we have tasted and to deter it from killing our children and women. Al Qaeda Now, supra note 186, at 242–43. While one can question indeed whether this is Bin Laden’s real motivation, it is a frequent refrain in his justificatory discourse. See also the assertion by Sidney Jones that “atrocities in Abu Ghraib and other U.S.–controlled detention centers, “ghost” prisons, and other horrors unquestionably helped the jihadist cause.” Sidney Jones, Asking the Right Questions to Fight Terror, Jakarta Post, Jan. 9, 2006, available at http://www.crisisgroup.org/home/index.cfm?id=3863.

189 232

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Some may argue that governments already pay sufficient attention to the problem of terrorism, and therefore the human rights movement and its intellectual compatriots need to utilize their limited resources to complement that picture by focusing exclusively on the “other” side of the problem. There is no question that this is a moment of extreme difficulty for the human rights movement.190 However, to fail to account fully for the human rights impact of terrorism itself means overlooking serious and widespread human suffering, appearing partial and, ultimately, being less effective. I recall the words of an Algerian woman journalist I interviewed in Algiers in 1994 during a terrible phase in that country’s armed conflict. She was faced with the government’s closure of her newspaper and also with constant threat of brutal murder at the hands of armed groups. Despairing over the lack of international solidarity in the face of armed group terrorism in Algeria, she said: I am no intellectual, but I believe other people were told elsewhere in other times that the evil and fear around them would pass. As far as I know, it did not pass. It got worse. I believe it will get worse unless someone hears us.191

The human rights community, as a matter of basic principles of human rights, must hear (and respond to) the voices of victims of terrorism, their survivors, and all those who live in fear of such violence–just as it hears and responds to the voices of victims of counter-terror, their survivors and all those who live in fear of that violence. Condolences and condemnations are not enough. As Kofi Annan, then U.N. Secretary-General, said of victims of terrorism: To all victims around the world, our words of sympathy can bring only hollow comfort. They know that no one who is not so directly affected can truly share their grief . . . . We must respect them. We must listen to them. We must do what we can to help them. We must resolve to do everything in our power to spare others from meeting their fate. Above all, we must not forget them.192

Furthermore, a human rights lens on the problem of terrorism can illuminate aspects not highlighted in governmental security discourses, such as the impact of terrorism on women, discussed below. A human rights analysis of terrorism centers the discussion on victims and human dignity, instead of only on national security. A. Terrorism as a Violation of Human Rights Terrorism should be understood as a human rights violation,193 something which might shock only the most old-school international human rights lawyers who

190

See supra notes 18 and 31–32 and accompanying text.

191

Bennoune, supra note 6, at 201 (citing Fatima B).

192

Annan, supra note 122.

193

For discussion of this point, see William G. O’Neill, Terrorism and Human Rights, in Human Rights, the United Nations and the Struggle Against Terrorism 1, 3 (International

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still defend the notion that only states can violate human rights. Terrorist attacks, depending on the nature of a particular incident, have the potential to decimate human dignity and to violate human rights across all categories: civil, cultural, economic, political and social rights, as well as individual and group rights, women’s rights, and children’s rights. Those rights most often affected include the rights to life and to security of person, the rights to be free from torture and ill-treatment and arbitrary detention, the right to humane treatment, the right to be free from discrimination, the rights to be free from violence against women and to free consent in marriage, the rights to freedoms of opinion and expression and assembly and conscience and religion and belief and movement, the rights to take part in public affairs and to vote, the right to health, the right to education, the right to work, the right to take part in cultural life, the right to protection of the family, the right to development, and the right to peace. Specifically, the U.N. General Assembly has recently agreed that “every person, regardless of nationality, race, sex, religion or any other distinction, has a right to protection from terrorism and terrorist acts.”194 That reality notwithstanding, some human rights lawyers do continue to insist that non-state actors are not legally capable of violating human rights,195 and thus terrorism by non-state actors cannot be considered to do so. However, a general trend toward understanding terrorism as a human rights violation is unmistakable in the resolutions of some U.N. and regional196 bodies, in international legal scholarship, Peace Academy 2003); see also William G. O’Neill, Appendix I: Conference Concept Paper, in Human Rights, the United Nations and the Struggle Against Terrorism, supra, 9, 10–12, available at http://www.ipacademy.org/pdfs/HUMAN_RIGHTS.pdf. 194

G.A. Res. 59/195, ¶ 13, U.N. Doc. A/RES/59/195 (Mar. 22, 2005). Note, however, that the vote on this resolution was 127 to 50, with 8 abstentions. See U.N. GAOR, 59th Sess., 74th plen. mtg. at 19, U.N. Doc. A/59/PV.74 (2004).

195

See Fédération Internationale des ligues des droits de l’Homme, in Report: International Fact-Finding Mission, Mexico, the North American Free Trade Agreement: Effects On Human Rights 19 (2006) (indicating that among the lawyers on Mexico’s National Commission of Human Rights “the attitude exists . . . that only states can violate human rights”); Mary Aileen Diez-Bacalso, A Convention Protecting Persons from Enforced Disappearances – An Imperative, www.afad-online.org/voice/may_05/internationallobby.htm (last visited Nov. 17, 2007) (recounting that during the negotiations of the new international treaty to prevent forced disappearances some “delegations opposed inclusion of non-state actors on the basis that only states can violate human rights”); Amnesty International, Amnesty International Response to Andrés Ballesteros, Jorge A. Restrepo, Michael Spagat, Juan F. Vargas, The Work of Amnesty International and Human Rights Watch: Evidence from Colombia, CERAC, Colombia, February 2007, AI Index: AMR 23/00602007, Feb. 21, 2007. The latter document states that “AI’s position . . . is that nonstate actors “abuse” human rights . . . while state actors “violate” human rights (because only states are party to human rights treaties). . . . Although such language may appear legalistic . . . it does correspond to legal definitions in international human rights law . . . .”

196

For example, in the 1995 Declaration of Quito, the Organization of American States condemned terrorism on the grounds that “it violates basic human rights.” Final Declaration of the Ninth Meeting of Heads of State and Government of the Rio Group, held in Quito on

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and beyond. As early as 1993, the U.N. Sub-Commission on the Promotion and Protection of Human Rights (the Sub-Commission) condemned “all acts, methods and practices of terrorism in all its forms and manifestations as gross violations of human rights.”197 This is a substantial statement. Other actors in the contemporary international decision process have also labeled such acts violations. For example, the World Conference on Human Rights “expresse[d] its dismay and condemnation” in regards to what it called “gross and systematic violations and situations that constitute serious obstacles to the full enjoyment of all human rights . . . includ[ing] . . . terrorism. . . .”198 The U.N. High Commissioner for Human Rights has noted that “[t]errorism is a threat to the most fundamental human right, the right to life.”199 The precise distinction between threat and violation is not made clear, but seems to imply that such non-state conduct, however lamentable, is not carried out by actors that have direct legal responsibility under international human rights standards. Euphemisms of “obstacle” and “threat” aside, many today see terrorism as a human rights violation. This has very different implications from conceiving of it as a threat to international peace and security, as the issue has been framed by the Security Council in repeated resolutions.200 It prioritizes the human concern over the statist concern. Given the understanding of terrorism as a human rights violation, both U.N. and regional human rights bodies have demanded that governments prevent it, always emphasizing the role of international law as the parameter of this effort. The Sub-Commission “call [ed] . . . upon Governments, in accordance with international standards of human rights and internationally recognized principles of due process, to take all necessary and effective measures to prevent and combat terrorism.”201

4 and 5 September, U.N. GAOR, 50th Sess., ¶ 5, U.N. Doc. A/50/425-S/1995/787 (Sept. 13, 1995), available at http://www.un.org/documents/ga/docs/50/plenary/a50-425.htm. This language was “recalled” in the subsequent Declaration of Lima to Prevent, Combat and Eliminate Terrorism, Apr. 26, 1996, available at http://www.yale.edu/lawweb/avalon/terrorism/ t_0013.htm. 197

U.N. Econ. & Soc. Council [ECOSOC], Sub-Comm’n on Human Rights, Consequences for the Enjoyment of Human Rights of Acts of Violence Committed by Armed Groups that Spread Terror among the Population, ¶ 1, Res. 1993/13, U.N. ESCOR, 26th mtg. (1993) (adopted without a vote).

198

World Conference on Human Rights, June 14–25, 1993, Vienna Declaration and Programme of Action, ¶ 30, U.N. Doc. A/CONF.157/23 ( July 12, 1993).

199

U.N. Econ. & Soc. Council, High Commissioner for Human Rights, Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights, Human Rights: A Uniting Framework, ¶ 2, U.N. ESCOR, 58th Sess., Agenda Item 4, U.N. Doc. E/CN.4/2002/18, (2002) (emphasis added).

200

See, e.g., Threats to International Peace and Security Caused by Terrorist Acts, S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001).

201

Sub-Comm’n on Human Rights Resolution 1993/13, supra note 197, ¶ 2.

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The General Assembly’s 2004 resolution on human rights and terrorism combines these concerns in a holistic manner. Its preamble recalls “the reference . . . of the [U.N.] Secretary-General . . . to the fact that terrorism is itself a violation of human rights and must be combated as such and that efforts at combating it must be pursued . . . in full compliance with established international norms . . . .”202 In fact, the Sub-Commission’s outgoing Special Rapporteur on terrorism and human rights recently noted that “all General Assembly and Commission [on Human Rights] Resolutions on ‘human rights and terrorism’, as well as some of the early SubCommission resolutions under the same title, speak of terrorism as a violation of human rights.”203 Still, she submits that “the exact meaning . . . and legal implications” of such an assertion “remain very controversial.”204 While some U.N. and regional bodies were characterizing terrorism as a human rights violation as far back as 1993, human rights NGOs have generally remained wary of using the terminology of violations even after September 11, 2001. Other constructs have been used to describe the problem. For example, the International Commission of Jurists’ Berlin Declaration states that, “Terrorism poses a serious threat to human rights.”205 Similarly, Human Rights Watch has noted that “[c] ontemporary terrorism and government responses to it pose a major threat to human rights values.”206 Notwithstanding this “major threat,” in practice, most international human rights NGOs have focused largely on the human rights violations associated with counter-terror rather than those associated with terrorism itself. For example, sixteen of the first twenty hits for the term terrorism on the website of Human Rights Watch yield criticisms of counter-terror.207 As the U.N. Sub-Commission’s outgoing rapporteur on terrorism and human rights208 related 202

Human Rights and Terrorism, G. A. Res. 59/195, U.N. GAOR, 59th Sess., preamble, U.N. Doc. A/RES/59/195 (2004).

203

Kalliopi Koufa, Final Report of the Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights, Terrorism and Human Rights, U.N. ESCOR, ¶ 54, U.N. Doc. E/CN.4/Sub.2/2004/40, (2004).

204

Id.

205

International Commission of Jurists, The Berlin Declaration: The ICJ Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism, preamble (Aug. 28, 2004), available at http://www.icj.org/news.php3?id_article=3503?=en.

206

Human Rights Watch, Job Posting, Terrorism/Counterterrorism Project Director, www.hrw. org/jobs/prog_projectdirector-tct2005-06-30.htm (last visited Sept. 14, 2005).

207

See www.hrw.org (last visited Oct. 10, 2007). This is an improvement from March 1, 2007 when the first twenty hits produced by the same search all focused on counter-terror. A similar search on the website of Amnesty International, also using the term “terrorism,” still yields 20 hits out of the first 20 that pertain to critiques of counter-terror. See www.amnesty.org (last visited Nov. 2, 2007).

208

In fact, her successor, Martin Schenin, the new U.N. Special Rapporteur on the promotion and protection of human rights while countering terrorism, interprets his mandate to refer largely to the human rights violations committed by states while countering terrorism, rather than the impact of terrorism itself on human rights. His mandate, enumerated in CHR Resolution

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in her final report, “the overall human rights movement may have been concentrating, possibly for too long, on the repressive measures adopted by Governments only, without paying much attention to the means used by those opposing them.”209 Fortunately, most organizations are aware that this is a problem, and some are starting to address it.210 This process should be accelerated and intensified. While the international lawyer cannot overlook the particular nature of governmental obligation in the human rights realm, or the fact that states are the only parties formally bound by most human rights treaties, we need to revisit the refusal to label terrorism a “violation.”211 To recognize terrorism in this way is consistent

2005/80, focuses on counter-terrorism. However, his reports could be important in developing a human rights approach to terrorism itself if he interpreted that mandate holistically. U.N. Commission on Human Rights Resolution 2005/80, Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, ¶ 14, ( July 2, 2005). In his initial report, the rapporteur did note that “States’ obligation to protect and promote human rights requires them to take effective measures to combat terrorism.” Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, ¶ 2, appended to U.N. Doc. A/60/370 (Sept. 21, 2005). He also envisaged a possible future thematic study on “the threat of suicide attacks as a specific challenge to the protection and promotion of human rights . . . while countering terrorism.” Id. ¶ 10. 209

Here she is, inter alia, quoting as important a human rights figure as Asbjorn Eide. Kalliope Koufa, Final Report of the Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights, U.N. ESCOR, 56th Sess., Agenda Item 6(c), ¶ 55, U.N. Doc. E/CN.4/Sub.2/2004/40 (2004). Some leading human rights activists have described this problem as a pattern in which two sentences are spent criticizing terrorism, while pages are dedicated to cataloguing government counter-terrorist violations. For an abbreviated example of this, see Human Rights First, Human Rights First Statement on the Fifth Anniversary of September 11 (Sept. 8, 2006).

210

Note, for example, the recent conference of experts organized by Amnesty International USA at New York University Law School which, for the first time, brought together leading human rights groups, including AI, Human Rights Watch, and Human Rights First, to develop a human rights approach to terrorism. The conference, Navigating Between Scylla and Charybdis: Confronting Terrorism as a Human Rights Issue, convened February 16–17, 2007, available at http://www.amnestyusa.org/Local_Events/Roundtable_Discussion/page.do?id= 1102220&n1=5&n2=50. Currently, the International Council on Human Rights Policy is undertaking a major study of the international human rights movement’s engagement with the issue of terrorism, complete with recommendations for better tackling the issue in future. International Council on Human Rights Policy, Talking About Terrorism – Risks and Choices for Human Rights Organisations (forthcoming 2008).

211

Failing to recognize terrorism as a human rights violation when committed by non-state actors evokes the often-criticized formalism of the state action doctrine in U.S. constitutional jurisprudence. As Edwin Chemerinsky has opined, “under any theory of rights—positivism, natural law, or consensus—the requirement for state action makes no sense . . . .” Edwin Chemerinsky, Rethinking State Action, 80 Nw. U.L. Rev. 503, 519 (1985). “[E]liminating the state action doctrine enhances protection of liberty by focusing attention directly on the valued rights.” Id. at 540. Justice Harlan indicates in his dissent in the Civil Rights Cases that the requirement risks giving a green light for powerful private actors to deprive people of rights. The Civil Rights Cases, 109 U.S. 3, 25–62 (1883) (Harlan, J., dissenting). While other legal concepts can

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with a view of human rights centered on the rights holders instead of on the perpetrators and recognizes the severity of the harm.212 In fact, in some instances, such as the September 2001 attacks in the U.S., Amnesty International has characterized these events as “the gravest abuses of fundamental human rights,”213 and that is often how victims experience them.214 Picayune linguistic distinctions between “abuses,” “threats” and “violations” must not appear to minimize the seriousness of the underlying acts, nor to unintentionally display ambivalence toward terrorism, nor to lower the level of urgency needed to address such practices. Efforts to be legally precise should not obscure the basic nature of human rights. To consider only one concrete example, the hideous mass trampling of nearly 1,000 Shiite pilgrims in Baghdad on August 30, 2005, in response to the rumor of the presence of suicide bombers in their midst, shows just what damage successive terrorist attacks can do to the collective psyche and how terrible a toll the fear they cause may take upon basic human rights to life and security of the person.215 be used to oppose non-state terrorism, exclusion of these acts from the category of human rights violation risks seeming to deprioritize the gravity of the threat they pose to human rights. 212

See, e.g., August Reinisch, The Changing International Legal Framework for Dealing With Non-State Actors, in Non-State Actors and Human Rights 37 (Philip Alston ed., 2005). He notes a “new awareness of the need to protect human rights, beyond the classic paradigm of the powerful state against the weak individual, to include protection against increasingly powerful nonstate actors.” Id. at 38. In other words, as Stephanie Farrior, former legal director at Amnesty International’s International Secretariat, has argued, “[i]f human rights are rights that we all hold by virtue of being human, then human rights law can and should provide protection against violations of those rights—not just by the state, but by any other powerholder.” Stephanie Farrior, Unpublished lecture on terrorism as a human rights violation (copy on file with the author). See also Philip Alston’s warning that “[a]n international human rights regime which is not capable of effectively . . . ensuring that private actors are held responsible, will not only lose credibility in the years ahead but will render itself unnecessarily irrelevant in relation to important issues.” Philip Alston, The ‘Not-a-Cat’ Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors?, in Non-State actors and Human Rights, supra, at 1, 19. Finally, in a report about torture, the NGO Redress has underscored what is at stake in this debate beyond terminology: “The question whether and if so how, human rights should apply directly to non-state actors is significant in responding to violations such as torture. From the victims’ perspectives, it is important to acknowledge conceptually that individual and collective rights have been violated. However, it is even more critical that mechanisms will be put in place at all levels that offer genuine protection, combat impunity and provide effective remedies for violations.” Lutz Oette, not only the State: Torture by Non-State Actors 11 (Carla Ferstman ed., REDRESS 2006) (emphasis added).

213

Amnesty International, USA: Amnesty International Appalled at Devastating Attacks Against Civilians (2001), available at http://web.amnesty.org/library/print/ ENGAMR511342001.

214

See, e.g., The Madrid Declaration, supra note 128.

215

See 965 Dead in Baghdad Stampede, CNN.Com, Aug. 31, 2005, http://www.cnn.com/2005/ WORLD/meast/08/31/iraq.main/.

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Moreover, what human rights advocates say about terrorism also has implications for what they can say about other non-state action in the future, like corporate abuses or “private” violence against women. Some of these practices have already been labeled violations, indeed “particularly grave human rights violation[s].”216 Referencing the responsibility of the state remains an important paradigm for human rights. However, the reality in the globalized world is that many other actors are increasingly powerful and hence pose particular risks for human rights.217 Human rights law cannot today be reduced simply to a critique of government counter-terrorism projects if it is to fulfill its own claims to universality. It must also be the basis for a human rights-based approach to counter-terrorism. B. The Relevant Legal Framework The terminological quagmire described above springs from the larger question of whether human rights law can be applied directly to non-governmental entities. The traditional view among some human rights lawyers has been that human rights law applies only to states and not to non-state armed groups, because only states can be parties to most human rights treaties. However, counter-practice shows increasing application of general human rights standards to armed opposition groups.218 For example, Bacre N’diaye, former U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, called on both the Sri Lankan government and the armed opposition group fighting against it, the Liberation Tigers of Tamil Eelam (LTTE), to “comply with . . . human rights standards.”219 The discussion of LTTE abuses by Philip Alston, current U.N. Special Rapporteur on extrajudicial, summary, or arbitrary executions, has been very progressive in this direction. He noted that his mission to Sri Lanka “clarified both the complexity and the necessity of applying human rights norms to armed groups,”220 and he has explicitly called on the LTTE to “refrain from violating human rights.”221 The Inter-American 216

Amnesty International, Making Rights a Reality: The Duty of States to Address Violence Against Women 11 (2004), available at http://web.amnesty.org/library/pdf/ ACT770492004ENGLISH/$File/ACT7704904.pdf (emphasis added).

217

Note for example the claim by the new US intelligence chief that Al Qaeda represents the most serious threat to US interests. Al-Qaeda the ‘worst threat’ to US, BBC News Online, Feb. 27, 2007, http://news.bbc.co.uk/2/hi/americas/6401427.stm. The U.N. High Level Panel also highlighted Al-Qaeda as a particular threat to the United Nations. High Level Panel, supra note 82, ¶ 146.

218

Liesbeth Zegveld, The Accountability of Armed Opposition Groups in International Law 47 (2002). For general discussion about the “Direct Accountability of Non-State Actors under International Law and before International Tribunals”, see Reinisch, supra note 212, at 82–87.

219

See Zegveld, supra note 218 at 48.

220

Extrajudicial, Summary or Arbitrary Executions, Report submitted by Special Rapporteur Philip Alston, Mission to Sri Lanka, U.N. Doc. E/CN.4/2006/53/Add.5, para. 26.

221

Id. at para. 85, emphasis added. Here he specifically references the rights to freedom of expression, peaceful assembly, freedom of association, family life and the right to vote. Id. Note also

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Commission on Human Rights has called on Colombian armed groups to respect the right to life of hostages.222 Even the U.N. Security Council has called on Afghan armed groups to “end . . . violations of human rights . . . and to adhere to the internationally accepted norms and standards in this sphere.”223 However, human rights experts use this language predominantly, as these examples illustrate, in situations of armed conflict, especially where the groups in question control territory. With regard to terrorism happening outside the scope of an armed conflict, they remain reticent to do so. Creative legal thinking is needed to develop an effective response to the grave human rights violations being perpetrated by terrorists in such contexts also. Mary Robinson argued in 2002 that “human rights should act as a unifying framework within which we can address the human insecurity that results from terrorism. . . .”224 This can only happen if lethal acts of terrorism are recognized as contravening human rights norms. The Universal Declaration of Human Rights preamble provides a crucial starting point when it proclaims that “every individual and every organ of society . . . shall strive . . . to promote respect for these rights and freedoms . . . and . . . to secure their universal and effective recognition and observance. . . .”225 This grounds a human rights approach to non-governmental abuses, but offers little in the way of specifics. Much more legal thinking is needed here, bringing together, inter alia, soft law, relevant principles of customary international law, general principles of law, and a forwardlooking approach to the interpretation of all human rights standards. International humanitarian law (IHL) and international criminal law concepts like crimes against humanity have been deployed, as an alternative to human rights law, to characterize and critique terrorism. With regard to the former, IHL does not apply outside the realm of armed conflicts.226 With regard to the latter, the term “crimes against humanity,” while conveying the gravity of the acts in question, has neither the same popular resonance nor the exact same set of legal consequences as “terrorism,” making it an insufficient alternative.

his more general assertion that “in some contexts it may be desirable to address the activities of [armed] groups within some parts of the human rights equation.” Extrajudicial, Summary or Arbitrary Executions, Report submitted by Special Rapporteur Philip Alston, U.N. Doc. E/ CN.4/2005/7, para. 76. 222

Annual Report of the Inter-American Commission on Human Rights 1996, OEA/Ser.L/V/ II.95, doc. 7, rev., (March 14, 1997) at 818–19.

223

S.C. Res. 1193, ¶ 14, U.N. Doc. S/RES/1193 (Aug. 28, 1998).

224

Mary Robinson, U.N. High Commissioner for Human Rights, Introductory Statement, U.N. ESCOR, Comm’n on Hum. Rts., 58th Sess., Agenda Item 4 (Mar. 20, 2002).

225

Universal Declaration of Human Rights, supra note 47.

226

The Geneva Conventions of August 12, 1949, Common Article 2, Oct. 21, 1950, 75 U.N.T.S. 31. A few provisions do apply in peacetime such as the obligation to disseminate the Conventions.

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Hence, human rights lawyers must construct an approach to terrorism as a human rights violation. Such a naming would reflect the values and goals associated with the fundamental principles of human rights at stake, and would recognize this very real manifestation of threats to human dignity today. As noted above, the importance of a human rights approach to terrorism includes its ability to focus attention on neglected but essential aspects of these threats to dignity, such as the impact of terrorism on women’s human rights, to which the article now turns.227 C. The Gender Dimension of Terror/Torture Opponents of recognizing women’s rights as human rights often used the same arguments now proffered to exclude non-state terrorism from the human rights framework.228 Thus, it is no accident that some of the most vocal proponents of developing a human rights approach to terrorism have been women’s human rights advocates.229 Over time, the trajectory of women’s human rights has begun to change the contours of mainstream human rights discourse, including the discourse about torture.230 Hopefully, we are on the cusp of a similar development with regard to terrorism and human rights. Just as a women’s human rights perspective has changed our thinking about torture,231 so it can change our thinking about terror. The intersection of terrorism and women’s lives, then, is a useful place to focus attention. Women are frequent targets of terrorist activity, either as part of the civilian population generally, or when particularly targeted as women. Gender-based terrorism, 227

The absence of discussion about the specific impact of terrorism on women is mirrored in the argued absence of women’s voices in debates about terrorism. See, e.g., Jennifer L. Pozner, Missing Since 9-11: Women’s Voices, Newsday, Dec. 13, 2001, available at http://www. commondreams.org/views01/1213-04.htm.

228

See Catherine MacKinnon, Are Women Human?, in Reflections on the Universal Declaration of Human Rights 171 (Barend van der Heijden & Bahia Tahzib-Lie eds., 1999). These arguments included the fact that the perpetrators are often not states and therefore the acts are not classical human rights violations; that tackling these abuses will muddle human rights and that the human rights movement does not know how to work on these kinds of acts. No matter how grave the suffering, it occurred outside the accepted paradigm and hence was to be overlooked or deemphasized.

229

See, e.g., Gita Sahgal, Speech for Public Roundtable, AIUSA Meeting: “Navigating Between Scylla and Charybdis: Confronting Terrorism as a Human Rights Issue,” Feb. 16, 2007 (on file with the author). Sahgal is the director of Amnesty International’s gender unit, and a founding member of Women Against Fundamentalisms.

230

See, e.g., Report of the first U.N. Special Rapporteur on Violence against Women, U.N. Doc. E/CN.4/1996/53, at 12 (arguing that international law experts consider reconceptualizing severe forms of domestic violence as torture). The explicit inclusion of numerous gender-specific harms in the statute of the international criminal court is also the direct result of women’s human rights advocacy. See Hilary Charlesworth & Christine Chinkin, supra note 45, at 309–37.

231

See Copelon, supra note 180.

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such as attacks on women’s health clinics that perform abortions or killings of women based on their refusal to conform to “dress codes,” should be of particular concern to the human rights movement, especially because these issues are often downplayed or neglected altogether within the security paradigm of terrorism.232 Governments and the media rarely label such acts as terrorism. Women face particular consequences of terrorism, consequences to which all actors have paid inadequate attention.233 Terrorism exacerbates other violations of women’s human rights and tends to create an environment that threatens those rights. For example, Women’s International League for Peace and Freedom has argued that terrorism, along with other factors like armed conflict, forces increasing numbers of women to turn to prostitution.234 As women are displaced, forced to leave rural areas and abandon other jobs, they may have fewer options to sustain their families. Furthermore, such terrorism-caused displacement puts them at a higher risk of sexual violence and exploitation.235 Of course, sexual violence and torture may themselves constitute forms of terrorism against women, similar to Asma’s experience in El Manara. Feminist international lawyers have argued that violence against women should be seen as a warning sign for armed conflict.236 The same may be said of terrorism. Groups that engage in these sorts of attacks on civilians as a whole often pursue misogynist agendas and carry out, or advocate, severe forms of violence against women. For example, some argue that had effective action been taken to end the Taliban’s gender apartheid, such action could well have disrupted the activities of Al Qaeda or brought them to light, and conceivably September 11 might have

232

See, e.g., Anissa Hélie, The U.S. Occupation and Rising Religious Extremism: The Double Threat to Women in Iraq, June 24, 2005, ZNet.org, http://www.zmag.org/content/showarticle. cfm?SectionID=41&ItemID=8158. She details attacks by an Iraqi group, the Council of Fighters, against unveiled Iraqi women and Iraqi Christian women.

233

Work within the mainstream human rights movement to combat violence against women has produced some important documentation of terrorism against women by non-state armed groups, though not necessarily using the label of terrorism. Amnesty International’s campaign to Stop Violence Against Women is one example of such work. See, e.g., Amnesty International, Colombia: “Scarred Bodies, Hidden Crimes”: Sexual Violence Against Women in the Armed Conflict (2004), available at http://web.amnesty.org/ library/print/ENGAMR230402004. The challenge is to bring the insights from this body of work into the work on the “war on terror,” a merger which has not happened thus far.

234

Women’s International League for Peace and Freedom, Terrorism and War Increases Prostitution, June 22, 2005, available at www.peacewomen.org/news/International /July05/TERRORISM. html.

235

Id.

236

For an elaboration of this thesis, see Felicity Hill, Women’s Contribution to Conflict Prevention, Early Warning and Disarmament, in United Nations Institute for Disarmament Research, Disarmament Forum (2003), available at http://www.unidir.org/pdf/Gender/ 4%20Hill.pdf.

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been avoided.237 Furthermore, women’s organizations are often among the first to document and warn of the rise of terrorist organizations. For example, Women Living Under Muslim Laws, an international NGO active on women’s human rights issues in the Muslim world and diaspora communities, had “been warning since at least the early 1990s about the existence of an ‘Islamist international’ with the organizational, human, financial, and military means to threaten secularists, feminists and democrats.”238 They further identified Saudi Arabia as a prime sponsor of such groups. The world failed to heed their warning, to disastrous effect. Empowering women is purported to be a vital way of combating terrorism. It offers a kind of counter-terror method that is antithetical to those based on human rights abuses, like torture. As Valentine Moghadam, head of the gender unit at UNESCO, has written, “Women’s peace movements in particular constitute an important counter-movement to terrorism, and they should be encouraged and funded.”239 Most security efforts and much counter-terrorism are conceived of in decidedly masculinist ways.240 Using a women’s human rights lens to unpack such approaches, even while similarly deconstructing terrorist projects, can be a useful critical tool. Thoughtful women’s human rights analysis takes us closer to the position we must occupy in the current historical moment: a position of true radical universalism that rejects terror and torture, and has high standards for all actors. Rosalind Petcheskey’s speech in New York City two weeks after September 11 provides an excellent example of this sort of theorizing. She said: I [do not] believe we should succumb to the temptation of casting our current dilemma in the simplistic, Manichean terms of cosmic Good vs. Evil. Currently, this comes in two opposed but mirror-image versions: the narrative, advanced not only by the terrorists and their sympathizers but also by many on the left in the U.S. and around the globe, that blames U.S. imperialism and economic hegemony for the ‘chickens coming home to roost’; versus the patriotic rightwing version that casts U.S. democracy and freedom as the innocent targets of Islamist madness. Both these stories erase all the complexities that we must try to factor into a different, more inclusive ethical and political vision. The Manichean, apocalyptic rhetorics that

237

See Amy Caiazza, Why Gender Matters in Understanding September 11: Women, Militarism and Violence, I908 Inst. for Women’s Pol’y Res Briefing Paper 1 (2001).

238

Valentine Moghadam, Violence and Terrorism: Feminist Observations on Islamist Movements, States and the International System, Alternatives: Turkish J. Int’l Rel., Summer 2002, at 20.

239

Id. at 16.

240

For gendered analyses of responses to terrorism, see Ratna Kapur, Un-Veiling Women’s Rights in the ‘War on Terrorism’, 9 Duke J. Gender L. & Pol’y 211 (2002); Catherine MacKinnon, Women’s September 11th: Rethinking the International Law of Conflict, 47 Harv. Int’l. L.J. 1 (2006), and Hilary Charlesworth & Christine Chinkin, Sex, Gender and September 11, 96 Am. J. Int’l L. 600 (2002).

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echoed back and forth between Bush and Bin Laden in the aftermath of the attacks– the pseudo Islamic and the pseudo Christian, the jihad and the crusade–both lie.241

VI. A BRIEF NOTE ON MUSLIM FUNDAMENTALIST TERRORISM242 This brings us to the question of specifically what or whom governments are fighting in the current “war on terror.” Very few authors in international law make this clear.243 While I appreciate the intention of many writers not to single out Islamist groups or to stereotype Muslims as perpetrators, and to attempt to include the many other terrorisms–in places like Sri Lanka and Colombia–in this discussion, the fact that the “war on terror” targets an enemy whose name we dare not speak has clouded our thinking. Hence, a brief discursion on the “other” side in this “war” is warranted. A. Contemporary Transnational Fundamentalist Terrorism There is much violence that could be labeled “terrorism” happening in the many armed conflicts around the world, but now when we talk about international terrorism, we very often must confront the violence of certain fundamentalist244 Muslim jihadi groups. Today, the acts of such groups are those that most often incite, or serve as the justification for, the undermining of basic international norms by governments around the world, including norms on torture.245 Furthermore, 241

Rosalind Petcheskey, Phantom Towers: Feminist Reflections on the Battle between Global Capitalism and Fundamentalist Terrorism, in Nothing Sacred, supra note 4 at 357, 358.

242

For further discussion of these questions, see Karima Bennoune, Book Review: Enforcing International Law Norms Against Terrorism, 100 Am. J. Int’l L. 507 (2006); Haideh Moghissi, Feminism and Islamic fundamentalism: The Limits of Postmodern Analysis (1999), and Mansoor Moaddel, Islamic Modernism, Nationalism and Fundamentalism: Episode and Discourse (2005).

243

For an exception to this rule, see Michael Reisman, Plenary Speech to the Inaugural Meeting of the European Society of International Law, International Law in the Shadow of Empire: The Shadows Looming over International Law (May 2004), in 6 Baltic Y.B Int’l L. 7, 12 (2006). While I could not agree with some of his conclusions and assertions—the most objectionable of which was that Osama Bin Laden may know more about Islam than George Bush or Tony Blair when the latter heads of state assert that radical jihadists do not represent the religion—Reisman’s naming of the problem was useful.

244

While some object to the use of this term, many opponents of such movements from within the Muslim world prefer this label. It is seen as more accurate than “Islamist” which is both derogatory of Islam and privileges “Islamist” claims of authenticity. See Bennoune, supra note 4, at 76. Furthermore, the term “fundamentalist” situates such movements in a broader global context. Others who use the term “fundamentalist” still recognize that it is potentially laden with negative meanings, and has been used pejoratively by some only to talk about Muslims or to refer to all or most Muslims. See, e.g., Amrita Basu, Hindu Women’s Activism in India and the Questions It Raises, in Appropriating Gender: Women’s Activism and Politicized Religion in South Asia 167, 167 (Routledge 1997).

245

Reminiscent of Nagel’s prognosis, these groups in turn subsequently benefit from increased recruitment. Paul Reynolds, Iraq War ‘Helped al-Qaeda Recruit’, BBC News Online, Oct. 19, 2004, http://news.bbc.co.uk/2/hi/middle_east/3756650.stm.

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such groups have repeatedly committed acts of violence across many regions, including in Morocco, Algeria, Tunisia, Egypt, Israel/Palestine, Iraq, Afghanistan, Pakistan, Bangladesh, Indonesia, and beyond.246 This phenomenon is too pervasive and has too great an impact on human rights to be ignored. However, the human rights consequences of Muslim fundamentalism and fundamentalist terrorism represent complex topics that should be the subject of a much longer study. They can only be addressed here in a schematic way, focusing on the unique challenges these phenomena pose today for a holistic discussion of terror/torture. Merieme Hélie-Lucas has defined fundamentalisms as “political movements of the extreme right, which, in a context of globalization . . . manipulate religion . . . in order to achieve their political aims.”247 The term refers to various theocractic projects found in all of the world’s religious traditions, though here we focus especially on those in the Muslim context. Though not without its own set of difficulties, the importance of the terminology of fundamentalisms is that it speaks across religious boundaries about movements within many traditions.248 Many in the women’s human rights community, and others who oppose fundamentalisms, have roundly criticized human rights organizations for failing to recognize and respond to the unique challenges posed by these movements.249 While nearly all these movements and their component parts push agendas that threaten human rights, not all of them engage in violence or terrorism.250 Ultimately, however, we will have to confront both these ideologies and the tactic of terror that their proponents

246

For discussion of efforts to recruit for such groups in the United States, see Michael Moss & Souad Mekhennet, An Internet Jihad Aims at U.S. Viewers, N.Y. Times, Oct. 15, 2007, available at http://www.nytimes.com/2007/10/15/us/15net.html?ex=1350100800&en=9d040360579f 3a9b&ei=5088&partner=rssnyt&emc=rss.

247

Marieme Hélie-Lucas, What is Your Tribe? Women’s Struggles and the Construction of Muslimness, Dossier 23–24, available at http://www.wluml.org. Scottish sociologist Steve Bruce has written that “fundamentalisms rest on the claim that some source of ideas, usually a text, is inerrant and complete . . . fundamentalists also claim the existence of some perfect social embodiment of the true religion of the past.” What is Fundamentalism?, in Steve Bruce, Fundamentalism 13–14 (2000).

248

See, e.g., Fundamentalisms and Human Rights, supra note 7.

249

This includes the Hindu right, portions of which has been involved in atrocities against Muslims in Gujarat; the fundamentalist portion of the Jewish settler movement in the West Bank and Gaza some of whom have been involved in attacks on Palestinians; and Christian fundamentalists in the United States (who are among the most politically powerful fundamentalists in the world) some of whose most extreme partisans have engaged in terrorism against women’s health clinics. See Fundamentalisms Observed (Martin Marty & R. Scott Appleby eds., 1991); Kevin Phillips, American Theocracy: The Peril and Politics of Radical Religion, Oil and Borrowed Money (2006); Chetan Bhatt, Liberation and Purity: Race, New Religious Movements and the Ethics of Postmodernity 77–107 (1997).

250

For a useful typology of Muslim fundamentalist groups, see Awaaz – South Asia Watch, The Islamic Right – Key Tendencies, June 2006, available at http://www.awaazsaw.org/awaaz_ pia4.pdf.

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sometimes employ if we are to rise to the significant human rights challenge that they together pose. Among Muslim fundamentalist groups that engage in terrorism, many are related to (however loosely) or inspired by Al Qaeda, and share a lethal mix of purported legitimate grievances, fascist251 and misogynist ideology, nihilism, and frightening levels of funding, training and technological prowess. In circular fashion, they use and justify terror and torture, even as they elicit governmental torture and terror (both of which they claim to be responding to). Al Qaeda itself has now splintered into a thousand shards of glass, each still capable of inflicting serious injury such as attacks like the Madrid train bombing.252 Prominent new Al Qaeda affiliates–for example Al Qaeda in the Islamic Maghreb, which seeks to rekindle the horrors of Algeria’s civil war as depicted in El Manara–demonstrate their emergence with new acts of terror.253 Most international lawyers, including human rights lawyers, have failed to grapple with the specific challenges to international law posed by such movements.254 Despite valid concerns about the very real problems of Islamophobia255 in the current moment and about discriminatory conduct of counter-terrorism initiatives, we must specifically recognize these Muslim fundamentalist terrorist groups as a particular threat to human rights. However, such a discussion needs to be conducted with self-criticism and impartiality, and without discriminatory overtones. 251

This is a word with powerful historical connotations. Nevertheless, critics of such movements from within the Muslim world have been using this term to describe extremist movements. For example, in the wake of the London bombings, the Arabic-language international media, like Asahrq al Awsat and the website Elaph, published articles by Arab writers about “Islamic fascism.” See Un fascime musulman? Un tabou est tombé, Courrier Int’l, July 13–20, 2005, at 12.

252

See Lee Keath, Bin Laden Wants ‘Caravan’ of Martyrs, Associated Press, Sept. 11, 2007, available at http://apnews.myway.com/article/20070911/D8RJ8QL81.html (“the network is growing in strength, intensifying its efforts to put operatives in the United States and plot new attacks.”)

253

Un camion piégé fait 34 morts et 60 blessés à Dellys, El Watan, Sept. 9, 2007 (detailing a series of bloody attacks by this group in Algeria during 2007). ‘Dozens killed’ in Algeria blasts, BBC News Online, Dec. 11, 2007, http://news.bbc.co.uk/2/hi/africa/7137997.stm.

254

The major exception has been scholarship in the women’s human rights field. See, e.g., Religious Fundamentalisms and the Human Rights of Women (Courtney Howland ed., 2001).

255

The term denotes hostility towards Islam and Muslims generally, often resulting in assaults and restriction of civil rights. See Commission on British Muslims and Islamophobia, Islamophobia: Issues, Challenges, and Action 7–8 (2004), available at http://www. insted.co.uk/islambook.pdf, and Commission on Human Rights Resolution 2004/6, Combating Defamation of Religions, ¶¶ 6, 16, U.N. Doc. E/CN.4/RES/2004/6 (Apr. 13, 2004). However, some prominent dissidents of Muslim heritage have staunchly criticized the concept of Islamophobia as “confus[ing] criticism of Islam as a religion and stigmatization of those who believe in it.” See, e.g., Writers Issue Cartoon Row Warning, BBC News Online, Mar. 1, 2006, available at http://news.bbc.co.uk/1/hi/world/europe/4763520.stm.

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Ordinary Muslims or the Muslim religion as a whole must not be confused with these specific fundamentalist political or armed movements and their adherents. Most usefully, international lawyers should conceptualize the problem of Muslim fundamentalism in the context of tackling the human rights implications of fundamentalisms more globally. ASIL’s willingness to host a panel on human rights and fundamentalisms at its recent centennial meeting indicates some movement in this direction, but international lawyers must give much more consideration to these issues.256 On the other hand, some responses to these Muslim fundamentalist groups suffer from what B.S. Chimni has called a kind of hegemonic construct of human dignity.257 Some use their critique of Muslim fundamentalist violence and ideology as a springboard for racist discourses about Muslims and the Muslim world writ large,258 or as a justification for human rights violations, like torture. Again, in renewed circular fashion, we see that apologies for torture weaken criticism of terror. Such a hypocritical approach to Muslim fundamentalism narrows the space for legitimate critiques of these movements, including of their resort to terrorism, which then are deemed to risk blending in with the hegemonic discourses. The latter narratives lack self-consciousness about a range of failings closer to home including human rights violations in the “war on terror,” the role of other religious fundamentalisms in liberal democracies, and Western contributions to the rise of Muslim fundamentalism. B. The Causes of a “Disease Masquerading as a Cure” The problem of fundamentalist movements in the Muslim world, especially those that engage in terrorism, has both endogenous and exogenous causes. Both the current encounter with globalization and past encounters with colonialism arguably contributed to its emergence.259 Furthermore, initial support for such

256

For the proceedings of this panel, see Human Rights and Fundamentalisms, supra note 7.

257

B.S. Chimni, International Law and World Order: A Critique of Contemporary Approaches 120 (1993). For an example of this sort of flawed critique of Muslim fundamentalism, see Wedgwood, supra note 13, at 103

258

“Islamo-fascism Awareness Week,” organized on U.S. college campuses in October 2007 by conservative activist David Horowitz, provides a prime example. The subject of its critique slips easily and mistakenly from fundamentalist terrorists to “Islam.” For a description of this event by its protagonists, see http://www.terrorismawareness.org/islamo-fascism-awarenessweek/ (last visited Oct. 26, 2007). For criticism of this event, see Ali Eteraz, Laughing at Islamo-Fascism Awareness Week, Oct. 8, 2007, http://www.huffingtonpost.com/ali-eteraz/ laughing-atislamofasci_b_67565.html. To critique such an event is not to deny that there are some Muslim fundamentalist armed groups that could be labeled fascist, as noted above. See supra note 251. Unfortunately, the absence of a systematic and principled human rights based critique of these movements at the international level has left the terrain vacant, to be filled by discourses like those associated with Islamo-fascism Awareness Week.

259

Olivier Roy, Why Do They Hate Us? Not Because of Iraq, N.Y. Times, July 22, 2005, at A21.

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ideological movements from many of the governments that are now fighting terrorism greatly exacerbated the situation. Western powers long believed, whether in the context of colonialism or of the Cold War, that they could nourish fundamentalists in the Arab and Muslim world as a counterbalance to secular nationalists and leftists whom they perceived as posing a greater threat to their interests.260 The classic example of this is the now-infamous training, supported by the U.S. (with significant British, Pakistani and Saudi involvement), of anyone willing to fight the Soviet Union in Afghanistan–no matter how extreme their ideology.261 The Afghan war is crucial to understanding how this problem metastasized so quickly. Many of those founding or leading terror cells from the Philippines to Morocco fought in Afghanistan, where they built a sophisticated and dangerous network, and then took their training home with them.262 Today, we must remember that failed U.S. Cold War policy was partially responsible for the emergence of these terrorist movements in the first place–a historical fact with which we have utterly failed to come to terms. Such proof of the law of unintended consequences also suggests a pragmatic reason to proceed with great caution in determining current policy. The other major contributing factor from outside the Muslim world, particularly to recruitment and sympathy for Muslim fundamentalist armed groups, and the apologetics on their behalf from various quarters, is that of disastrous Western policies toward Muslim countries. Examples include 2003’s illegal invasion of Iraq263 and failure to equitably resolve the Palestinian-Israeli conflict.264 Many international human rights activists recognize the legitimacy of grievances about these policies, and the bases for some of these grievances in international law. However, these causes are latched on to by fundamentalist movements that seek to advance their own agendas.265 Their project rather is to construct theocratic,

260

See, e.g., Richard Sale, Analysis: Hamas History Tied to Israel, United Press Int’l, June 18, 2002; Human Rights Watch, Backgrounder On Afghanistan: History Of The War (2001), available at http://www.hrw.org/backgrounder/asia/afghan-bck1023.pdf, and Robert Dreyfuss, Devil’s Game: How the United States Helped Unleash Fundamentalist Islam (2005).

261

See, e.g., Afghanistan: International Responsibility for Human Rights Disaster, supra note 15.

262

See Godfrey Jansen, The “Afghans”—an Islamic Time Bomb, Middle E. Int’l, Nov. 20, 1992, at 16.

263

On the legality of the war, see Thomas Franck, What Happens Now? The United Nations After Iraq, 97 Am. J. Int’l L. 608 (2003).

264

See, e.g., The Iraq Study Group Report 54–55 (2006).

265

See, e.g., Nahda Younis Shehada, The Rise of Fundamentalism and the Role of the ‘State’ in the Specific Political Context of Palestine, in Warning Signs of Fundamentalisms 135 (Ayesha Imam et. al. eds., 2004), and Bhatt, supra note 248, at 136–45.

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despotic states of their own that would deny the human rights of women,266 minorities, and freethinking members of the majority.267 As Algerian anthropologist Mahfoud Bennoune often said, such an ideology is “a disease masquerading as a cure.”268 While the underlying sources of frustration must be addressed, including by and with international human rights law, these movements represent a grave threat to international human rights themselves. Furthermore, endogenous causes of fundamentalism in the Muslim world must not be forgotten, such as bad governance, lack of adequate religious reform, discriminatory attitudes about women and non-Muslims, as well as lack of enjoyment of human rights.269 Any struggle against terrorism that does not seek to comprehend and address its causes and context is doomed to failure. There is no question that we must address the root causes that contribute to the decision of some to turn to terrorism or of others to support that violence. However, we must not forget that extremist ideology is also to blame. And we should be wary of drawing a straight causal line between poverty or other human rights problems and a proclivity for terrorism.270 Many who turn to fundamentalist terrorism are not the most downtrodden, but frustrated middle class professionals and educated persons.271 Moreover, as Wilder Tayler, former Legal and Policy Director for Human Rights Watch, reminds us, terrorism is always a choice; it is not inevitable.272 Many who seek to combat and end the most egregious human rights violations do not make this choice.273 International lawyers must neither overlook the terrible toll that terrorism has exacted within societies in the global South, nor make easy assumptions about attitudes and priorities in the broader Muslim and Arab worlds and communities. Many

266

For an argument about the impact of fundamentalist movements on women’s human rights, see Courtney Howland, The Challenge of Religious Fundamentalism to the Liberty and Equality Rights of Women: An Analysis under the United Nations Charter, 35 Colum. J. Transnat’l L. 271 (1997) (especially 305–16).

267

See, e.g., Bhatt, supra note 248, at 107, and Moghissi, supra note 242, at 64–76.

268

See Karima Bennoune, supra note 4.

269

Marc Saghie, Un Siècle d’Islam Politique, June 15, 2003, Courrier Int’l, available at http:// www.mafhoum.com/press5/150S22.htm.

270

See Sidney Jones, Asking the Right Questions to Fight Terror, Jakarta Post Jan. 9, 2006, available at http://www.crisisgroup.org/home/index.cfm?id=3863.

271

Peter Mansfield, A History of the Middle East 377–78 (2d ed. 2003).

272

Wilder Tayler, Notes on the Human Rights Movement and the Issue of Terrorism, presented at the International Council on Human Rights Policy, International Meeting on Human Rights and Political Violence, Lahore, May 20–22, 2005, at para. 71 (citing Bill O’Neill), available at http://www.ichrp.org/public/workingpapers.phplang=FR&search_ auteur=wilder+tayler&search=go.

273

O’Neill, Conference Concept Paper, supra note 193, at 11.

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in those communities are hardcore opponents of terrorism and fundamentalism,274 and have looked to the international community to recognize the threats that they themselves face from such movements.275 For them, this is not an East-West clash of civilizations, but a political struggle within their own community over the human rights framework of society. As a group of dissident Muslim intellectuals, including Salman Rushdie, recently wrote in response to the controversy regarding Danish cartoons of the Prophet Mohamed:276 “It is not a clash of civilisations nor an antagonism between West and East that we are witnessing, but a global struggle that confronts democrats and theocrats.”277 C. The Radical Universalist Response In such an environment, advocates of international human rights law need to make clear that human rights law protects proponents of fundamentalist views from torture and other human rights abuses, but at the same time protects women, religious minorities and freethinkers from the terror of any such proponents who employ it. For example, these advocates must support protection of the human rights of Palestinians from the Israeli military and of Israeli civilians from suicide bombings by Palestinian armed groups; they must be outraged both by U.S. torture at Abu Ghraib and armed group murders of Iraqi civilians, and they must campaign actively against both.278 This is the radical universalism needed to weather the dark days of post-September 11 polarization. International human rights lawyers cannot afford to be (or to appear) naïve about the identities and agendas of some of the victims on whose behalf we work in the context of human rights and counter-terrorism. Some of these same individuals in other situations have been, or will be, or seek to be, perpetrators or advocates for 274

See the words of Mohammed Sayed Tantawi, the Grand Imam of Egypt’s al-Azhar, on Sept. 12, 2001. “[K]illing civilians is a horrific, hideous act that no religion can condone.” Quoted in James Reston Jr., Seeking Meaning from a Grand Imam, Wash. Post, Mar. 31, 2002, at B04. See also the writing of Algerian journalist Mohamed Sifaoui, including, Mohamed Sifaoui, Inside Al Qaeda, How I Infiltrated the World’s Deadliest Terrorist Organization (2004), and Oui, c’est cette terreur que nous avons vécue seuls et isolés: Le témoignage accablant de Cherifa Kheddar, Speech by Cherifa Kheddar, Director of the Djazairouna Association of the Families of Victims of Terrorism, to the International Conference Against Terrorism, Paris, Sept. 11, 2007. In part, recognizing terrorism as a human rights violation is an important means of offering support for such voices.

275

See Charaf Eddine, supra note 78.

276

For a definitive description and analysis of the cartoon controversy, see Jeanne Favretsaada, Comment Produire Une Crise Mondial Avec Douze Petits Dessins (Les Prairies ordinaries 2007).

277

Writers Issue Cartoon Row Warning, supra note 255.

278

Human rights organizations have done some very good work documenting the non-state abuses mentioned in this litany, even if not labeling them as terrorism or as human rights violations. See, e.g., supra note 107 and infra note 289. However, much remains to be done, especially in the campaigning sphere.

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grave abuses (such as violence against women, or discrimination, or indeed, attacks on civilians). That does not mean that we should not defend their non-derogable human rights, but rather that human rights theorists must be thoughtful and balanced about the broader context of our work and must responsibly consider the arguments regarding proposed derogations of derogable rights. For an example of a key issue of balance, while human rights advocates are right to express concerns that governments will use counter-terrorism laws to weaken asylum law and invalidate or slow legitimate asylum claims,279 we must also recognize and take into account that refugee status is not available for those who have participated in human rights violations.280 Non-refoulement protection may still be available, preventing the individual’s return should he or she be able to establish a risk of abuse.281 However, if we are demanding non-refoulement of individuals who may have participated in human rights abuses such as terrorism, we must systematically demand that, though the person not be returned and their human rights be protected from torture and the like, they still must be investigated and brought to justice in accordance with international standards in a jurisdiction that will respect their human rights.282 This allows us to stand by both sets of victims and to take seriously our own impunity claims–that there should not be exemption from punishment for grave human rights abuses. Human rights advocates must remember those claims and combat impunity, whether the abuses in question are acts of terror, or of torture. The human rights movement must begin to work with victims of terrorism, recognizing them as victims of human rights violations, and using many of the tools developed to defend other victims to defend their rights to truth, justice and rehabilitation.283 In the current moment, this requires a willingness to deal in complexity rather than simplicity. As Cherifa Kheddar, the director of Djazairouna–an 279

Human Rights First, Abandoning the Persecuted: Victims of Terrorism and Oppression Barred from Asylum (2006), available at www.humanrightsfirst.info/ pdf/06925-asy-abandon-persecuted.pdf.

280

Article 1(F) of the Convention Relating to the Status of Refugees stipulates, in relevant part, that “[t]he provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that : a) He has committed a crime against peace, a war crime, or a crime against humanity . . . c) He has been guilty of acts contrary to the purposes and principles of the United Nations.” Convention Relating to the Status of Refugees, art. 1(F), July 28, 1951, 19 U.S.T. 6223, 189 U.N.T.S. 150.

281

See, e.g., U.N. Convention against Torture, supra note 134, at art. 3.

282

For further discussion of these issues, see Rene Bruin & Kees Wouters, Terrorism and the Nonderogability of Non-refoulement, 15 Int’l J. Refugee L. 5 (2003).

283

The human rights movement has focused much attention on these rights in general in recent years. See, e.g., The Basic Principles and Guidelines on the Right to a Remedy and to Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Commission on Human Rights, Resolution 2005/35, Apr. 19, 2005.

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Algerian association of the families of victims of terrorism–recently said at the International Conference Against Terrorism, held in Paris on Sept. 11, 2007, “neither the cowardice of institutions, nor their simple condemnations of terrorist acts, will end fundamentalist violence, in the absence of a courageous politics, both at the regional and international levels.”284 There have been some important efforts in this direction. For example the Spanish section of Amnesty International reportedly sent observers to parts of the trial of the perpetrators of the Madrid bombings not only to make sure that the rights of the defendants were being respected, but also to show solidarity with victims and determine whether their needs were being taken into consideration.285 Such models should be repeated and elaborated. The best response to the particularist approach of some governments that only recognize the threats from terrorism, and not from unfettered counter-terrorism, is not a particularist human rights response that focuses only on the damage wrought by counter-terrorism. Instead, the best response is a radical universalist approach that brings attention to both halves of terror/torture. This does not mean that human rights advocates should soften their critique of government counter-terrorism. Both critiques spring from the very same set of commitments: opposition to the deliberate, instrumental infliction of severe suffering on human beings. VII. CONCLUSION: THINKING THE NEW In the wake of September 11, philosopher and political scientist Seyla Benhabib challenged intellectuals to “think the new.”286 The international legal academy has struggled to meet this challenge. If international human rights lawyers, in particular, do not do so, we risk, as Benhabib presages, continuing with a “tired paradigm,”287 easily criticized as dating from the prelapsarian time before September 11. 284

Kheddar, supra note 274, at 5 (translated from French by the author).

285

Conversation with Esteban Beltrán, Director of Amnesty International – Spain, Aug. 2007 (notes on file with the author).

286

Seyla Benhabib, Unholy Wars, in Nothing Sacred, supra note 4 at 397, 397. Here she was calling for creative engagement with the challenges posed by transnational fundamentalist terror networks. This is not to be confused with discourses that suggested abandoning fundamental precepts of international law in the wake of September 11, exemplified by writers like Michael Glennon. See, e.g., Michael Glennon, Why the Security Council Failed, Foreign Aff, May/June 2003. There have indeed been some important attempts to push international human rights law thinking forward. See, e.g., Non-State Actors in the Human Rights Universe (George Andreopoulos et. al. eds., 2006). However, as a discipline, we have yet to come to terms with the challenge of terrorism. As Susan Waltz notes in her blurb on the back cover of the Andreopoulos volume, “[s]cholarship has not kept pace with the politics . . . .” Id. at back cover.

287

Benhabib, supra note 286. In Benhabib’s words, “[t]his is the task at which Susan Sontag, Fred Jameson, and Slavoj Zizek have failed us by interpreting these events along the tired paradigm of an anti-imperialist struggle by the ‘wretched of the earth.’ Neglecting the internal dynamics and struggle within the Islamic world and the history of regional conflicts in

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Classically-minded human rights lawyers need to carefully rethink their reified emphasis on the state to the extent that it minimizes the threats to human rights from other actors. In fact, we must grapple with a complicated contemporary landscape in which globalization and a range of transnational threats (like terrorism) mean that, in some situations, some non-state actors may be more powerful relative to the state–and even more so relative to victims–than we have heretofore seen, and hence may pose a significant threat to human rights. The state/non-state actor power differentials vary widely, as do the actual risks from terrorism versus government representations of such risks. In many situations we continue to face truly uneven power differentials and need to be careful of artificial equivalencies. Still, new thinking is warranted, given that some non-state entities like Al Qaeda and related groups may have as much destructive power as some states, and as much ability to shape international events and harm human rights. Speaking of Al Qaeda and related groups, Benhabib argued that a novel approach is necessary because [t]he emergence of non-state agents capable of waging destruction at a level hitherto thought to be only the province of states and the emergence of a supranational ideological vision with an undefinable moral and political content, which can hardly be satisfied by ordinary political tactics and negotiations, are the unprecedented aspects of our current condition.288 Rigid legal rules, and the thinking that goes with them, confined to the old international model, will be relatively useless to confront this reality.

As Algeria’s civil war–chronicled in El Manara–underscores, we are now often genuinely between Scylla and Charybdis, and must employ creativity and a rigorously principled universality to navigate between–and confront–both. Even as some opponents of terror have neglected the torture side of terror/torture, some human rights advocates have downplayed the terror side and its profound threat to human rights. Some very good work has been done by some human rights organizations on the human rights impact of terrorism itself.289 Many organizations are

Afghanistan, Pakistan, India, and Kashmir, these analyses assure us that we can continue to grasp the world through our usual categories. . . . These analyses help us neither to grasp the unprecedented nature of the events unfolding since September 11, 2001 nor to appreciate the internal dynamics within the Arab-Muslim world which had given rise to them.” Id (footnote omitted). For this Article, the challenge of “thinking the new” also arises in regard to security discourses (and their purveyors) whose worldview is a sort of negative of the one Benhabib critiques. These security discourses project the image of an undifferentiated mass of “Muslim” terrorists facing off against Western liberators, the latter being empowered by their opposition to the former to use exceptional means outside of ordinary law and morality. See supra notes 163–165 and 257–258 and accompanying text. 288

Benhabib, supra note 286, at 401.

289

See Sahgal, supra note 229; Human Rights Watch, Erased in a Moment: Suicide Bombing Attacks Against Israeli Civilians (2002); International Women’s Human Rights Law Clinic, The Center for Constitutional Rights and the International

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developing their work in this area, which is positive (though most still fail to reckon with the particular challenge from jihadist movements). Still, the full development of what Gita Sahgal has called “a human rights account of terrorism”290 remains an outstanding task. On the security side, there can be no minimizing the horrors suffered by the victims of terrorism and their families whether on September 11, 2001, or on too many similar though smaller-scale dates that we may not remember. Yet to respond to inhumanity with inhumanity, to meet lawlessness with lawlessness, to oppose terror with torture, can lead nowhere that we want to go. We must find other effective means–that are in accordance with national and international law and do not but create more victims–to prevent and punish terrorist atrocities. We are legally, morally and practically bound to say an absolute no to torture, as to terror. Human Rights Watch’s statement, issued on September 12, 2001 from its office in the tallest building left standing in New York City, eloquently sums up this view: People committed to justice and law and human rights must never descend to the level of the perpetrators of such acts. . . . There are people and governments in the world who believe that in the struggle against terrorism, ends always justify means. But that is also the logic of terrorism. Whatever the response to this outrage, it must not validate that logic. Rather, it must uphold the principles that came under attack yesterday, respecting innocent life and international law. That is the way to deny the perpetrators of this crime their ultimate victory.291 Ultimately, “thinking the new” should lead intrinsically to a novel and fuller discourse on the intersection of security, terrorism and human rights: a discourse that consistently recognizes and addresses the threats of both halves of terror/torture, even as it absolutely rejects both.

VIII. EPILOGUE: RETURN TO EL MANARA At the end of the film El Manara, Asma has fled as a refugee to France. She has run from both her former friend Ramdane, who terrorized and tortured her, and her former husband Fawzi, who became a torturer on her behalf. She is a victim and survivor of both halves of terror/torture. Alone, she has given birth to a

League for Human Rights, Shadow Report on Algeria Submitted to the United Nations Human Rights Committee (1999), available at, http://www.ilhr.org/ilhr/reports/ shadow/; Amnesty International, Sri Lanka: A Climate of Fear in the East, Feb. 3, 2006, AI Index: ASA 37/001/2006. Note that this work is often done outside of the paradigm of “terrorism.” See also the discussion of Jane Doe v. Islamic Salvation Front and Anwar Haddam, a groundbreaking case in which the Center for Constitutional Rights represented nine Algerian women and an Algerian women’s organization in their ultimately unsuccessful civil suit against an Algerian fundamentalist group and one of its leaders, available at http://ccrjustice.org/ ourcases/current-cases/doe-v.-islamic-salvation-front-(fis)-andanwar-haddam. 290

Sahgal, supra note 229. at 3.

291

Human Rights Watch, Response to Attacks on the U.S., Sept. 12, 2001, available at http://hrw. org/english/docs/2001/09/13/usint2106.htm.

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daughter from her wartime rape. Finally, she receives an anonymous message. “Come back to El Manara.” Here “El Manara” is a reference both to the North African version of the celebration of the birthday of the Prophet Mohamed, deemed heretical by fundamentalists, and to the Arabic word for lighthouse, specifically the one which stands outside the Algerian coastal town of Cherchell, from which she, Fawzi, and Ramdane all originate. Thus the message is a timely exhortation to come back to light, to carefully navigate dangerous waters, to hold to one’s values even after horror. I think it is significant that we are never told for sure whether the source of the message is Fawzi or Ramdane, a repentant torturer or a repentant terrorist. Whatever the source, “come back to El Manara,” is a reminder of which we are all in need today.

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IDENTITY, CULTURE AND STORIES: EMPATHY AND THE WAR ON TERRORISM Lt. Col. William D. Casebeer†

Copyright © 2008 Minnesota Journal of Law, Science & Technology; William D. Casebeer. Originally published in Minnesota Journal of Law, Science & Technology (Spring 2008)

According to the current National Security Strategy, the global war on terror is a specific focus for national security.1 While billions have been spent prosecuting some aspects of this war (for example, by attacking state sponsors of terrorism), other aspects have been neglected. Here, I argue that grand counter-terrorism strategy would benefit from a comprehensive consideration of the stories terrorists tell. Understanding the narratives that influence the genesis, growth, maturation, and transformation of terrorist organizations will enable us to better fashion a strategy for undermining the efficacy of those narratives to deter, disrupt, and defeat terrorist groups. Such a “counter-narrative strategy” will have multiple components with layered asynchronous effects. While effective counter-stories will be difficult to coordinate and will involve multiple agents of action, their formulation is a necessary part of any comprehensive counter-terrorism effort. Indeed, a failure on our part to come to grips with the narrative dimensions of the war on terrorism, and with the larger concept of culture of which it is a part, is a weakness already exploited by groups such as Al Qaeda. We can fully expect any adaptive adversary to act quickly to fill story gaps and exploit weaknesses in our narrative to ensure continued survival. More than giving us another tool with which to confront terrorism, narrative considerations also allow us to deal better in general with the emerging security threat of violent non-state actors and armed groups. A critical portion of the system responsible for the production and replication of socially transmitted behaviors will be that which deals with narratives and stories. Justifying the need for and exploring the components of a counter-narrative strategy is a task for a book; this Article briefly sketches only the basics, discussing the psychological aspects of counter-terrorism and why stories will play a critical role in the ecosystem of violence, the essential components of a story, a typology of narratives offered by nascent terrorist groups throughout their development, a simple Aristotelian rhetorical model for evaluating story success, principles to guide the formulation of counter-narratives, and complications and provisos, as well as a consideration of the institutional implications of my position. †

PhD, LtCol (USAF), SHAPE US Survey (NATO Military Headquarters).

1

The White House, The National Security Strategy of the United States of America 1 (2006), available at http://www.whitehouse.gov/nsc/nss/2006/nss2006.pdf.

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This summary intends to provoke thought about new counter-terrorism tools. Why think that storytelling has anything to do with terrorism and counter-terrorism? Consider the ineliminable psychological aspects of terrorism: People choose to form or join organizations that use indiscriminant violence as a tactic to achieve their political objectives for multiple reasons–all of them dealing at some point with human psychology. People feel alienated from their surroundings; they are denied political opportunity by the state; the state fails to provide basic necessities; they identify with those who advocate the use of violence; they are angered by excessive state force against political opponents; their essential needs are not being met; they feel deprived relative to peer groups elsewhere. These have been offered as “root causes” of contentious politics in general and terrorism in particular. My purpose is not to defend any particular position about root causes, but merely to point out that these causes have a proximate psychological mechanism. They exert influence by affecting the human mind and brain. If stories are part and parcel of human cognition, we would also consequently expect that stories might affect how these causes play out to germinate, grow, and sustain terrorism. 1. WHAT IS IN A STORY? The lack of any widely accepted definition for “story” hampers discussion of stories and narratives. Indeed, an entire school of thought in literary criticism (“post modernism”) is predicated on the fact that no necessary and sufficient list exists of conditions a piece of text must meet to be a story. We can agree with the postmodernists that defining “story” is difficult without thinking, however, that the concept plays no useful purpose. In that sense, the concept “story” is like the concept “game.” No list of necessary and sufficient conditions exists for a game, but that does not mean the concept is useless or that no “family resemblances” exist between games that are useful to consider. A good beginning at a theory of stories comes from the nineteenth-century German writer Gustav Freytag. Freytag believed that narratives followed a general pattern: a beginning, a problem that leads to a climax, and a resolution of the problem as an ending. A coherent unified story could thus be as short as three sentences consisting of setup, climax, and resolution: “John was hungry. He went to the store and bought a sandwich. It was delicious.” This particular story is not very interesting or compelling, but it nonetheless is a coherent narrative. This “Freytag Triangle,” depicted below, captures the general structure of a story:2 Figure 1. The Freytag Triangle (1863)3 TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE 2

See generally Elias J. Macewan, Freytag’s Technicue of the Drama: An Exposition of Dramatic Composition and Art by Gustav Freytag (Benjamin Blom, Inc. 1968) (1863).

3

Barbara McManus, Freytag’s Triangle, http://www.cnr.edu/home/bmcmanus/freytag.html (last visited Mar. 17, 2008). I am indebted to Dr. McManus for allowing me to make use her Freytag Triangle graphic.

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Contemporary literary theorist Patrick Hogan amplifies the basic Freytag structure, pointing out that most plots involve an agent (normally, a hero or protagonist) striving to achieve some goal, usually despite the machinations of an antagonist, or villain. The structure includes a person, or group of persons, and a series of events driven by their attempts to achieve some objective.4 The study of mythology and consideration of most forms of storytelling, whether oral, written, traditional, or contemporary, support this familiar analysis.5 2. STORIES AND HUMAN PSYCHOLOGY Using this working “theory of story,” we can gain insight into why stories are so important for structuring human thought. First, stories often are rich in metaphors and analogies; metaphors, in turn, affect our most basic attitudes toward the world. For example, suppose we think of “Islamic fundamentalism” as a disease. A simple narrative about fundamentalist Islam might be this: “We want world communities to respect human rights. Fundamentalist Muslims disrespect some of those rights. We can prevent them from doing more harm by taking action now.” This implies a series of actions that ought to be done in reaction to fundamentalism (e.g., combat its spread, focus on this “public health problem” by inoculating people against it, consider those who try to spread it as “evil agents up to no good” or at the very least as modern day “Typhoid Marys”).6 Reasoning by metaphor and analogy, a research program explored by Mark Johnson, George Lakoff, Giles Fauconnier, and Mark Turner argues that our most complex mental tasks are usually carried out not by the “classical mechanics” of rational actor theory (where stories really have no place, or are, at least relegated to the background), but rather by a set of analogy making and metaphor mapping abilities that form the core of human cognition.7 Exploration into the “story-telling mind” is a

4

See Patrick Colm Hogan, The Mind and its Stories: Narrative Universals and Human Emotion 205–12, 221–27 (2003).

5

See Raphael Patai, The Arab Mind 43–77 (Charles Scribner’s Sons 1983) (1976) for an interesting and extremely controversial take on the role of narrative in the “Arab mind.” Recall Joseph Campbell’s analysis of the structure of most famous legends from antiquity, which involve striving on the part of a hero, a test of some kind, and a return to the point of departure with new knowledge and greater self-understanding. Joseph Campbell, The Hero with a Thousand Faces 30 (Pantheon Books 1961) (1949).

6

Again, I do not think the contagion metaphor is necessarily appropriate, even for morally objectionable forms of fundamentalist Islam. But compare some of the rhetoric from Daniel Pipes, http://www.danielpipes.org (last visited Mar. 17, 2008). For interesting responses to this rhetoric, see any of the articles from The New Crusades: Constructing the Muslim Enemy (Emran Qureshi & Michal A. Sells eds., 2003).

7

Classic works include Gilles Fauconnier & Mark Turner, The Way we Think: Conceptual Blending and the Mind’s Hidden Complexities (2002); Dedre Gentner, Keith Holyoak, & Boicho Kokinov, the Analogical mind: Perspectives from Cognitive Science (2001); George Lakoff & Mark Johnson, Metaphors We Live By (1980).

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research program that combines metaphor and analogy into an examination of the powerful grip narrative has on human cognition. Narratives can restructure our mental spaces in ways that profoundly affect our reasoning ability and, ultimately, what we make of the world. Think of the grip that the “Jihad versus McWorld”8 narrative has on Al Qaeda and how this affects the way they think about the future.9 As Mark Turner notes, “Story is a basic principle of mind. Most of our experience, our knowledge, and our thinking is organized as stories.”10 If making stories foundational to thought seems a stretch, ample evidence supports the proposition that stories influence our ability to recall events, motivate people to act, modulate our emotional reactions to events, cue certain heuristics and biases, structure our problem-solving capabilities, and ultimately perhaps even constitute our very identity.11 Stories probably play a role in developing and cuing empathy for other members of your salient group. Any of these aspects of the narrative would be fascinating and important to examine in detail. Now that we have a basic understanding of what narratives are, and have reason to believe they are influential in acts of human cognition salient to terrorist group formation, we can examine the role stories play across the life cycle of terrorist organizations. 3. NARRATIVES AND TERRORIST ORGANIZATION LIFE CYCLES Terrorist organizations have life cycles. They have a genesis point, they grow, reach maturity, and eventually transform by, among other things, dying, being co-opted by the state, or morphing into a peaceful non-state actor. As Thomas and Casebeer 8

This is the structuring metaphor of Benjamin Barber’s “clash of the world views” book, Benjamin R. Barber, Jihad vs. Mcworld: How Globalism and Tribalism are Reshaping the World (1995). See generally Samuel P. Huntington, the Clash of Civilizations and the Remaking of World Order (Touchstone 1998) (1997).

9

See Fauconnier & Turner, supra note 7, at 249–53; Mark Turner, the Literary Mind 20 (1996).

10

Turner, supra 9, at v. See generally Anthony Patton, The World as Story (2002) (unpublished manuscript, on file with author).

11

See, e.g., Mabel Chau-ping Wong, The Effects of Story Schemata on Narrative Recall, in Thinking Language, 147, 147–70 (Kitty P. Y. Wong & Christopher F. Green eds., 1995), available at http://repository.ust.hk/dspace/ bitstream/1783.1/1337/1/thinklang10.pdf; Daniel Dennett, The Self as Center of Narrative Gravity, in Self and Consciousness: Multiple Perspectives 103–15 (Frank S. Kessel et al., eds., 1992), available at http://ase.tufts.edu/ cogstud/papers/ selfctr.htm; Arthur C. Graesser & Glenn V. Nakamura, The Impact of a Schema on Comprehension and Memory, in The Psychology of Learning and Motivation 59 (H. Bower ed. 1982); Alicia Juarrero, Dynamics in Action 217–44 (1999); Troy S. Thomas & William D. Casebeer, Usaf Institute for Nat’l Security Studies, Occasional Paper No. 52, Violent Systems: Defeating Terrorists, Insurgents, and other Non-State Adversaries 69, 75 (2004), available at http://www.usafa.af.mil/df/inss/occasion.cfm [hereinafter Violent Systems]; Troy S. Thomas, Stephen D. Kiser & William D. Casebeer, Warlords Rising: Confronting Violent Nonstate Actors 190–91 (2005).

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have pointed out, different organizational structures develop during this life cycle, some more important than others depending on the organization’s degree of development.12 During maturity, terrorist organizations will develop survival as a goal, and this organizational consideration can help us understand why they take some of the actions they do.13 The life cycle concept follows naturally from thinking of the conditions that give rise to terrorism as an environment conducive to the formation of violent non-state actors (VNSA). These environments are typified by failures in governance, pre-existing identity cleavages, resource scarcity and deprivation, and lack of political opportunity. When these “push” factors (i.e., active causes that spur the formation of a violent non-state actor) produce a potential VNSA (usually at the behest of a foundational “identity entrepreneur”), the stage is set for the growth and maturation of a nascent organization. At maturity, a VNSA will have developed a suite of functions it must implement if it is to maintain its existence as an organization. These processes include support (e.g., get resources, cultivate stakeholder relations), maintenance (e.g., sanction defectors from the organization, reward loyal service), cognition (e.g., plan, learn and control) and conversion (e.g., produce terrorist acts, provide social services to the community). A mature organization that is functioning well has a smooth fit between these processes (called “congruence”) and also has reserves in case the inputs from the environment turn sour or can no longer support the organization (these reserves constitute what is called “negative entropy,” a term of art that refers to stores of organized inputs such as money or ready recruits that can help insulate systems against environmental change or disruption of critical needs). The following schematic summarizes this understanding: Figure 2. Sub-System Functions in a Terrorist Organization.14 TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE Note the multiple critical roles narratives play throughout the life cycle. During genesis, stories (1) provide incentives for recruitment, particularly by providing justice frames (simple narratives which frame discontent using terms of justice, such as insisting that territory was wrongly taken by others from you or your ingroup in the past) that serve to mobilize discontent, (2) help justify the need for an organization to the community in which it will be embedded, and to first-round

12

See Troy S. Thomas & William D. Casebeer, Deterring Violent Non- State Actors in the New Millenium [sic], Strategic Insights, Dec. 2002, at 1–2, http://www.ccc.nps.navy.mil/si/ dec02/terrorism2.pdf; Troy S. Thomas & William D. Casebeer, Violent Non-State Actors: Countering Dynamic Systems, Strategic Insights, Mar. 2004, at 2–4, http://www.ccc.nps.navy. mil/si/2004/ mar/casebeerMar04.pdf; see also Violent Systems, supra note 11, at 47–51.

13

Martha Crenshaw, Theories of Terrorism: Instrumental and Organizational Approaches, in Inside Terrorist Organizations 13, 19–26 (David C. Rapoport ed., 1988).

14

Graphic adopted from Troy S. Thomas.

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stakeholders (those people and organizations who, at least initially, provide critical support to the organization), (3) reinforce pre-existing identities friendly to the nascent organization, (4) create necessary identities where none exist, (5) set the stage for further growth of the organization, (6) solidify founding members into leadership roles, and (7) define the possible space of actions as the organization matures. During growth, narratives do all of the above and also (1) reinforce role-specific obligations to ensure group members continue to accomplish their functions, (2) provide “firewalls” against attempts to discredit foundational myths, (3) articulate ideological niches for the organization, and (4) make salient to organization members the environmental conditions conducive to organizational growth. During maturity, stories (1) link into the command and control system of the organization for tweaking and updating, (2) serve as insulation against environmental change, (3) actively support operations by motivating organizational members and channeling organizational thought down pre-set canals useful for the group, (4) are used as “top cover” to allow the organization to adapt, change goals, or otherwise modify structure and function to ensure continued survival. During transformation, narratives (1) smooth the transition to new organizational forms, (2) help ease the organization into a different set of stakeholder relationships, (3) provide the foundation for the revivified identities which will be used in whatever new form the organization adopts, and (4) serve to demobilize those portions of the organization that served their purpose or are no longer needed.15 4. A NARRATIVE TYPOLOGY While the diversity of purposes served by stories in terrorist organizations makes a typology of stories difficult, stories can still be grouped into useful camps. For instance, foundational myths can be transactional or transcendental. Transactional, or pragmatic, foundational myths emphasize transactional or instrumental considerations: if you join our terrorist organization, our use of violence will enable you to achieve certain materially realizable individual and collective goals. For example, together we will make money, together we will found a new state, or together we will change an unjust practice. Transcendental foundational myths emphasize otherworldly goals that are implausible to expect to see realized or that reject worldly manifestation altogether. For example, together we will find paradise in God’s bosom, together we will convert every soul in the world to Scientology. Both can be used in concert. Al Qaeda’s foundational myth involves elements of both: transactional pragmatic goals and transcendental religious goals. What is the basic structure of some of these stories and narratives? In his paper Terror’s Mask: Insurgency Within Islam, political scientist Michael Vlahos 15

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identifies four elements of Al Qaeda-style narrative tropes: (1) a heroic journey and a mythic figure, (2) the rhythm of history captured as epic struggle and story, (3) the commanded charge of renewal, and (4) history revealed and enjoined through mystic literary form.16 According to Vlahos, the foundational mythic figure for Islam is Muhammad. Bin Laden taps into this theme when he portrays himself as following in the footsteps of Muhammad. He too is making a heroic journey, struggling against great odds, in a way that makes him almost as mythic in stature, and hence all the posters and stickers praising him in places like Pakistan or Afghanistan. Part of the reason why he is mythic is because of the second element: bin Laden argues that he is part of a grand struggle against Western imperialism and decadence. His actions are part of a story that is linked to the very fabric of Muslim history (and given the fact that this history was in fact laced with Orientialism and colonialism, it is no surprise that charges of neo-Orientialism and neo-colonialism stick so easily). The third aspect of the story is important: only by struggling against these dark forces can one be renewed. To fail to struggle is to fail to play your part in a narrative that ends with Islam triumphing over the infidel West. Finally, owing to the fourth element, the story contains built in “insulation” from temporary tactical successes on the part of occupying forces: the mystical element of the narrative, especially its otherworldly component involving rewards in the afterlife’s paradise, means that temporal success will not necessarily defuse the logic of the story. Resistance can and should continue even if the security situation improves in the short term, although brute facts about human psychology may undermine the effectiveness of that story in the long run in the face of improvements in the procurement of basic needs. Closely related to Vlahos’s ideas about the essential elements of the Islamic fundamentalist narrative is sociologist Mark Juergensmeyer’s theory of “cosmic war.”17 Juergensmeyer suggests that religious tropes are more likely to play a narrative role if the confrontation between two groups can be characterized as a cosmic struggle or battle. This is most likely in the following circumstances: (1) The struggle is perceived as a defense of basic identity and dignity. (2) Losing the struggle would be unthinkable. (3) If the struggle is blocked and cannot be won in real time or in real terms.18

16

Michael Vlahos, Joint Warfare Analysis Dep’t, Terror’s Mask: Insurgency within Islam 8 (2002), available at http://www.jhuapl.edu/POW/library/Terror_Islamsm.pdf. Again, note the similarity to parts of Campbell’s corpus. See generally Campbell, supra note 5.

17

Critically, this is one of the characterizations of Islam that Qureshi and Sells object to in the first article in their edited collection. Qureshi & Sells, Introduction: Constructing the Muslim Enemy, in The New Crusades: Constructing the Muslim Enemy, supra note 6, at 4.

18

See Mark Juergensmeyer, Terror in the Mind of God: The Global Rise of Religious Violence 164–65 (3d ed. 2003).

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To amplify, in cases where the struggle is over extremely basic questions of identity and where basic human rights are at stake; if losing the struggle seems Armageddonlike (e.g., you would tell a very bad story if your resistance failed); and if the struggle is perceived as being hopeless in concrete terms (e.g., it is impossible to see how we could beat the occupiers using traditional “force-on-force” confrontations), then it is very likely that the struggle can more easily be framed in religious and metaphysical terms as a cosmic struggle, in which case recruitment into organizations becomes easier for certain target populations (e.g., those predisposed to accept transcendental foundational myths). Certainly, multiple narrative structures are at play in terrorism, but hopefully this brief survey has shown that categorizing them into different types can help us better understand how to render inert the role they play in terrorist organizational growth. How do we go about countering these stories? 5. COUNTER-NARRATIVE STRATEGIES To address this practical question, we will first discuss counter-narrative strategies in generic terms, and then offer guidance that is more specific. Important generic principles for counter-narrative strategy include competing myth creation, foundational myth deconstruction, alternative exemplar creation, metaphor shifts, identity gerrymandering, and structural disruption. Myth creation involves the weaving together of the narrative elements of a story with facts about past and present situations to create an emotionally compelling background that very often directly influences the susceptibility of a population to manipulation by “myth mongers.” The fanatical devotion shown by al Qaeda operatives stems in large part from the success Osama bin Laden and others have had in fashioning a coherent and appealing foundational myth, not from any rational deliberative process. The events of September 11 can be thought of as the punch line of a chapter in an epic that sets “the warriors of God” against an “infidel West.” This myth did not propagate itself via rational actor channels, but instead was indoctrinated through a multipronged effort on the part of fundamentalist strains of Islam (such as Saudi Arabia’s Wahhabis).19 Successful myth creation may very well leverage heuristics and biases cognitive scientists tell us are present in human cognition; they certainly take advantage of the availability heuristic, as this heuristic probably undergirds human propensity to form stereotypes.20

19

Troy S. Thomas et al., Warlords Rising: Confronting Violent Non-State Actors 139–40 (2005).

20

Amos Tversky & Daniel Kahneman, Availability: A Heuristic for Judging Frequency and Probability, 5 Cognitive Psychol. 207, 207 (1973); Denise R. Beike & Steven J. Sherman, Social Inference: Inductions, Seductions, and Analogies, in 1 Handbook of Social Cognition 209, 214 (Robert S. Wyer, Jr. & Thomas K Srull eds., 1994).

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Myth creation usually involves the effective use of narrative. As we formulate an “affective strategy,” we should keep the elements of a narrative in mind, for it is only by disrupting the story that you can interfere with myth creation. At the very least, good stories need protagonists, antagonists, tests for the protagonist, a promise of redemption, and a supporting cast of characters. Disrupting al Qaeda’s foundational myth may involve undermining the belief that we are the antagonists in the narrative bin Laden is constructing. Therefore, either we can undermine the foundational myth being used to drive VNSA development, or we can construct an alternative myth that is a “better story” than the one being offered by the myth mongers. Examples of myth creation in fiction include the stories told by the rulers of Plato’s ideal city (the Republic) that were designed to motivate members of the different classes21 and the foundational myths that supported the violent actions of both the Hutus and the Tutsis during the Rwandan massacres of 1994.22 For a more benign example, consider the conscious mythmaking that has taken place in Israel, such as the “transformation of the 1920 defense of a new Jewish settlement in Tel Hai into a national myth,” turning a defeat into a symbol of national revival.23 Closely related to myth making is the strategy of creating alternative exemplars. Members of an at-risk population often become at risk because of a failure to identify with a member of a non-violent non-state actor or a member of the government or occupying power. VNSA “identity entrepreneurs” can exploit existing ethnic, racial, economic, or social political differences by elevating someone who shares the same characteristics as the exploited class to a position of prestige or power. Members of the at-risk group then come to identify with that exemplar and may feel compelled to adopt the violent strategies advocated by the exemplar’s VNSA. Creating alternative exemplars that share the salient characteristics of the exemplar but who do not advocate violence or who can show the way towards a non-violent solution to the issues that are fueling VNSA emergence help interrupt the VNSA life cycle. Alternative exemplar creation may involve symbolic acts on

21

See Plato, Republic, at bk. 4 (Robin Waterfield trans., 1993).

22

For more about these myths, see Ryszard Kapuscinski, the Shadow of the Sun: My African Life 165–82 (2001). Owing to the mostly fabricated early history of the region, the Tutsis were viewed as being pastoral patrons (i.e., rulers) who preside over their clients (i.e., slaves), the Hutu agriculturalists. Under colonial rule by both the Germans and the Belgians, this foundational myth was reinforced, with separate identity cards being issued for both peoples. The Belgians even went so far as to argue that the Tutsi were, racially speaking, more closely related to white people, and were hence a superior race, putting in place a quite different but nonetheless related foundational myth. Needless to say, these myths played a large part in the violence that erupted in 1994. See Chris Lowe, Africa Action, Talking About “Tribe”: Moving from Stereotypes to Analysis 2 (2008), available at http://www.africaaction. org/bp/documents/TalkingaboutTribeFeb2008Update_001.pdf.

23

Yael Zerubavel, Recovered Roots: Collective Memory and the Making of Israeli National Tradition, at back cover (1995).

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the part of the government that tap those elements of “hot” emotion-laden cognition and heuristics and biases mentioned earlier. An example of the alternative exemplar creation strategy in action is the praise and warm endorsement heaped upon John Garang, the leader of the Sudanese guerrilla faction of the Sudanese People’s Liberation Army (SPLA), during his visit to Washington just before Christmas of 1995. Such endorsement was critical for the recruitment and logistics boost the SPLA received that enabled Garang’s forces to recapture crucial cities in southern Sudan soon thereafter.24 In this case, we encouraged the growth of a VNSA by cultivating an exemplar saliently different from the leaders of the Sudanese regime. An alternate affective strategy includes fomenting a metaphor shift that affects the way in which at-risk populations or members of a VNSA frame their actions. Given the power of metaphor to shape human thought, it should come as no surprise that the shifting metaphors people use to frame worldviews and guide decisions could cause a change in their reasoning. For example, to convince someone that “cluster of cells” is a more appropriate metaphor for an unborn embryo than “young human” may very well change their stand on the issue of abortion.25 Shifting metaphors requires making connections between the way people presently view a situation or issue and the way you would like them to frame the situation or issue.26 The common refrain, “one man’s terrorist is another man’s freedom fighter,” is a simple example of metaphor shift; if you can make the charge of “you are not a freedom fighter,” or “you are not actually crusading on behalf of true Muslims,” stick, you go a long way toward defusing certain narratives.27 Even the patriotic revolutionaries participating in the Boston Tea Party were viewed as criminals and dangerous insurrectionists by many of their fellow colonialists. Manipulation of existing identities (e.g., national, tribal, ethnic) is yet another affective strategy.28 This does not necessarily require creating new foundational myths or alternate exemplars; instead, skillful use of existing cleavages can decrease a VNSA’s stock of negative entropy. This is the “flip side” of the identity entrepreneur’s efforts that are 24

Bill Berkeley, the Graves are not Yet Full: Race, Tribe and Power in the Heart of Africa 224–25 (2001).

25

See Paul Churchland, Toward a Cognitive Neurobiology of the Moral Virtues, in The Foundations of Cognitive Science 77, 85–86 ( João Branquinho ed., 2001); William D. Casebeer, Moral Cognition and its Neural Constituents, 4 Nature Revs. Neuroscience 840, 840–46 (2003); William D. Casebeer, Natural Ethical Facts: Evolution, Connectionism, and Moral Cognition 101–25 (2003).

26

See Fauconnier & Turner, supra note 7, at 337–38 (discussing how to enable “frame shifts”).

27

Consider, for instance, the conceptual shift that occurs in members of the Israeli army when they start thinking about Palestinian teenagers as being an enemy rather than a peer. See Eyal Ben-Ari, Mastering Soldiers Conflict, Emotions, and the Enemy in an Israeli Military Unit 76–78 (1998).

28

For an excellent discussion of this process, see Daniel Byman, Keeping the Peace: Lasting Solutions to Ethnic Conflicts 100–24 (2002).

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often part of the genesis and growth of VNSA. For example, the Masaai warriors in Tanzania have skillfully manipulated existing identity cleavages to elevate the warrior aspect of Masaai culture over other aspects such as pastoral herder or Tanzanian citizen. This involved the creation of camps for young Masaai males, where they learn compelling stories, foundational myths about ancient Masaai warriors, and hunting and combat skills. The Tanzanian government, if it wished, could exploit other aspects of Masaai history, including the fact that their lineage includes an important pastoral element, to de-emphasize the violent aspects of Masaai culture to ensure they remain a peaceful non-state actor.29 For an Islamic example, consider Bassam Tibi’s position that moderate members of the Islamic faith (especially Sufis) could best confront malignant forms of fundamentalism by emphasizing strands in Islamic narrative history that highlight very different exemplars. As he says: I am a Sufi, but in my mind I subscribe to aql/reason, and in this I follow the Islamic rationalism of Ibn Rushd/Averroës. Moreover, I read Islamic scripture, as any other, in the light of history, a practice I learned from the work of the great Islamic philosopher of history Ibn Khaldun. The Islamic source most pertinent to [my] intellectual framework . . . is the ideal of al-madina al-fadila/the perfect state, as outlined in the great thought of the Islamic political philosopher al-Farabi. Al-Farabi’s “perfect state” has a rational, that is, secular order and is best administered by a reason-oriented philosopher. . . . A combination of these Islamic sources, the Sufi love of Ibn ‘Arabi, the reason-based orientation of Ibn Rushd, the historicizing thought of Ibn Khaldun, and al-Farabi’s secular concept of order, seem to me the best combination of cornerstones for an Islamic enlightenment.30

To get yet more concrete, consider the elements of typical narratives offered by Islamic insurgents. For Vlahos, those included a heroic journey and mythic figure, an epic historical struggle, a charge of renewal, and a mystic interpretation of history.31 Any action32 we can take that would decrease the probability that bin Laden could be interpreted as a hero, that diminishes the likelihood that we could be cast as the antagonist in a historical struggle, that makes it seem less likely “resisting” us would lead to Islamic renewal, or that diminishes bin Laden’s ability to sell a mythical interpretation of the struggle, would be effective at defusing the power of the story. For example, part of the reason why Brigadier General David Petraeus’ 101st Airborne has been so successful in northern Iraq has to do with the

29

Interview with Masaai nationals in Tanzania ( June 2002). For more background on Tanzania’s history, as well as detail on the Rwandan situation, see Civil Wars in Africa: Roots and Resolution 238–43, 246–48 (Tanzania), 53–86 (Rwanda) (Taisier Ali & Robert Matthews eds., 1999).

30

Bassam Tibi, The Challenge of Fundamentalism, at xv (1998).

31

Vlahos, supra note 16, at 8.

32

Any action includes a speech act. Merely saying things differently might be enough in many cases.

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careful manner in which they have carried out police raids, going so far as to rebuild house doors busted down even when those doors were on houses that did in fact contain insurgent weapons. This has done much to disarm the justice frames at play in the story-sphere there.33 Or consider Juergensmeyer’s list:34 Is the struggle over basic identity? Is losing the struggle unthinkable? Can the struggle not be won in real terms? Are there actions we can take or speech acts we can engage in, that lessen the threat our presence poses to Islamic identity? Can we assure the populations of a country or region we are occupying that successful occupation would not imply the destruction of cherished values? Can we engage in “cultural confidence building measures” that assure target populations they can achieve many of their goals even within the context of occupation or reconstruction? These actions may be as simple as avoiding certain terms in our speech (e.g., “crusade”), while other actions required to see a story through may be quite complicated. In many cases the tactical success achieved by taking action we know may feed a malignant narrative may nonetheless justify them. Even then, we should be aware of the impact our actions are having on the “telling of stories” in the backstreets and communities of at-risk populations so that we can, where possible, mitigate any negative upshot. 6. A SIMPLE EVALUATIVE MECHANISM: ARISTOTLE’S RHETORICAL MODEL In practice, effective counter-narrative strategy requires understanding the components and content of the story being told to predict how they influence the action of a target audience. In other words, we need a sophisticated understanding of strategic rhetoric. This is difficult to come by. Nonetheless, even well-worn and simple models of this process, such as that offered by the ancient Greek philosopher Aristotle in his Rhetoric, can be very useful for structuring our thinking. Aristotle would have us evaluate three components of a narrative relative to a target audience: (1) What is the ethos of the speaker or deliverer? (2) What is the logos of the message being delivered? (3) Does the message contain appropriate appeals to pathos?35 Consideration of ethos would emphasize the need to establish credible channels of communication, conveyed by actors who have the character and reputation required to ensure receipt and belief of the message. “You have bad ethos” is merely another way of saying “You will not be believed by the target audience because they do not think you are believable.” Consideration of logos involves the rational elements of the narrative: Is it logical? Is it consistent enough to be believed? Does it contain (from the target’s perspective) non-sequiturs and forms

33

Phone interview with Brigadier Gen. David Petraeus, 101st Airborne Div. (2005).

34

Juergensmeyer, supra note 18, at 164–66.

35

Aristotle, Rhetoric, in The Rhetoric and the Poetics of Aristotle 24–25 § 1356a (W. Rhys Roberts & Ingram Bywater trans., 1954).

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of reasoning not normally used? Finally, pathos deals with the emotional content of the story. Does the story cue appropriate affective and emotive systems in the human brain? Does it appeal to emotion in a way that engages the whole person and that increases the chances the story will actually motivate action? Thomas Coakley summarizes the Aristotelian model in his paper on the Peruvian counter-terrorism experience: Ethos: these are appeals the speaker makes to the audience to establish credibility. Essentially, ethos is what a speaker uses–implicitly or explicitly–to ensure that the audience can trust him or her. An example in advertising is an athlete endorsing an athletic product. In war, examples include a history of adherence to LOAC [Laws of Armed Conflict] and an assertiveness of willpower. Pathos: these are appeals the speaker makes to the audience’s emotions. An example of this would be an advertisement for tires that emphasizes safety by portraying an infant cradled within the circle of the tire. In war, pathos might be displayed by showing the “average” guy on the adversary’s side that the US position is better. Logos: these are appeals to facts. More doctors recommend toothpaste X than any other brand. In war, there is no greater logic than firepower, but as insurgencies demonstrated throughout the twentieth century, firepower (logos) alone will not win wars, and will win very few arguments.36

Some of these Aristotelian considerations will be affected by structural elements of the story37; others will be affected by content.38 Ascertaining how these issues interact to ensure success in counter-narrative efforts is a complex process. In general, though, consideration of these ideas leads 36

William D. Casebeer, The Stories Markets Tell: Affordances for Ethical Behavior in Free Exchange, in Moral Markets: The Critical Role of Values in the Economy 1, 8 (Paul J. Zak ed., 2008) (quoting Thomas Coakley, Inst. for Nat’l Security Stud. The Argument Against Terror: The Peruvian Experience, Globalization, and US Policy (2003)), available at http://press.princeton.edu/chapters/s8657.html.

37

Structural elements include whether the story is coherent, simple enough to be processed, can it be remembered, is it easy to transmit, and if believed, will it motivate appropriate action? Indeed, some structure and content of stories may cause narratives to act as primary reinforcers—that is, just like food, drugs, or sex. A fascinating neurobiological exploration of this process of successful “cultural messaging” is being carried out by the author and neuroscientists such as Read Montague, head of the Baylor College of Medicine’s Human Neuroimaging Laboratory. Innovative new techniques such as “hyperscanning” allow social cognition to be studied in vitro at the neural level using functional Magnetic Resonance Imaging. See generally Baylor College of Medicine, Human Neuroimaging Laboratory, http.www.hnl.bcm. tmc.edu/ hyperScan.html (last visited May 19, 2008).

38

Content elements include: does the narrative resonate with target audiences, is the protagonist of the story a member of the target audience’s in-group, and is the antagonist of the story a member of a hated out-group? It may very well be that some aspects of narrative are evaluated in exactly the same way that theories in the sciences are evaluated: according to their simplicity, output power, explanatory power, justificatory power, coherence, breadth, clarity and psychological plausibility.

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to this non-exhaustive list of basic strategic principles for the formulation and application of counter-narrative strategy, some of which we have already briefly discussed. 7. NARRATIVE “STRATEGIC PRINCIPLES,” AND SOME COMPLICATIONS Effective counter-narrative strategy will be guided by the following strategic principles: (1) Target audience characteristics are critical. Formulating a narrative without understanding the culture of the population you wish to influence is at best a recipe for ineffectiveness and at worst can backfire. (2) Darwinian competitiveness counts. Stories will be more likely to be received and understood if they are fit for the environment in which they are expected to flourish. Some basic considerations include whether or not stories take advantage of heuristics and biases (e.g., since memorable events are easier for a target audience to recall, memorable events should form the skeleton of a story). (3) Aristotle is better than nothing. Considerations of ethos, logos, and pathos (E/L/P) are simplistic. But they are better than not bothering to evaluate the storyline at all. Relative to a target population, an E/L/P analysis can provide a baseline for predicting and controlling narrative flow over the course of a conflict. (4) There are two important story sets: the ones our adversary is telling, and the one being told implicitly and explicitly by us. Terrorist organizations have instrumental incentives to “get out the story” that form a necessary part of their continued survival and enables their goal achievement. We need to consider not only whether our story is being told well, but also how both our actions and storytelling affect the plausibility of the stories they are introducing into the environment. To do this well requires getting inside the “narrative OODA-loop” of our adversary (where OODA is an acronym which stands for Observe-Orient-Decide-Act, a description of the basic decision-cycle for organizations first postulated by US Air Force Colonel John Boyd). (5) Tactical success may require overriding strategic story considerations. While grand counter-terrorism strategy will require counter-narrative considerations for success, it may very well be that strategic story considerations will be overridden in many circumstances by demands for tactical or short-term success. Understanding this tension will enable us to build stories that will be only minimally affected by such reversals. (6) Stories with firewalls are better than stories without defenses. Narratives need to come equipped with an immune system. Some stories are more resilient than others to changes in the environment; the best of stories make sense–to 270

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use Karl Popper’s language,39 it will fail to be falsified. We should think about how to firewall stories to prevent their destruction or cooption. (7) Adaptability and flexibility are important. The story environment is fluid, and stories should be too. While it would undermine our ethos to change stories often, our logos may demand that we do so at times. Anticipating this, we should create grand narratives that have some built-in adaptability and flexibility. Protagonists and antagonists change. Basic plot lines shift. Culmination points move. Critical identities are fluid. This environmental uncertainty makes adaptability in stories even more important. Application of these strategic principles for story formulation is difficult. At any given time, there are myriad target audiences. We can expect their reactions to be shaped dynamically. For example, a grand narrative that was perfectly plausible before Abu Ghraib may be rendered perfectly inert afterwards. A few critical slips by key public representatives may entrench an antagonistic narrative, leaving no choice but to abandon a counter-narrative put in place to combat it. Understanding the temporal mechanics and dynamics of story flow will be an ad hoc business. Recognizing this fact, however, and considering what impact this has for our plans, programs, and policies is far superior to the alternative of letting our adversaries occupy the narrative high ground. 8. INSTITUTIONAL IMPLICATIONS At the least, doing the things discussed above requires an awareness of the characteristics of target audiences, knowledge of the narratives and stories at play in their culture, a model of how actions interact with the characteristics of those narratives to produce certain results (even the relatively mundane Aristotelian model just discussed is a fine place to start), and a willingness to coordinate actions intergovernmentally to present a unified narrative front to the target audience. The organizations and processes needed to do this successfully are not (alas) in place. Cultural intelligence is only now getting off the ground. Awareness of the cultural and societal impact of occupation is being enhanced systematically relatively late in the game. Where in the government’s national security apparatus “narrative unification” and “story consistency checks” would take place is not clear.40 Given extant concerns about the misuse of psychological operations, and the public relations disaster of previous efforts in this direction,41 this lack of institutional 39

Karl R. Popper, The Logic of Scientific Discovery 40–42 (Basic Books, Inc. 1961) (1959); Karl R. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 256 (1962).

40

Presumably at high levels such as within the National Security Council, or high-level working groups within the State Department.

41

The Pentagon considered an “Office of Strategic Influence” but hastily shelved the idea. Eric Schmitt and James Dao, A ‘Damaged’ Information Office Is Declared Closed by Rumsfeld, N.Y. Times, Feb. 27, 2002, at A1.

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inertia is perhaps understandable. Even so, we are slowly coming to realize the importance of counter-narrative strategies, as the September 2004 Defense Science Board report on strategic communications made clear with its strong final recommendation: The Task Force recommends that the Under Secretary of Defense for Policy and the Joint Chiefs of Staff ensure that all military plans and operations have appropriate strategic communication components, ensure collaboration with the Department of State’s diplomatic missions and with theater security cooperation plans; and extend U.S. STRATCOM’s and U.S. SOCOM’s Information Operations responsibilities to include DoD support for public diplomacy. The Department should triple current resources (personnel & funding) available to combatant commanders for DoD support to public diplomacy and reallocate Information Operations funding within U.S. STRATCOM for expanded support for strategic communication programs.42

9. THE IMPORTANCE OF NARRATIVES Having in place effective counter-narrative strategies will not be a panacea. Nonetheless, if military force is to play the appropriate role in our national security strategy and the “Global War on Terror,” we need a more comprehensive understanding of how a failure to tell good stories can lead to an increased risk of insurgencies, violent social movements, and terrorist action. While this Article has been far too brief to provide a comprehensive understanding of the relationship between stories, identity, and violent action, I hope it has at least made plausible the case that we need to think much more carefully about the relationship between this rhetorical Clausewitzian trinity43 and state power. A grand counter-terrorism strategy that actually produces the results we desire rides on such a subtle psychologically informed understanding of narratives and terror. Narratives also play a critical role in several other cultural phenomena relevant to the study of terrorism and insurgency, including cultivation of shared group identities and surrogate consciousness. This exploration is the subject for the final section of this Article.

42

Defense Sci. Bd., Report of the Defense Science Board Task Force on Strategic Communication 9 (2004), available at http://www.acq.osd.mil/dsb/reports/2004-09-Strategic_ Communication.pdf. The report is well worth reading in its entirety.

43

Carl Von Clausewitz, on War 89 (Michael Howard & Peter Paret eds. & trans., 1984) (1976) (“As a total phenomenon its dominant tendencies always make war a paradoxical trinity—composed of primordial violence, hatred, and enmity, which are to be regarded as a blind natural force; of the play of chance and probability with which the creative spirit is free to roam; and of its element of subordination, as an instrument of policy, which makes it subject to reason alone.”).

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10. FRAMING AND ORGANIZATIONAL CHANGE There is little doubt that framing processes–those processes responsible for influencing how an actor views the world, such as the narratives discussed earlier–play an important role in creating and sustaining social mobilization processes in the Middle East. More controversially, framing processes are also critical for sustaining organizational efficiency. When movements spawn formal organizations, those organizations will take advantage of some of the same processes used by mobilization leaders so as to shore up support from actors interested in seeing the organization achieve its goals. Moreover, when organizations find themselves in turbulent and problematic environments, they may shift their framing processes so as to cultivate new stakeholder relationships and broaden the base of those willing to provide material and moral support. Often, this will involve expanding the goals of the organization, providing existing members reason to support these new goals by developing a sense of shared responsibility for the fate of those affected by these new objectives–in short, by cultivating “surrogate consciousness” in their traditional membership. Such, I argue, has been the fate of Lebanon’s Hizballah. Here I argue for a series of linked hypotheses, all germane to the concept of strategically important culture. First, I distinguish the concept of surrogate consciousness from related psychological processes involved in framing. Surrogate consciousness arises from the conjunction of empathetic responses with a “thin” sense of shared identity (especially identities that arise from a recognition of common fate) even in the face of obvious and self-acknowledged out-group distinctions. This is different from the activation of either empathy or identity alone, and may deserve to be recognized as a significant category (akin to oppositional consciousness) in the mobilization literature, as it can play a critical role in broadening an organization’s base of support. Development of surrogate consciousness is enhanced by consideration of the narrative elements of the framing process. Second, by analyzing official documents of Hizballah and the rhetoric of Hizballah leaders such as Sheikh Hussein Nasrallah and Grand Ayatollah Muhammad Hussein Fadlallah–focusing in particular on how this verbiage has changed over time–the section provides evidence that the Party of God has broadened its goals; this in turn has led to narrative efforts designed to boost surrogate consciousness in the Shi’a of Lebanon for the plight of Palestinians in the occupied territories. Third, and only very briefly, I argue that whether this is a positive development remains an open question; on the one hand, these developments increase the chances Hizballah will continue to develop a bona fide constituency and moderate its goals so they become irredentist rather than millenarian, making it all the more likely those goals can be achieved by peaceful political means. This may have the pleasant upshot of marginalizing the militant wing of Hizballah. On the other hand, if Palestinians are unable to reach accommodation with Israel through non-violent means (such as the peace process), the surrogate consciousness could retrench Hizballah’s militant elements, which would

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not be a favorable development. This is an ambitious set of hypotheses to develop and defend in part of one article. This Article’s aim is to provide enough explanation and evidence to at least make them plausible so as to motivate a more rigorous research agenda. 11. SURROGATE CONSCIOUSNESS In general, mobilization–be it for peaceful or violent collective action–is thought to happen at the intersections of political opportunities, mobilizing structures, and framing processes.44 There must be some form of political opportunity (or lack thereof )–for instance, a state crackdown on a spontaneous protest might open the political door for a full-fledged movement. Mobilizing structures provide resources for movements to grow and expand–for example, pre-existing social networks may serve as funnels for financial support for a nascent movement. Finally, framing processes can (among many other things) motivate individuals to join nascent movements, groups and organizations, and may reinforce certain identities so as to make mobilization easier.45 Critical to the importance of frames is the notion that they can resonate to greater or lesser degrees with target audiences.46 Generally, social psychological facts (such as the development of group identity or awareness of one’s self as a part of a larger collective) are most likely to intervene upon the mobilization process via framing effects. Consider the idea of oppositional consciousness.47 Oppositional consciousness is one process whereby members of a persecuted or oppressed group become aware of themselves as group members for the purposes of spurring action. Oppositional consciousness–“an empowering mental state that prepares members of an oppressed group to act to undermine, reform or overthrow a system of human domination”–involves, according to Jane Mansbridge, “identifying with members of a subordinate group, identifying injustices done to that group, opposing these injustices, and seeing the group 44

See, e.g., Comparative Perspectives on Social Movements: Political Opportunities, Mobilizing Structures, and Cultural Framings, (Doug McAdam et al. eds., 1996); Doug McAdam et al., Toward an Integrated Perspective on Social Movements and Revolution, in Comparative Politics: Rationality, Culture and Structure 142 (Mark Irving Lichback & Alan S. Zuckerman eds., 1997).

45

“Framing” probably really serves as a placeholder for all nonrational psychological processes involved in mobilization (the sociology and political science literature tends to call these “subjective processes,” though this is a bit limiting as the psychological processes undergirding these phenomena need have no experiential or phenomenological component, and are in many cases richly social). I suspect that there are more psychological processes worthy of consideration than those identified in the extant literature.

46

See generally D. A. Snow & R. Benford, Ideology, Frame Resonance, and Participant Mobilization, in 1 From Structure to Action 197, 197–217 (B. Klandermans, H. Kriesi & S. Tarrow eds., 1988).

47

See Aldon Morris & Naomi Braine, Social Movements and Oppositional Consciousness, in Oppositional Consciousness: The Subjective Roots of Social Protest 20 ( J. Mansbridge & A. Morris eds., 2001).

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as having a shared interest in ending or diminishing those injustices.”48 Framing will affect all these facets of oppositional consciousness. Justice frames, for example, will make salient to a group the injustices being done to them, while motivational frames will increase the likelihood a member of the affected group will take action to end the injustice. Surrogate consciousness is similar to, but separate from, oppositional consciousness.49 Like oppositional consciousness, surrogate consciousness will be affected by framing. It will involve some of the same processes as oppositional consciousness, and in many regards functions just as it does–to prepare members of a group for action. But unlike oppositional consciousness, surrogate consciousness involves action by members of an out-group on behalf of another group that is being persecuted. Oppositional consciousness involves the development of empathy, but such empathy is shared only with in-group members (indeed, this is what makes it oppositional rather than merely generally empathetic). In the case of surrogate consciousness, however, empathy is developed for another group even when one recognizes that one is not in fact a member of that group. To summarize, according to our nascent theory, surrogate consciousness arises from the conjunction of empathetic responses with a very shallow sense of shared identity (especially identities that arise from recognition of common fate, which is probably the identity generating mechanism which generates the thinnest, most violable sense of identity50 whilst nonetheless recognizing the existence of obvious 48

Jane Mansbridge, The Making of Oppositional Consciousness, in Oppositional Consciousness: The Subjective Roots of Social Protest 4–5 ( J. Mansbridge & A. Morris eds., 2001).

49

In order to confirm that surrogate consciousness was not already a commonly used concept in the mobilization literature, I skimmed multiple seminal articles from the framing and identity bodies of work. Also, a Google search turned up no academic uses of the phrase, nor did a JSTOR search turn up any salient references. My apologies to the original discoverer if the phrase turns out to exist in the prior art.

50

See generally Leonie Huddy, Group Identity and Political Cohesion, in Oxford Handbook of Political Psychology (David Sears et al. eds., 2003) (reviewing major theories of the development of group identity). On the whole, social context is critically important for racial and ethnic acculturation vis-à-vis group identity. This is no surprise, as there is an entire theory (called “social learning theory”) dedicated to the role that social and group interaction plays in the development of attitudes and skills. Social learning theory was most comprehensively articulated by Albert Bandura in the 1960s and 1970s. Bandura placed special emphasis on how new behavior is acquired through observational learning via cognitive processes. Social learning did not require that there be rewards and punishments for learned behavior to occur (as in the neo-behaviorist paradigm that dominated cognitive science in the early twentieth century); rather, all that was required were “the minimal components of attention to a behavioral sequence, retention of its form, and the ability to reproduce the behavioral sequence.” Shelly E. Taylor, The Social Being in Social Psychology, in 1 The Handbook of Social Psychology 66 (Daniel T. Gilbert et al. eds., 4th ed. 1998). The core components of personal cum group identity are learned, on this picture, and such behavior as prejudice or discrimination (or even a willingness to resort to violence to solve problems) is transmitted through various social groups—primarily via story telling—because children hear and see such attitudes in

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out-group distinctions.51 Some empirical examples may help. Steve notices that homosexuals are being subtly discriminated against in my neighborhood; despite the fact that Steve is a heterosexual, he nonetheless acts on the behalf of the gay community by attending gay pride parades and donating money to the International Gay and Lesbian Human Rights Commission, perhaps in part because he fears that he–as a member of a minority religion (let’s stipulate that Steve is a Christian Scientist)–may eventually face the same persecution. This would be a classic case of acting out of surrogate consciousness. 12. HIZBALLAH: A POTTED HISTORY The task for this section will be to demonstrate that Hizballah has used different framing devices in their rhetoric in an attempt to develop surrogate consciousness in their traditional constituency for the purposes of expanding their base. Perhaps they hope to eventually be able to appeal to the members of the group on whose behalf they have developed surrogacy. The group in whom surrogate consciousness is being developed includes the traditional subjects of Hizballah: the people of occupied southern Lebanon, especially Shi’a. The group on whose behalf the conaction in their peers, parents, and authority figures. It is easy to see how the development of prejudice, which may be a necessary (though not sufficient) condition for organized violence to be committed against outgroups, is contingent upon cultural and social factors themselves tightly related to narratives. 51

Huddy points out that the four major theoretical approaches regarding the construction of group identity (which consist of the cognitive approach, realistic interest approaches, social identity theory, and social constructivist theory) all make somewhat different predictions regarding sources of commonality and critical issues around which members may mobilize. Huddy, supra note 50, at 518–21. A thumbnail sketch of these approaches will help us understand her conclusion. The cognitive approach to formation of group identity emphasizes the importance of selfperception in the development of cohesive groups: individuals become group members because they identify with the group and wish to emulate typical group members. Id. Realistic interest approaches stress the common interests that groups share and advance; common fate is thus especially critical. If all of Islam is threatened, and we are Muslims, then it is more likely that we will become cohesive so as to achieve the common objective of protecting the shared interests of our group. Id. Social identity theorists emphasize the importance of symbolic interactions between groups and potential members; group members endorse group memberships because of a need to achieve a positive sense of social identity that will differentiate their own group from others. Id. Social constructivism takes social identity one step further: concepts derive their meaning from social practices; this theory stresses how social identities form even among strangers so long as enough shared interactions can occur to generate the construction of the group as a group. Huddy rightly notes that The cognitive approach predicts cohesion among the members of any salient group; realistic interest theory confines cohesion to groups whose members share a common fate; social identity theory points to unity among widely stigmatized groups, such as low-status ethnic or racial groups, religious sects (etc.), whose members cannot easily pass as belonging to a higher status group; and a social constructivist perspective predicts cohesion among members who share a common understanding of group membership.

Id. at 521. I’ll briefly discuss these approaches later in the main text. Resolving the tensions between these various theories of group identification is beyond the scope of this article. 276

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sciousness is being developed includes Palestinians living in the occupied territories. Part of the reason why Hizballah is taking this action was to prepare the way for being acknowledged as a legitimate actor, not just in the Lebanese political scene but also in the larger Southwest Asian political arena, and not just for Shi’a, but for all groups that have faced injustice in the region–or so I hope to demonstrate in the next section. Some background on Hizballah is in order. Hizballah is Arabic for “Party of God.”52 It is a Shi’a political organization that has a militant and sometimes terrorist wing.53 Aboriginally, it articulated three main objectives: establishing a Shi’a state in Lebanon modeled directly upon the Islamic Republic of Iran, causing the destruction of Israel, and neutralizing U.S. influence in the region.54 In the realm of violent militant action, Hizballah’s activities have included several high profile terrorist incidents. In addition to multiple kidnappings in the 1980s, the infamous Beirut truck bombing of U.S. Marines, the 1985 hijacking of TWA Flight 847, and attacks on Jewish community centers and buildings in Argentina in 1992 and 1994, Hizballah launched a series of suicide bombings in the occupied territories.55 A pre-9/11 chart contained in an article by Ehud Sprinzak demonstrates how successfully Hizballah executed suicide bombings, being the second largest group in terms of aggregate attacks56 (though it is critical to note that Hizballah has since denounced the use of suicide bombings following their involvement with them in the mid1980s). In order to carry out these attacks, Lebanese Hizballah has developed a large and robust organization. It consists of thousands of supporters and members, and hundreds of terrorist operatives.57 This infrastructure developed in part owing to the group’s ties to the Islamic Republic of Iran.58 In addition to the obvious ideological commonalities given the group’s revolutionary goals, Hizballah receives substantial financial support from Iran. Also, the Iranian Revolutionary Guard Corps has been extensively involved 52

CFR.org, Hezbollah (a.k.a. Hizbollah, Hizbu’llah), http://www.cfr.org/publication/9155/ hezbollah_aka_hizbollah_hizbullah.html (last visited Mar. 12, 2008).

53

Id.

54

Id.

55

See generally Bruce Hoffman, Rand, Report No. R-378-Usdp, Recent Trends and Future Prospects of Iranian Sponsored International Terrorism 15–34 (1990), available at http://rand.org/pubs/ reports/2005/R3783.pdf.

56

Ehud Sprinzak, Rational Fanatics, Foreign Pol’y, Sept.–Oct. 2000, at 66, 69.

57

United States Department of State, Country Reports on Terrorism 251 (2006), available at http://fpc.state.gov/documents/organization/29722.pdf.

58

The Wikipedia entry on Hizballah is excellent and provides a good table of organization, background, and historical review. Hezbollah, http://en. wikipedia.org/wiki/Hizballah (last visited Mar. 13, 2008).

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in training and organizing Hizballah (their foundational involvement in the early 1980s was critical during the group’s initial organization). Via a series of Syrian airfields, Iran has air supply connections to the group. Social movement theory provides us with insight into how the conditions for Hizballah’s genesis developed (in large part, as a reaction to the Shah’s program of Westernization). “Identity entrepreneurs,” such as the group’s spiritual leader Sheikh Fadlallah, were instrumental in establishing the organization and moving it through the growth phase. During maturity, the organization carried out militant action; however, as some of its realizable political goals were achieved, and as it gained a larger constituency via the provision of social services such as education and health care, the organization broadened in terms of goals and functions. Eventually, Hizballah came to have a political face, and today the Secretary General of Hizballah is Sheik Nasrallah. Hizbollah is an active participant in the political life and processes of Lebanon, and its scope of operation is far beyond its initial militant one.59 In 1992, it participated in elections for the first time, winning twelve out of 128 seats in parliament.60 It won ten seats in 1996, and now holds eight.61 A stakeholder analysis reveals traceability between developments in Hizballah capacities and patronage from one of the major stakeholders–Iran. For instance, Imad Munniyah came to dominate the security apparatus of Hizballah, and with his ties to Iranian intelligence, he almost certainly used organizational methods from Iran to radically increase Hizballah’s effectiveness in the 1980s. Solid organizational techniques and good traceability between activities led to Hizballah’s increasing effectiveness as a militant organization, but it also led to their broadening into an organization with a legitimate political face as well. Classic reinforcing actions were also taken by Hizballah as they eventually became the largest single provider of social services in southern Lebanon, displacing competitors such as the government of Lebanon (though in many cases the government welcomed Hizballah’s assumption of these responsibilities). “Niche construction” activities like the delivery of health care and food aid are critically important, as they can lead to the development of a stable constituency, which in turn may help moderate an organization’s more militant tendencies,62 as I will briefly discuss later. This potted and all-too-brief summary of Hizballah is intended to establish two main points: first, that the organization’s goals have broadened as time has passed, becoming more politically realistic; and second, that Hizballah has developed a bona fide political constituency, whom they represent both in the Lebanese

59

Id.

60

Id.

61

Id. Hizbollah won fourteen seats in the 2005 election. CFR.org, supra note 52.

62

See Thomas et al., supra note 19, at 80–83.

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parliament and regionally. These modifications have required Hizballah to broaden its base, which in time has led to the articulation of a new narrative designed to generate surrogate consciousness. Before providing textual evidence for this last point, a detour into narrative theory will help provide foundations for understanding tropes and themes emphasized in Hizballah’s media presence.63 Any of these aspects of narrative would be fascinating and important to examine in detail. The next few paragraphs, however, focus on the relationship between stories and identity mobilization, as this aspect is critical to “narrative ecology.” 13. THE FORMATION OF IDENTITY AND SHIFTS IN HIZBALLAH RHETORIC In order to understand how and why individuals in places like Lebanon eventually become members of Hizballah, we need to better grasp both how individual identities are formed and how they interact with groups and cultures to shape a sense of collective identity. The literature on both identity formation and identity interaction is voluminous; however, some key points from it can usefully inform our analysis. Groups of individuals that feel they share a common fate, possess a common identity, face a common threat, or have communal needs, are abundant in most environments. In conditions of violence, where governments are failing to provide basic safety/security needs (think of Lebanon in the aftermath of the civil war), these sometimes latent or “weakly felt” identities are prone to even greater mobilization, with the individual increasingly identifying with the competing identity group rather than the political state. That is, in the right kinds of environments, it is relatively easy for identity entrepreneurs–the tellers of stories that speak to questions of fundamental identity–to make headway in motivating people to act in defense of a group, or play a critical role in a plot that includes the group as protagonist and some other power as antagonist. This is especially the case when we are told certain stories throughout the formative periods of our lives that can easily be recast to provoke a backlash to things like government failure, occupation, or reconstruction.64 The brief review of Hizballah’s history from a few pages ago gives us a priori reason to think the narratives they use to do things like shore up stakeholder support have evolved over the years. There is also textual and other media-based evidence for this conclusion, and some of the narratives seem to have the purpose of creating surrogate consciousness. Consider first an interview with Fadlallah (the spiritual 63

Several of the following paragraphs are taken from portions of an article I co-authored with James Russell. William D. Casebeer & James A. Russell, Storytelling and Terrorism: Towards a Comprehensive ‘Counter-Narrative Strategy’, Strategic Insights, Mar. 2005, http://www.ccc. nps.navy.mil/si/2005/Mar/casebeerMar05.asp. Portions used in the next few pages were written by me. My thanks to Troy Thomas for multiple insights related to this section.

64

See generally Troy Thomas, et al., Warlords Rising: Confronting Violent Non-State Actors (2005) (providing literature review). Of note, in the right circumstances, most any belief system can be radicalized (Christian, Jewish, secular, etc.).

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leader for Hizballah) from a 1987 issue of the Journal of Palestine Studies. In the interview, Fadlallah discusses the tensions between Palestinians and Shi’a in Southern Lebanon in the early 1980s, openly acknowledging that “there was political, material and spiritual weariness; and chaos dominated the south as a result of the disorderly Palestinian political expansion which interfered both in the internal struggle between political parties and in family matters.”65 This assertion was in response to a question from the Journal regarding why it was that some Shi’a in the south apparently viewed the Israel arrival in a positive light. While disputing that all Shi’a felt this way, Fadlallah nonetheless acknowledges that the “Palestinians were expanding in a disturbing way”66 and that it is in the nature of some regional actors to “score points”67 against rivals in Palestinian-Arab political disputes by turning a blind eye to actions they would otherwise condemn (e.g., the Israeli invasion of Southern Lebanon). Later, Fadlallah is even more explicit that he believes “that the Arab political scene, and particularly the Lebanese scene, is moving to free itself from the burden of the Palestine problem.”68 While Fadlallah discusses in this interview that Hizballah has goals that include the essential elimination of Israel as a political force, and uses this to distinguish Hizballah from Amal (which had more limited goals of freeing Southern Lebanon from Israeli occupation), he nonetheless is careful to disentangle Hizballah from direct connection to the Palestinian cause as such. Considerations like this place Hizballah in a bind. On the one hand, the fact that Israel actually completed their withdrawal from Lebanon in 2000 gave Hizballah enormous prestige, as Hizballah’s resistance had arguably led to the first successful case of resistance against Israeli territorial aggression in the region. On the other hand, this development also meant that Hizballah had to find other goals to justify its continued existence as a regional political actor; this was complicated by the fact that their provision of social services, education, and medical care had broadened Hizballah’s base and contributed to their emergence as a political force in Lebanon replete with explicit representative duties. In 1991, Hizballah founded their television station, al-Manar (“the Lighthouse”). Al-Manar is extremely popular regionally, ranking second only to Al-Jazeera in popularity in the West Bank and Gaza Strip.69 Al-Manar broadcasts numerous motivational videos with stirring slogans and professionally produced graphics and 65

Muhammad Husayn Fadlallah, The Palestinians, the Shi’a, and South Lebanon, J. Palestine Stud., Winter 1987, at 3, 4.

66

Id. at 3.

67

Id.

68

Id. at 6.

69

See generally Avi Jorisch, Beacon of Hatred: Inside Hizballah’s Al-Manar Television (2004). Of note, I disagree with many of the policy recommendations Jorisch floats in this book, and I recognize that the Washington Institute has a “not-so-hidden” agenda. Even so, the

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music. These polemical videos serve several purposes, one of which, I contend, is the facilitation of surrogate consciousness for the Palestinian plight in Lebanese viewers. Al-Manar station manager Nayef Krayem says as much, stating that the station has links to multiple militant Palestinian groups (including the military wing of Fatah’s Abu Musa faction and the al-Aqsa Martyrs Brigades), and that part of the station’s mission is to generate material and moral support for the Palestinian struggle against Israeli occupation.70 Hizballah Deputy SecretaryGeneral Sheikh Naim Qassam told Lebanese Future Television that Hizballah provides “national support to the Palestinians through al-Manar television,”71 and Hussein Nasrallah’s rhetoric in multiple venues has included consciousness raising on behalf of the Palestinian struggle.72 Consider, for example, a video broadcast which includes images of a suicide bomber destroying an Israeli checkpoint. Or in another case, a video shows footage of Israeli bulldozers knocking down Palestinian dwellings. A third video details Palestinian suicide bombers who have died while killing IDF members. These videos emphasize the themes that would need to be developed if surrogate consciousness were to appear. Recall that (in the case of the development of related oppositional consciousness) the group would need to become aware of injustices, identify with the group being repressed, and feel the need to redress the injustices; in the case of surrogate consciousness, feeling of group belonging does not need to be present, or if it is present it is sustained only by common fate considerations and will also probably involve recognition that one is not actually a member of the surrogate group. Such videos lay the groundwork for all these things by raising awareness of injustices done to the Palestinians, by providing a means of redressing them (al-Manar broadcasts bank account information for those who wish to donate to organizations which support violent action in response, and also provides sometime material and moral support to Palestinian organizations such as Hamas), and by laying the emotional groundwork for support for things like the second Intifada via the use of resonant music and emotion-laden images.73 One objection is that to assume any particular broadcasts reflect shifts in strategic goals of Hizballah would be unjustified. This is probably the case. For instance, there are links between themes emphasized in al-Manar programming and short-term political goals related to the Lebanese elections. Consider, for instance, the period between May and September 2000, in which the tone and content

book offers valuable background information, and the CD it contains has numerous video clips from station broadcasts which are very interesting and useful. 70

Id. at 34.

71

Id.

72

Id. (Clips 17, 35 and 39 on the CD-ROM included with book).

73

Id. at 67–70. I realize these examples do not necessarily disprove the null hypothesis. They are suggestive, however.

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shifted to emphasize the Israeli withdrawal from Lebanon, Hizballah’s successful military campaign, and Israeli military weaknesses. The “triumph over Israel” theme was probably related not just to facts on the ground about the Israeli/ Lebanon situation but also to the upcoming September 2000 Lebanese parliamentary elections.74 Even so, the shift in tone and content about the Palestinian plight has sustained itself for long enough that the conclusion that this change from the attitude of practiced distant concern of the mid-80’s is more than a tactical political development is plausible. It passes the sniff test. 14. UPSHOTS OF SURROGACY Whether this development is a positive one remains an open question. On the one hand, it increases the chances Hizballah will continue to develop a bona fide constituency and moderate its goals so they become irredentist rather than millenarian, making it all the more likely those goals can be achieved by peaceful political means. This may have the pleasant upshot of marginalizing the militant wing of Hizballah. As Baylouny points out, involvement in democratic institutions has a moderating influence even on those who have anti-system goals.75 Cultivation of a bona fide constituency tends to decrease the likelihood of violent political action, as such cultivation usually involves the formation of moderate organizations and institutions designed to minister to the needs of this constituency. On the other hand, if Palestinians are unable to reach accommodation with Israel through non-violent means (e.g, via the resurgent peace process), the development of surrogate consciousness could retrench Hizballah’s militant elements, which would not be a favorable development.76 Developing surrogate consciousness boosts the complexity and interconnectedness of the system; from a policy-making perspective, this can be both a good and bad thing, contingent upon how the system as a whole develops. Before concluding, let us acknowledge the multiple limitations afflicting my thesis for this Article. These limitations include not only space limitations but also my radically incomplete survey of Hizballah rhetoric and propaganda, amplified by the complication that the author does not speak or read Arabic (this limitation is being redressed in the long run). The necessary resources were not available to distinguish between elite rhetoric and other layers of stratification in Hizballah’s

74

Id. at 37.

75

Ann Marie Baylouny, Democratic Inclusion: A Solution to Militancy in Islamic Movements, Strategic Insights, Apr. 2004, at 2, http://www.ccc.nps.navy.mil/si/2004/apr/baylounyApr04.asp.

76

Daniel Byman argues that we should not crack down on Hizballah itself, but should instead focus on undercutting Iranian and Syrian stakeholder involvement. This tack, he contends, will maximize the chances that Hizballah will fully become a mainstream political actor. Daniel Byman, Should Hezbolah Be Next?, Foreign Aff., Nov./Dec. 2003, at 54, 64–66.

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organization; a more in-depth study would discuss this difference in detail.77 Nor did this Article provide a comprehensive review of the political context in which Hizballah has been acting. On the whole, however, despite these limitations these linked theses are at least plausible and worthy of further investigation. CONCLUSION This Article argued for a series of hypotheses. First, it distinguished the concept of surrogate consciousness from related psychological processes involved in framing. Surrogate consciousness arises from the conjunction of empathetic responses with a “thin” sense of shared identity even in the face of obvious and self-acknowledged out-group distinctions; it can play a critical role in broadening an organization’s base of support. Second, by analyzing official documents of Hizballah and the rhetoric of Hizballah leaders such as Nasrallah and Fadlallah and the al-Manar television station, it provided (admittedly slim) evidence that the Party of God has broadened its goals and that this in turn has led to narrative efforts designed to boost surrogate consciousness in the Shi’a of Lebanon for the plight of Palestinians in the occupied territories. Third, and most briefly, this Article argued that whether this is a positive development is an open question. It contributes to Hizballah’s maintenance of a constituency, which is a net positive, but it could also lead to identification with militant means of resolving disputes should the latest incarnation of the Palestinian/ Israeli peace process fail. Irrespective of how political events in the Middle East shape–and are shaped by–Hizballah in the future, this Article has driven home the importance of understanding the rhetorical and narrative “top cover” movements and organizations use. Only by engaging in this endeavor in subtle (and sympathetic) ways can we hope to shift the storytelling atmosphere in such a manner that peaceful resolutions to political conflict become the norm in the region. In other words, a critical aspect of shifting culture will involve understanding how military force produces change in the narratives which shape organizational development. It also has served as a test bed for a larger theoretical point, one that could be the subject for a major research program: the relationship between narratives, the development of identity, and the presence of empathy. Understanding how these three things are interrelated could help us improve not only the struggle against political violence and how to help Hizballah develop into a legitimate political actor renouncing terrorism, but also how genocides happen to how we can better engineer a judicial system that is fair and just. These are all important and pressing questions for our time. 77

Consider, for example, Glenn Robinson’s argument that Hamas and the PLO converged in their use of symbology even as animosity between elites in the organizations persisted. Glenn E. Robinson, Building a Palestinian State 160–62 (1997). While I would assume that Hizballah elites control al- Manar content, I am not familiar enough with al-Manar’s production process to say so with complete assurance. An interesting and important project would be to analyze elite control over Hizballah rhetoric especially in light of use of media like call-in televised talk shows and the internet where centralized control of content becomes more difficult.

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PSYCHOLOGICAL, THEOLOGICAL, AND THANATOLOGICAL ASPECTS OF SUICIDAL TERRORISM J.S. Piven†

Copyright © 2007–2008 by Case Western Reserve Journal of International Law; J.S. Piven. Originally published in Case Western Reserve Journal of International Law (2007–2008)

Suicide actions are the most exalted aspect of the Jihad for the Sake of Allah. —Sheik Yussuf Al Qaradawi1 [H]old tightly to the religion of God. Guide your children to the mosque and instruct them to attend the Qur’an and recitation lessons, and teach them to love jihad and martyrdom. —Shadi Sleyman Al Nabaheen2

This work focuses on the psychological motivations of those who destroy themselves and others in the name of God. It must be stated at the outset that a psychological reading is not a moral or ethical evaluation of such acts. This piece does not debate whether such deeds are justified, and does not endorse or excuse acts called “suicidal terrorism,” but seeks to explore and illuminate complex and elusive aspects of ideology and behavior. In addition, it must also be stated unequivocally that this paper does not essentialize people labeled terrorists, reduce them to a single type, archetype, caricature, or diagnose them as raving lunatics. It does seek out the dynamics of unconscious fantasy, and dwells upon the enigmatic speeches and texts of terrorists who drape their own actions in a theological language that sanctifies death. This paper is not a condemnation of Islam, but rather an elucidation of how †

Professor Piven is a lecturer in the Department of Philosophy at Case Western Reserve University. He has earned interdisciplinary graduate degrees in the fields of psychology, religion, philosophy, and literature, and has studied at the National Psychological Association for Psychoanalysis training institute. This article was originally presented on March 30, 2007 at the Roe Green Foundation conference “Sacred Violence: Religion and Terrorism” organized by the Institute for Global Security Law and Policy at the Case Western Reserve University School of Law. A webcast of the conference may be accessed at http://law.case.edu/centers/ igslp/webcast.asp?dt=20070330.

1

Yussuf Al Qaradawi, The Fatwa of the Scholar, Dr. Yussuf Qardawi, Relating to the Participation of Women in Suicide Actions, Filisteenal-Muslima, available at http://www.intelligence.org. il/Eng/sib/2_05/funds_f.htm.

2

Mohammed M. Hafez, Rationality, Culture, and Structure in the Making of Suicide Bombers: A Preliminary Theoretical Synthesis and Illustrative Case Study, in 29 Studies in Conflict & Terrorism 165, 176.

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ignominy, misery, and oppression catalyze a theology that transforms abjection and victimization into heroic apotheosis. Suicide bombing is more than a conscious strategy designed to murder and terrorize enemies and oppressors. A psychological understanding of suicide bombing consequently requires more than a delineation of the stated motives and putative goals of the attack. There are numerous motives to murder others, and one must distinguish the form of the attack from the various motives and fantasies that are channeled into this strategy. Not all suicide bombers have the same philosophy or political agenda. Suicide bombers hail from different countries, societies, cultures, and organizations, and they have different experiences, emotions, and ways of imagining life and death. They have been molded by divergent cultures, families, religions, and events. If suicide bombers perform similar acts, this does not mean that every one has the same purpose, mindset, or psychological organization. People can perform the same act with vastly different conscious and unconscious agendas, desires, strivings, and compulsions, and this means we must question—or even reject outright—the possibility that the act of suicide bombing is merely an intentional strategy of identical impetus for all performers. A psychological approach to suicide bombing is initiated by the axiom that there are profound and powerful motives of which people are completely unaware, and indeed, do not wish to know. This article therefore attempts to understand not only why suicidal terrorists say they are destroying themselves and others, but also what is not being said: what is disavowed, obscured, and fulfilled in suicide bombing beyond the awareness of the actor. The task is to dissect some of the salient motives of suicide bombers by examining the cultural matrices and discourses that define, compel, validate, and exalt the strategy of destroying the self in vengeance against others. PROBLEMS WITH CURRENT RESEARCH ON SUICIDE BOMBERS Much of the prominent work on terrorism focuses on strategic, political, and socioeconomic factors. Hafez argues that destroying oneself in a terrorist act is a strategic decision based on the calculation of the cost of one’s own death compared to the lives eradicated.3 Suicide terrorism is a stratagem employed by weak groups suffering from limited resources and the asymmetrical power advantage of militarily superior opponents.4 Terrorist groups are thus protective of their scarce financial, material, and human assets and prioritize secrecy and preservation of their

3

See Mohammed M. Hafez, Manufacturing Human Bombs: Strategy, Culture and Conflict in the Making of Palestinian Suicide Terrorism, Presented at the National Institute of Justice (October 2004).

4

Id.

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organizations, waging indirect, but efficient, types of warfare to impair their adversaries, while vouchsafing their own people and resources.5 For Hafez, what is putatively irrational or emotive violence is actually methodologically effective asymmetrical war.6 Palestinian suicide bombers, for instance, are unlikely to defeat the Israeli Defense Forces (“IDF”) who have vastly superior training, armament, and prodigious resources that enable them to tolerate considerable material losses.7 Unsophisticated weaponry and conventional tactics have been ineffective against the IDF, while incurring severe Palestinian casualties.8 Targeting civilians, however, effectively terrorizes Israelis, impairs their economy, and steers settlers from the occupied territories.9 The disproportionate paucity of sacrificed “martyrs” compared to the abundance of murdered Israelis creates a more symmetrical “balance of terror.”10 According to Hamas’ overseas Political Bureau member Muhammad Nazzal, conventional military tactics within the occupied territories resulted in an average of one Israeli casualty for every twelve Palestinians killed, whereas suicide bombings within Israel’s 1948 borders yielded nine Israeli deaths per martyr.11 According to Hafez, recruiting and training suicide bombers is also relatively inexpensive compared to the protracted arming and encampment of guerrillas.12 Accomplishing their missions with superior versatility and accuracy, suicide bombers are the smartest bombs ever manufactured.13 Their impact is also psychologically devastating because of the horrific sense that they are committed, unwavering, and undeterred by the risk of death.14 Such notions about the strategic effectiveness of martyrdom as a “war of attrition” that could decimate the Israeli economy, jettison immigrants from Israel, generate pervasive dread in Israeli domiciles, and establish a “balance of terror” were confirmed repeatedly in conversations Hafez had with supporters of Hamas in the West Bank.15 Indeed, the Israeli love of life

5

Id. at 3.

6

Mohammed M. Hafez, Rationality, Culture, and Structure in the Making of Suicide Bombers: A Preliminary Theoretical Synthesis and Illustrative Case Study, in 29 Studies in Conflict & Terrorism 165, 168.

7

See Hafez, supra note 1; See also Hafez, supra note 4, at 173–74.

8

Hafez, supra note 4, at 174.

9

Id.

10

See id.

11

Id.

12

See id. at 166.

13

See id.

14

See id.

15

See id. at 174; See Hafez, supra note 3.

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was construed as the “principal weakness” enabling the suicide bombers to strike fear in the hearts of their enemies.16 Among the recent plethora of studies, Pape’s 2005 monumental work also incorporates comprehensive profiles to analyze suicide bombing as political strategy rather than the consequence of Islamic fundamentalism. Pape claims that over 95% of suicide attacks are campaigns orchestrated by sizeable militant organizations with substantial public support.17 Suicidal terrorism is positively correlated with military occupation by the United States, which colludes with corrupt undemocratic regimes and dictators.18 Suicidal terrorism therefore derives predominantly from countries considered American allies, where large segments of the populace resent American imperialism, occupation, and interference.19 Hence, while Muslim fundamentalism is usually touted as the primary motive for suicidal terrorism, Pape claims that the essential motive is expulsion of an occupying military presence.20 The most prolific perpetrators of suicide terrorism are the Tamil Tigers of Sri Lanka, which is a primarily secular Marxist-Leninist group “adamantly opposed to religion.”21 Thus, suicide campaigns invariably have a demonstrable secular political agenda to force the withdrawal of military occupation from homeland territories. According to Pape, democracies such as the United States have repeatedly acquiesced to the demands of such terrorists because suicidal techniques have proved strategically efficacious.22 Such palpable effectiveness thus explains the increase in suicide bombing, as opposed to fundamentalist, theological, or eschatological motives.23 Religion becomes a more crucial factor when the occupying military presence represents a divergent theological tradition, hence amplifying the sense that oppression and invasion are imbued with religious crusade and domination. Religion, then, only intensifies the feelings of victimization and hatred for the oppressors, rather than initiating it. This perspective thus interprets terrorist motivation as a response to proximate issues. In such studies, terrorism is considered a reasoned response to political injustice and humiliation. Numerous authors thereby purport to examine the emotional responses of terrorists, but then rescue terrorist emotions from any

16

Hafez, supra note 3.

17

Robert A. Pape, Dying to Win: The Strategic Logic of Suicide Terrorism 38–39 (2005).

18

See id. at 4–5, 118.

19

See id. at 4–6.

20

Id. at 4–5.

21

Id. at 4. Members of the Tigers are also of Hindu origin, thus additionally disconfirming the correlation with Islam. Id.

22

Id. at 44–45.

23

Id. at 61–64.

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implication that terrorists are driven by non-rational reactions. Though some analysts conspicuously outline a host of non-rational feelings and fantasies—not to mention paranoid and even delusional responses—authors such as Stern, Robins and Post, Atran and Berko, Wolf, and Addad assert unequivocally that terrorists are not pathological.24 One given in the war against terrorism seems to be that suicide attackers are evil, deluded or homicidal misfits who thrive in poverty, ignorance and anarchy. . . . As logical as the poverty-breeds-terrorism argument may seem, study after study shows that suicide attackers and their supporters are rarely ignorant or impoverished. Nor are they crazed, cowardly, apathetic or asocial. If terrorist groups relied on such maladjusted people, “they couldn’t produce effective and reliable killers. . . .25

This argument admirably avoids the unfortunate tendency to stigmatize those we find criminal or aberrant as mentally ill, negating their humanity and deligitimating their causes as the deliria of mental defectives. Such evasion consequently ignores the implications of its own evidence, however, and often renders such studies contradictory, shallow, and facile. The quote above also conflates ignorance, impoverishment, cowardice, and insanity, as though mental illness were a malady only of the indigent and craven. According to the above assumptions, proof of sanity resides in the notion that since terrorists are not misfits and maladjusted people, they must be devoid of any form of psychopathology or any other non-rational motivation. The explicit proof is that effective killers cannot be mentally ill, since they would then be ineffective and unreliable, which is both absurd and disproved by copious evidence.26 The specious assumption is that if one can plan a meticulous attack, one must be sane, and conversely, that the mentally ill must be delirious raving lunatics. In contrast, one could isolate a number of psychological syndromes that are not only compatible with meticulous execution of murder, but are necessary for the dehumanization, projection, and dissociation often accompanying slaughter, and are even its fundamental motivations. It seems not to occur to the theorists referenced above that one can be a murderer capable of precise planning, yet pathologically 24

See Anat Berko et al., The Moral Infrastructure of Chief Perpetrators of Palestinian Suicidal Terrorism, in 9 Terrorism and the International Community 10 (Shlomo G. Shoham & Paul Knepper eds., 2005); Robert S. Robins & Jerold M. Post, Political Paranoia: the Psychopolitics of Hatred (Yale Univ. Press 1997); Jessica Stern, Terror in the Name of God: Why Religious Militants Kill (Ecco 2005); Scott Atran, Who Wants to be a Martyr?, N.Y. Times, May 5, 2003, at A23.

25

Scott Atran, Who Wants to be a Martyr?, N.Y. Times, May 5, 2003, at A23.

26

Lonnie H. Athens, The Creation of Dangerous Violent Criminals 73–74 (1989); see also James Gilligan, Violence 250 (Vintage 2006) (discussing a specific individual with mental illness who perpetrated a murder); Carl Goldberg, The Evil We Do: The Psychoanalysis of Destructive People 38–39 passim (2000) (discussing psychoanalysts tendency to explain the characteristics of “evil people” as symptoms of psychiatric diagnosis, and addressing the relationship between psychology and destructive behavior).

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dissociated from guilt or remorse—suffering from defective empathic structures, trauma that undermines rationality and motivates defensively hostile responses, and engenders regressive and rigidified thinking that only conceives the world in starkly divided categories of black and white, or utter good and evil, while disallowing ambiguity or dissention. Additionally, this mode of interpretation presumes that the group must be rational (since they “weed out” the lunatics), whereas research into group psychology demonstrates how significant conglomerations of individuals can engage in group fantasies—all sharing ideas, wishes, and convictions with absolute certainty—that are nevertheless entirely fictive. Not only is the group not a barometer of reality–– either through consensus-made truth or the theory that the larger a population the more likely their perceptions would be correct––but groups function in ways that validate and mutually reinforce fantasies. Fictions can be validated, propagandized, reinforced, canonized, mythologized, and naturalized as absolute fact in a group.27 Not only does the group not seek reality or have a better chance of grasping it with the network of multiple minds, but the group tends toward regression and magical thinking, losing the capacity to discern reality and carry out independent thought. While sometimes retaining realistic anchors, other crucial aspects of cognition erode in the group, where the unreal is made to appear sensible and factual by mutual agreement and the pleasure of in-group confirmation. Members of such groups may or may not be individually pathological; nevertheless, the group itself may suffer from various modes of unreality, paranoia, and even delusions concerning their enemies, the world, and the theological beliefs that are utterly real to them. Group normality may indeed consist of group delirium—shared imaginings that unite people in a political cause or religion—and from such delirium the most meticulous, realistic planning and murder may be contrived. The Japanese cult Aum Shinrikyo is an apposite case. This group of highly educated, intelligent, and skilled individuals, with a diversity of scientific and technical proficiencies, meticulously designed and executed a bioterrorist attack that killed a dozen people and injured five thousand more. Nevertheless, Aum members suffered from delusions that their psychopathic leader Shoko Asahara was a god and savior, that various initiations and machines could clone the brainwaves of the guru, that the world was destined for Armageddon, that the cult would rescue humanity from its decadence by initiating the apocalypse, and that members of the cult could be reborn in

27

290

Otto F. Kernger, Sanctioned Social Violence: A Psychoanalytic View, Part I, 84 Int’l J. of Psychoanalysis 683 (2003); see also Otto F. Kernberg, Sanctioned Social Violence: A Psychoanalytic View, Part II, 84 Int’l J. of Psychoanalysis 953 (2003) (discussing the way that fundamentalist ideologies shape the reality of those who adhere to the ideologies, specifically terrorists); Ronald Barthes, Mythologies 123–35, 142–45 ( Jonathan Cape trans., 1972) (analyzing ways that languages uses myth to distort and frames reality). TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008

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the cataclysmic aftermath.28 The fact that a group agrees on an idea and plans a murder scientifically is not proof of sanity, only that their fantasies have united them in a potentially lethal purpose.29 Some authors, cited previously, describe terrorism as a reaction to the horrifying and traumatic devastation around them, the murder of civilians, the abject injustice, humiliation, desolation, and slaughter that befall their communities.30 These analyses tend to conclude that the terrorist response to such misery, humiliation, and injustice is a strategic means of wreaking vengeance against the perpetrators.31 Despite the appalling massacre that motivates terrorists, these author’s contend that the myriad of traumas only motivate reprisal, but somehow do not undermine a sense of reality and sanity, as though one could react to such murder and devastation sanely. Somehow, one may be repeatedly traumatized but not irrational or pathological as a result. What is required is an appreciation of the impact of trauma not only on the initial victims, but also on future generations because victims of trauma do not react realistically. Witness the American reaction to 9/11, which understandably—but not rationally—included feelings of shock, disbelief, rage, paranoia, militancy, and even guilt. Calls to nuke Afghanistan and bomb them into the Stone Age were fairly commonplace, as were reactions of dissociation, remorse, panic, and an inability to cope. American soldiers returning from one tour of Iraq suffer the symptoms of traumatic stress, and Israeli soldiers often manifest severe signs of trauma derived from experiences of inflicting violence on the Palestinians. Consider what happens when one is traumatized repeatedly—when one does not see it on television while sitting on the couch—but witnesses it unceasingly for years, when one watches the humiliation and blood splatter every day. Then consider how this affects children, whose psychic structure is so much more vulnerable to trauma and derangement, whose very emotional architecture is organized, or disrupted, by such repeated trauma. Consider how such trauma can be transmitted transgenerationally, not only through the teaching and speech of their parents and neighbors, but through interaction with people ineluctably altered by their trauma. The effects are almost incomprehensibly complicated and destructive. To suggest that in such an 28

Robert Jay Lifton, Destroying the World to Save it: Aum Shinrikyo, Apocalyptic Violence, and the New Global Terrorism 44–49 (1999). Actually, the group was successful in more than one attack, previously murdering several others with biological agents. They also failed numerous times until their skills were sufficiently honed to distribute lethal doses of sarin gas in the Tokyo subways.

29

Kernberg, Part I, supra note 27, at 690–93; Kernberg, Part II, supra note 27, at 956–60; See generally Didier Anzieu, The Group and the Unconscious (Benjamin Kilborne trans., 1984); Weston La Barre, The Ghost Dance: The Origins of Religion (1970); Wilfred R. Bion, Experience in Groups (1961); Daniel Goleman, Vital Lies, Simple Truths (1986); Irving Lester Janis, Victims of Groupthink (1972).

30

See id.

31

See id.

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environment people are inherently rational is not only a denial of the impact of violence, but is further violence against them by denying the depth of such pain and devastation. It denies them their wounds.32 Does this mean they are all insane? Of course not. It means that people suffering such desolation are affected in serious ways, and to assume that the emotions are not rife with turmoil is unrealistic, insensitive, and emotional annihilation. One tends to assume that if there is real violence and oppression, then a retaliatory response is rational, especially if the tactics are realistic. Despite this premise, the strategic response does not make the retaliatory impulse rational, nor its aims, choice of targets, or claims. For example, one can spin an unrealistic fantasy about one’s putative enemies based on real oppression. One can respond to actual violence with realistic tactics but genocidal proclamations. If the Israeli government is oppressive, is every retaliation reasonable? Shall we believe that the call for the elimination of every Jew and the Zionist conspiracy is rational? When someone responds to a horrible atrocity, such as a soldier breaking the hands of a child who throws rocks,33 is it reasonable to demand the death of every Jew on earth? Is the mass hate and imagination of the Zionist conspiracy rational? Is the impulse to slaughter? As Kressel reminds us, not every claim of victimization is a realistic assessment of the victimizer.34 The actuality, source, and scope of the evil may be vastly distorted, as may the scope of reprisal reflect utterly rageful, vengeful, irrational feelings and projections. Real victimization can create a victimization mythology that distorts the causes of the events, sanctifies vengeance, and draws on past injustices that

32

See generally Rudolph Binion, Europe’s Culture of Death, in The Psychology of Death and Fantasy and History 119 ( Jerry S. Piven ed., 2004); Ani Kalayjian & Marian Weisberg, Generational Impact of Mass Trauma: The Post-Ottoman Turkish Genocide of the Armenians, in Jihad and Sacred Vengeance: Psychological Undercurrents of History 254 ( Jerry S. Piven & Chris Boyd eds., 2002); Vamik Volkan, The Need to Have Enemies and Allies (1988); Vamik Volkan, Bloodlines: From Ethnic Pride to Ethnic Terrorism (1997); Vamik Volkan, Blind Trust: Large Groups and Their Leaders in Times of Crisis and Terror (2004).

33

Though Rabin was reputedly a man of peace, he also apparently advocated the policy of breaking the hands and legs of Palestinians (adults and children) who threw stones. There are numerous internet, magazine, and newspaper reports of the torture and brutality inflicted by Israeli soldiers, though some accounts seem more reliable than others. Allison Weir, U.S. Media Coverage of Israel and Palestine: Choosing Sides, in Censored 2005: The Top 24 Censored Stories (2004); John Kiffner, Arabs Recount Severe Beatings by Israeli Troops, N.Y. Times, Jan. 23, 1988; Anthony Lewis, Mr. Rabin’s Policy, N.Y. Times, Jan. 21, 1988, at A27; Gilles d’Aymery, Justice and Palestine: An Oxymoron?, Oct. 4, 2004, http://www.swans.com/library/art10/ga183. html; Nancy Gibbs et al., Yitzhak Rabin & Yasser Arafat, Time, Nov. 3, 2005, available at http://www.time.com/time/printout/0,8816,1125850,00.html; Ralph Schoenman, The Hidden History of Zionism, Apr. 19, 1988, http://takingaimradio.com/hhz/pref.htm#n10.

34

N.J. Kressel, Mass Hate: The Rise of Genocide and Terror 15 (2002).

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validate this mythologized worldview. This is what Volkan calls “chosen trauma.”35 A group may recall victimization that occurred a thousand years ago to mythologize the fantasy that its people are always the victims, ignoring its own aggression and the bloodshed initiated by it. It is an act of supreme naiveté to assume that because one group has been harmed, every act done in reprisal is rational. Scholars differ in their assessments of the motives of suicide bombers and their emotional states. The eminent CIA profiler Jerrold Post considers terrorists “normal” because they evidence no conspicuous abnormalities or symptoms, and if they did they would certainly be ousted by the terrorist organization. 36 Post calls terrorists “true believers” who often suffer from such misery and desolation that they can be manipulated by paranoid leaders and directed like missiles toward their targets.37 They are “driven to commit acts of violence as a consequence of psychological forces,” are “compelled” and “drawn to the path of terrorism” so they may inflict violence,38 and also, terrorists utilize defense mechanisms endemic to borderline psychotics such as splitting and projective identification in relation to their enemies.39 Apparently, however, terrorists evidence no psychopathology.40 Even their paranoia is a product of socialization and a group phenomenon, and does not reach psychotic proportions.41 One of the problems with Post’s analysis is that he continually cites the deep humiliation and pain of terrorists, calling them paranoid “true believers,” while maintaining the belief in their normality.42 A “true believer” may indeed be manipulated by a leader and group, but this is psychopathology. Post fails to see how socialization and indoctrination can be enormously traumatic. One who is manipulated and programmed is not merely brainwashed and filled with misinformation, and cannot be easily deprogrammed if taken from the group.43 The indoctrination process can be so brutal and injurious that it destroys an already vulnerable, fragile 35

Volkan, Blind Trust, supra note 34, at 47–52.

36

Jerrold M. Post, The Psychological and Behavioral Bases of Terrorism: Individual, Group and Collective Contributions, 14 Geo. Wash. Int’l Affairs Rev. 195, 195–96 (2005).

37

Id. at 197.

38

Jerrold M. Post, Terrorist Psycho-Logic: Terrorist Behavior as a Product of Psychological Forces, in Origins of Terrorism: Psychologies, Ideologies, Theologies, States of Mind 25, 25 (Walter Reich ed., 1990).

39

Post, supra note 41, at 27–29; Robert S. Robins & Jerrold M. Post, Political Paranoia: The Psychopolitics of Hatred 77–78 (1997).

40

Post, supra note 39, at 196.

41

Post claims that terrorists are “normal” because they are not psychotic, a peculiar conceptual leap that simplistically voids all forms of severe disorders and even psychopathology in the borderline spectrum. Post, supra note 39, at 195.

42

Robins & Post, supra note 42, at 101–02; Post, supra note 39, at 195–97.

43

Post, supra note 39, at 197. Some may be deprogrammed, but many others, as I argue, have been brutalized and traumatized, and require far more extensive help.

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personality, even while it gives one purpose. It can not only arouse paranoid potential, but also exacerbate and even imprint it on the biological level. The brain itself can be embossed with paranoid anxiety that is extraordinarily difficult to change.44 Many of the paranoid “true believers” Post considers normal are actually fanatics when not under the group’s influence. One cannot consider the ideological commitment of Osama bin Laden or Muhammad Atta a product of group psychology. Atta lived in America, which did not decrease his resolve, but may well have intensified it when he was exposed to American hedonism and modernity. The fanatic is not only a transitory pawn, but he can also be a person of permanent paranoia, suffering from malignant narcissism and deeply pathological projections and defenses.45 The fanatic obsession with a totalizing cause and the perception of the world in purified black and white terms is not only induced, but can also be a permanent state of psychological arrest and a defense against terror, chaos, ambiguity, and vulnerability. Misperceptions and misinformation about Jews may be commonplace in the Middle East, but when people have been told all their lives that Jews are wicked bloodthirsty enemies who eat children and conspire against Muslims with a worldwide network, this becomes a delusion. When children are indoctrinated from the time they can speak that the Jews are an insidiously wicked group ceaselessly striving for the death of all Palestinians, terror continually traumatizes the fragile psyche and organizes (or deranges) the cognitive processes with the imagination that cataclysmic evil may strike at any moment. The misinformation has induced so much terror and siphoned so many other angry, humiliating, and fearful emotions into the Jewish image that paranoia has become the psychic architecture. When Kressel writes about the collective delusion regarding Jews,46 he describes not merely the dissemination of inaccurate information or propaganda, but a propensity for paranoid thinking and fantasizing that replaces any semblance or reality concerning Jews (not Israeli politics). Jews are not merely distorted, but are projected, as well. The image of the Jew secretly conveys the inner turmoil of the person who imagines and recreates his enemy. As Robins and Post demonstrate, many Muslims perceive any random and even minuscule event as a Jewish conspiracy.47 Even a tiny but unexpected mark on a piece of clothing becomes evidence of an insidious collective Jewish plot against hapless Muslims.48 Indoctrination is 44

See generally Joseph LeDoux, Synaptic Self: How our Brains Becomes Who We Are (2002).

45

Kernberg, Part I, supra note 27, at 693; Kernberg, Part II, supra note 27, at 953.

46

Kressel, supra note 36, at xxiv.

47

Robert S. Robins & Jerrold M. Post, Political Paranoia: The Psychopolitics of Hatred 3 passim (1997).

48

Robins & Post, supra note 50, at 54–55.

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not only group agreement or group anxiety that has mistaken the Jew. It has so warped the sense of reality that paranoia has been imprinted, and individuals suffer from a ubiquitous post-traumatic stress disorder, featuring Jews as the permanent nightmare and persecutor, regardless of the fact that no Jew is responsible for such imaginings. No Jew is actually guilty of such machinations, nor has any provided an iota of reason to support such profuse fantasies that the world is teeming with scheming Jews bent upon Muslim agony. One cannot assert that there is good reason to believe Jews are secretly marking Arab clothing for some untold sinister purpose. And again, the Israeli government is not a worldwide Zionist conspiracy. To conclude from Israeli military strikes that all Palestinian suffering and any random sign is evidence of Jewish conspiracy would be to conclude from the actual instances of suicide bombers that a fleck on one’s kosher hot dog were evidence of Palestinian conspiracy to taint one’s wiener with traife. It would be like imagining that the Palestinians secretly controlled the whole world—all industry, entertainment, and government—and were with all these pervasive powers engaged in ubiquitous efforts to liquidate all Jews, whether through bombs, child cannibalism, or befouled frankfurters. Not actual Israeli militance, but the infinitude and omnipresence of Jewish conspiracy and malevolence is the delusion of reference, a paranoid means of rendering any and all evil the fault of Jews, namely imaginary Jews who in this delirium control the world and conspire for the death of all Muslims. Thus, while one might reasonably suggest that the profusion of Israeli violence against Palestinians traumatizes them into fearing the imminence of death and destruction, one must also recognize the immense impact of indoctrinating children into believing that all Jews are a force of worldwide conspiratorial evil. One should also consider that while groups regress cognitively and emotionally, this regression is not inevitable. Groups also willingly regress, for this allows members to become dependent like children on powerful leaders, to behave in ways that would ordinarily be forbidden, and to perform violent acts without fear of punishment or accusation because the acts are sanctified by the leader. Groups can also nurture enemy images, for these enable intracommunal conflicts to be projected onto the other and combated.49 If one needs and nurtures fantasies of the enemy and stays in a state of regression and fantasy, then in one sense, the person has chosen not to emerge from the dream, or hallucination. It is gratifying in manifold ways, and hence, one should be wary of assuming that one has been manipulated beyond his own will or capacity to resist. Implicitly, then, by claiming terrorists are not pathological, even the most paranoid idea is muted to support the conclusion that terrorists are people whose reasoning

49

See generally Robins & Post, supra note 50, at 77–78, Volkan, The Need to have Enemies and Allies, supra note 34; Volkan, Blind Trust, supra note 34.

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faculties are entirely intact. One wonders just how irrational or paranoid a terrorist must be for such analyses finally to suggest that he may be driven by ideas and fantasies other than a reasoned response to political oppression. There is the simultaneous acknowledgment of deeply nonrational motives, but a denial that terrorist strategies are nonrational and derived from deeper, more complex causes than the actual political problems being addressed. This argument seems to tacitly assume that there is only overt disorder or normality, rather than a spectrum of psychological problems ranging from ordinary but minor conflicts, to isolated aspects of reality distortion and obsession, to complete decompensation and psychosis. From such a perspective, one is either functional or not, whereas there is ample evidence that people can suffer serious reality impairments or personality defects while nevertheless being rational or functional in other ways.50 Another tacit assumption seems to be that unless there is overt or demonstrable symptomatology, there are no deeper motives at all. This conflates normality with the absence of nonrational motives and unconscious fantasies, as though “normal” people are fully conscious, completely aware of themselves, and in control and unburdened by irrational needs and impulses. The supposition is that “normal” people are not motivated by unconscious emotions and fantasies. Such facile explanations divest the mind of its intricacy, capacity, and proclivity for imagination and contradiction, and the sense that our conscious ideas and emotions may be comprised of a matrix of rational and nonrational ideas. Consider the example of Silke, who argues that suicide can be a sensible act, the behavior of “rational, reasonable, relatively ordinary individuals.”51 Further, “the more reliable studies on the psychology of terrorists have refuted the view that they suffer from mental problems or are otherwise psychologically deviant.”52 Silke names no studies, but interestingly, such studies do exist and have been continually cited by others in the field. 53 The problem is, obviously, that supplying no evidence and merely claiming something is proved does not actually prove anything. The appearance of consensus then becomes a clichéd way of not addressing the conceptual and methodological issues, whereas many of the psychological studies

50

See generally Michael Eigen, The Psychotic Core (1986); Michael Eigen, Age of Psychopathology (2006), available at http://psychoanalysis-and-therapy.com/human_ nature/eigen/pref.html; Nancy McWilliams, Psychoanalytic Diagnosis: Understanding Personality Structure in the Clinical Process (1994).

51

Andrew Silke, The Role of Suicide in Politics, 18 Terrorism and Political Violence 1, 36 (2006).

52

Id.

53

Id.

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purporting to demonstrate an absence of terrorist pathology are susceptible to serious criticisms.54 Silke’s argument that murdering oneself can be reasonable is comprised of several historical examples, such as the suicide of Cato after defeat by Caesar’s armies and kamikaze self-sacrifice.55 The ineradicable problem here is that none of these historical examples speaks for itself, and Silke has provided no real evidence of the psychological motives for such cases. Certainly his examples make it seem that certain instances of suicide could be rational, but we have no access to the unconscious fantasies and motives of Cato. Even if we allow for the possibility that some suicides are not driven by unconscious motives, Silke has not in any sense proved that the suicides of Palestinian bombers are rational. The only conclusion is that they might or might not be, since no real evidence is cited. Can we really assume that the simply stated motives of an act preclude all else? Shall we take all suicides at their word? The study of suicide demonstrates far more intricate motives than the conscious subject knows. Were one to actually investigate these historical examples, one might find they are far more complicated than the simplistic versions that desiccate them of any psychological content. There were, indeed, complex and varying emotions among the kamikaze pilots, including a profound need to feel loved that drove them toward fusion in death, or the desire for oblivion against the agony of life.56

54

See Jerry S. Piven, Terrorist Theology, Hallucination, and Apotheosis in Death, in Terrorism, Jihad, and Sacred Vengeance ( Jerry Piven et al. eds., 2nd ed. 2007); see also Jerrold M. Post, The Psychological and Behavioral Bases of Terrorism: Individual, Group and Collective Contributors, 14 Int’l Affairs Review 195, 195–6 (2005). As argued above, they tend to assume that since terrorists can be highly intelligent and functional, they cannot be irrational or pathological, since they would then be “apathetic,” “asocial,” “indigent,” or some species of drooling mental patients suffering paroxysms of frenzied homicidal rage. Such studies are also usually based on brief interviews, as though these could be sufficient to fathom the complexities of human motives for murder. Finally they tend to ignore terrorist discourse, especially the language of totalizing theology as its validation of apocalyptic and genocidal justice. This discourse is a vital source of information about the cognition of the terrorist, the disposition toward paranoia, even hallucination, the black and white schema that tolerates no deviation, the worldview that demands dissenters must die, etc.

55

Silke, supra note 54, at 40–44.

56

Viggo V. Jensen & Thomas A. Petty, The Fantasy of Being Rescued in Suicide, in Essential Papers on Suicide 131–41 (Mark J. Goldblatt & John T. Maltsberger eds., 1996). See also Dan H. Buie, Jr. And John T. Maltsberger, The Devices of Suicide: Revenge, Riddance, and Rebirth, in Essential Papers on Suicide 397–415 (Mark J. Goldblatt & John T. Maltsberger eds., 1996) (discussing the idealization of suicide and the fantasy that death brings a person some pleasure or inner peace); Jerry S. Piven, The Madness and Perversion of Yukio Mishima 114 (2004) (describing the philosophy and culture of kamikaze pilots); Norman L. Farberow & Edwin S. Shneidman, The Logic of Suicide, in The Psychology of Suicide 63–71 (Farberow et al. eds., 1970) (describing the fallacies in belief systems of individuals who commit or attempt to commit suicide); Ruth Stein, Evil in Love and as Liberation, in Terrorism, Jihad, and Sacred Vengeance 41–55 (Boyd et al. eds., 2004) (describing how killing is an attempt

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Since time began the dead alone know peace. Life is but melting snow. Kanete naki mi koso yasukere. yuki no michi. (Nandai; d. 1817)57

The Japanese writer Yukio Mishima also committed suicide for the emperor, using a Japanese sword to open his bowels in the name of national and cultural salvation.58 His rhetoric seems rational to those who decried the failure of Japan to protect its people and culture and believed that the defeat of the emperor and acquiescence to the imposition of an American constitution were opprobrious.59 If we believe Mishima’s rhetoric, one can die a samurai warrior for Japan, a superlatively rational person in control of his faculties, who chooses to sacrifice himself for a cause.60 If one examines Mishima’s life, novels, essays, and speeches, however, what emerges is a picture of someone who utilized political and nationalistic clichés, bombast, gasconade, and homiletics to gratify obsessive sadomasochistic desires, while cloaking them in the aura of proud nobility and social sacrifice.61 He was a man infatuated with violence, homosexual murder, pederastic rape, disembowelment (of himself, others, lovers, and kittens), and the sexual ecstasies of suicide long before politics aroused his interest. Death was his first and last orgasm.62 There is far more to thanatology than Silke would seem to know—far deeper and more opaque motives for suicide.63 I would argue that death is never death plain to fulfill a fantasy and eliminate conflicting emotions); C.W. Wahl, The Fear of Death, 21 Bull. of the Menninger Clinic 214, 214–22 (1997) (discussing the roles of hatred, love of God, and fear in the psyche of terrorists). 57

Poem by Nandai, in Japanese Death Poems 249 (Yoel Hoffman ed., 1986).

58

John Nathan, A Biography, 279–80 (2000); See also Piven, supra note 59, at 92–95.

59

Piven, supra note 59, at 120–23.

60

Id. at 121.

61

Id. at 246.

62

According to his autobiographical novel Confessions of a Mask (1949), Mishima achieved his first orgasm while looking at Guido Reni’s painting of Saint Sebastian being penetrated by arrows. Mishima’s erotic obsession with penetrating and being penetrated, murdered, and eviscerated lends his actual death a sexual color. Nathan, supra note 61, at 95; See also Piven, supra note 59, at 40–41.

63

Aside from this, there is considerable evidence that many kamikaze pilots were far more ambivalent about their missions than we imagine. Emiko Ohnuki-Tierney, Kamikaze, Cherry Blossoms, and Nationalists: The Militarization of Aesthetics in Japanese History 238 (2002).

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and simple; death is never an idea devoid of profound psychological significance. One can pretend death is insignificant, a common fact of existence, or something one accepts rationally and without deeper feelings, but there is considerable evidence that the awareness of death—how it is conceived, imagined, denied, and displaced—has a crucial impact on psychological functioning, including its fundamental coalescence with worldview, religion, politics, violence, and psychopathology.64 The elusive and symbolic meaning of death for suicide bombers is discussed below, but for now, this section will focus on the importance of recognizing the intricacies of human motivation beyond rationality and mere strategy. Compelling arguments have been made for the strategic use of suicide missions, but this does not preclude other over-determined emotions and motives. This returns us to the problem, then, of determining the “real” motives of terrorists, as though isolating the political causes annulled or attenuated the theological significance, rendered other motives irrelevant, and all other explanations defunct. Despite the flurry of encomia for Pape’s work, for instance, it is susceptible to a number of devastating criticisms, including misrepresentations of religiosity among terror groups and distortions of the statistical data. Roberts, for instance, demonstrates how the Tamil Tigers are not predominantly secular, mobilizing “both the Hindu majority and a significant Christian minority within the Sri Lankan Tamil population via modalities that are deeply rooted in the lifestyles and religious practices of Tamils in India and Sri Lanka.”65 Current support for the argument focusing on secular and strategic aspects of suicide bombing does not take sufficient account of the profuse theological language of numerous terrorist organizations and leaders. As Hafez contends: [S]trategy alone cannot explain the decision of individuals to accept the role of martyrs. . . . Strategy may explain the recruiter’s logic in the selection of suicidal tactics, but not the rationality of the bombers themselves. To probe the motivations of individual bombers, we need to look beyond strategic calculations and into the realm of cultural frameworks and religious appeals.66

64

See generally Robert Jay Lifton, The Broken Connection: On Death and the Continuity of Life (American Psychiatric Press 1996) (1983); Death and Denial: Interdisciplinary Perspectives on the Legacy of Ernest Becker (2002); Daniel Liechty, Transference and Transcendence: Ernest Becker’s Contribution to Psychotherapy (1995); The Death Anxiety Handbook (Robert A. Neimeyer ed., 1994); Irvin D. Yalom, Existential Psychotherapy (1980); Marvin Hurvich, The Place of Annihilation Anxieties in Psychoanalytic Theory, 51 J. Am. Psychoanalytic Ass’n 2, 579.

65

Need to contact Prof. Piven for this source (p. 533).

66

See Hafez, Manufacturing Human Bombs, supra note 3, at 5; See also Hafez, supra note 6, at 181.

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Palestinian martyrs are celebrated, honored, and publicized on murals and posters. Wills and final letters reveal the joy in martyrdom and exaltation of God.67 My last wish to you my family is that none of you should weep in my procession to heaven. Indeed, distribute dates and ululate in the wedding of martyrdom. Love for jihad and martyrdom has come to possess my life, my being, my feelings, my heart, and my senses. Dear Father: If I do not defend my religion, my land and holy sites . . . then who will liberate the land and the holy places? . . . We only die once, so let it be for the sake of God. May our blood become the light that shows the way toward liberation for those around us. Let us raise the banner of truth, the banner of Islam. I ask God almighty that my martyrdom is a message . . . 68

Further, this theological language is often fanatically apocalyptic, calling not only for political freedom but the extermination of entire populations in the name of God.69 Such terrorist discourse invokes divine justification for mass murder, demands obedience from adherents under the auspices of divine judgment, threatens dissenters with divine wrath, invokes Qur’anic edicts to sanctify its pronouncements, and claims that mass murder will be inflicted through the arm of God.70 To ignore the profusion of such theologically fanatical discourse is to eradicate the actual words of many terrorists. There is indeed political oppression, and there are strategic motives, but the discourse of bin Laden, the 9/11 hijackers, Al Qaeda, and Palestinian suicide bombers is explicitly theological, espousing divine retribution, slaughter, martyrdom, and immortality. This article seeks a psychological understanding of both the theological fantasies expressed by Muslim suicide bombers, and a deconstruction of terrorist motivation beyond the strategic agenda. PSYCHOANALYTIC AND PSYCHOHISTORIC PERSPECTIVE The strategic aspects of suicide bombing are the conscious purpose. In psychoanalytic terms, the conscious purpose is manifest content. It is a facade, a surface, a caliginous veil that obscures the elusive life beneath. This does not mean that conscious motives must be false or dishonest, but this is often the case. Conscious rationales often frame (and distort) the most irrational, chaotic, and ulterior motives so they may appear rational, logical, justifiable, moral, and heroic, disguising their 67

See Hafez, supra note 6, at 175–77; See also Siamak Movahedi, Death, Fantasy, and the Politics of Self-Destruction, in The Psychology of Death in Fantasy and History 13, ( Jerry S. Piven, ed., 2004).

68

Hafez, supra note 3, at 26.

69

See id.

70

See id. at 26–27.

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actual purposes to avoid the humiliating appearance of sordidness and irrationality. Conscious explanation is often mythologization of oneself and transforms the unknown or ignoble into noble and heroic choice before oneself and society.71 One’s personal mythology situates a person in his own fantasy and narrative, a fiction that makes the self acceptable to oneself and others, makes one a hero in his own story, glosses over aspects of the self one wishes to disavow, and reorders reality and memory to conform to one’s wishes and needs.72 To be psychoanalytic means recognizing that there are other motives than one knows, or even wishes to know. Verily, the lies people tell themselves to disguise their motives and to appear more noble and rational protect the ego against shame and depredation, transforming injury and rage into heroism, and hence one defends and nurtures one’s deceptions as the means of rescuing oneself from ignominy.73 This is why Becker calls such deceptions “vital lies.”74 One should nevertheless resist the temptation to assume that any conscious purpose is only a lie, and should one expose the deception, there could be a moment of pure unconcealment.75 A psychoanalytic understanding recognizes the immensely tangled complexity of motivation, that ideas and events are not merely conscious and rational but are a conglomeration of fantasies, inner conflicts, ghosts of the past compelling present action and projecting past perceptions, archaic relations that determine the way we experience and distort the world. The present can be the unconscious recreation of past relationships and the compulsion to repeat and resolve lost scenarios by inflicting them on unknowing surrogates and victims. As Movahedi writes: Constructive or destructive engagements with the world are symbolic expressions of inner struggles that seek resolution in relation to the internal objects. Self-destructive and dangerous acts may be initiated as a form of symbolic dialogue with a universe that has failed to validate the self. Such acts may simultaneously serve as a symbolic ritual for disentanglement from a particular perceived entrapment in the world.76

In addition to the strategic value of suicide bombing, then, the psychoanalytic question might be what emotional value there might be in dying—what death performs not only ideologically, but unconsciously.

71

See Peter Homans, Jung in Context 29 (Univ. of Chicago Press 2d ed., 1995); Kris Ernst, The Personal Myth, 4 J. Am. Psychoanalytic Ass’n 653.

72

See Ernest Becker, The Birth and Death of Meaning 47–50 (1971); Jerry S. Piven, The Madness and Perversion of Yukio Mishima 231–41 (2004) (discussing Mishima’s psychology and conception of his own self, which was based on fantasy).

73

Are You Considering Psychoanalysis? (Karen Horney ed., 1946) 9–14.

74

Becker, supra note 76, at 47–66.

75

See Barnaby B. Barratt, Psychoanalysis and the Postmodern Impulse: Knowing and Being Since Freud’s Psychology 180 (1993).

76

Movahedi, supra note 71, at 30.

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One naturally asks why, among the vast range of possibilities, suicide is deemed most heroic. Suicide bombers are clearly not the only people to consider selfsacrifice heroic, and many traditions romanticize or even divinize the hero who hurls himself into the jaws of death. The hero may be defined as one who courageously defies death, or even overcomes it through daring and prowess. The hero is willing to descend into the underworld and brave abjection for a higher cause, and his willingness to lay down his own life is valued as the most altruistic act of surrender to others. Some would even suggest that we value those who sacrifice themselves because they surrender to death willingly, so that we may feel safe from the chaotic contagion of violence and catastrophe. We may need scapegoats to siphon and contain our terror and malice, and thus we love and sanctify such a heroic and willing sacrifice. There is compelling evidence that even in military circumstances— where leaders knew there would be more effective tactics—men were marched straight into death. The death of the other is our immunity bath from mortality. Few, however, exult self-sacrifice for its own sake, adore soldiers for committing blatantly suicidal acts, or consider the warrior who lives a shameful failure. Beit-Hallahmi writes that “patriotic self-sacrifice makes sense and is idealized, but most patriots don’t want to die in war and most believers don’t want to be martyrs.”77 The soldier who dies to save others, or who volunteers for a dangerous mission, is different from the warrior whose ultimate purpose is self-obliteration. Thus, death as consequence and death as purpose must be distinguished. If suicide is not the only choice, the final option after all others have been exhausted, or even the most effective way of killing or terrorizing people, one should ask why the idea of self-murder is so enticing. I suggest here, contra Pape’s view that suicide bombing is geometrically more effective than other terroristic strategies,78 that there are other things that must be factored into the equation of what the most efficient means of death might be.79 For instance, one must question how effective suicide bombing is, when in fact the military reprisals are so devastating and kill so many innocent victims including women and children. Palestinian suicide bombers are in no danger of eliminating the Jewish population, but they do invite the retaliatory persecution, immiseration, and annihilation of their own people. How efficient is that? One could claim that the entire community is prepared to die, and rejoices in their own martyrdom, but then there would be no cries of agony

77

Benjamin Beit-Hallahmi, The Return of Martyrdom: Honour, Death, and Immortality, in Religious Fundamentalism, and Political Extremism 11, 24 (Leonard Weinberg & Ami Pedahzur eds., 2004).

78

Robert A. Pape, Dying to Win: The Strategic Logic of Suicide Terrorism 61–76 (2005).

79

One could also ask how suicide bombers came to employ suicide, since they did not do empirical studies to decide what was most effective. See id.

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or injustice, and no demand for such violence to cease. The reality is that Palestinians are miserable and suffer unimaginable humiliation and anguish from military reprisals, and this cannot be ignored when determining what is effective strategy. Actually, the entire process is cyclical and rife with fantasy, for oppression breeds terroristic responses, which breed retaliation vastly more atrocious, which then becomes further justification for terrorism. The Palestinians are aware that suicide bombing leads to military strikes, but the military strikes then become proof of oppression. Psychologically, this is an invitation to victimization that provides the oppressed with proof or moral superiority and the wickedness of the enemy. It is what Moses-Hrushovski calls “deployment;” the orchestration of one’s own victimization to prove the other evil and purify the self of guilt, shame, culpability, or self-loathing.80 Here the suicide bomber loves his martyrdom and moral victory far more than any innocent women or children in his own community whom he purports to protect.81 The community knows that such death and mutilation will be the consequence, yet they protest reprisal for acts they rejoiced as though their reprisal was righteous but their enemy’s purely unjust.82 That process of repeatedly disavowing the fact that one initiated the very act that led to the reprisal is a quintessential transference that performs a crucial psychological function. It does not mean they deserve it. It means their moral claims are mysteriously inconsistent with acts they know will breed more suffering for themselves. It is saying: How dare you retaliate when my act of murder was justified? I will murder again. How dare you retaliate? You are evil. And so on. The center does not hold, and thus one suspects in this compulsive repetition, a scenario whereby victimization is unconsciously invited as a path to redress humiliation, proving the enemy evil and justifying murder and one’s own death. In this sense, those who invite reprisal nurture it and verily thrive on it despite their cries of injustice.83 The very strategy of suicide bombers thus contains deeper psychological satisfactions and processes than merely killing or terrifying. The projection of evil exceeds mapping illusory qualities onto others, or even attributing one’s own illicit motives to them. As Grotstein says, projection is also projective identification.84 The projection transfers rage and the loathsome aspects of the self to the other in order to murder oneself and purify the self of badness. It also seeks to evacuate abjection onto the other, to render him or her as humiliated and abject as oneself. It forces a corresponding introjection on the recipients of violence, and its purpose is filling 80

Rena Moses-Hrushovski, Deployment 3–4 (1994).

81

Pape, supra note 82, at 187–98.

82

Id.

83

Cf. Robins & Post, supra note 50, at 68.

84

See James S. Grostein, Splitting and Projective Identification 143–44, 154–55 (1981).

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living victims with one’s own horror, defeating and conquering by reducing them to paroxysms of terror. Davis states: Terror’s origin is a feeling of inner powerlessness. Its purpose is to reverse that condition by reducing others to it. At the center of the terrorist’s psyche one invariably finds an overpowering presence: that of a malevolent, destructive other who has a command over the psyche more complete than that of the most extreme super-ego. . . . The terrorist’s inner world is one of ceaseless persecution and unbridled cruelty. The malevolent other has reduced the psyche to a condition of abjection; i.e., the utter loss of any possible identity in a horror within that cannot be overcome. Humiliations have eradicated the ability to sustain any positive feelings toward oneself. One’s inner world is defined by a single reality: cruelty. That cruelty has produced the only possible result: self-hatred. The malevolent other has shattered every other possibility of psychic cohesion and identity, rendering the inner world one permanently tottering on the brink of self-fragmentation and psychotic selfdissolution. Only one route to an identity remains. Empowerment through hate, externalizing the hate one has been made to feel toward oneself by projecting it onto others. Power is the only reality and its abiding purpose is the prosecution of cruelty. Everything else is a sign of weakness. . . . Self-brutalization provides the only safety from the malevolent force that presides over one’s psyche. There’s only one solution to one’s condition. Wounds must be turned into weapons. Caught in that project, a bitter necessity has seized one’s being: to evacuate one’s inner condition by finding those objects fitted to receive its projections. . . . Cruelty proves that one is no longer a weak victim but in fact one of the truly strong who’ve triumphed over the force that once had power over them.85

It should be noted that for Davis, the powerlessness issues not only from political but also cultural oppression, a socialization process of shame and humiliation descending from one’s own parents and relations.86 For Davis, it is the remorselessly cruel and punitive installation of moral values that wounds the self so drastically and establishes that malevolent inner persecutor and an intrapsychic state of self-hatred and punishment.87 This does not omit the unimaginable abjection of living in squalor, when an occupying government continually employs its military to inflict humiliation, depredation, and terror.88 It does, however, emphasize other aspects of the psychological process that do not originate solely in political oppression. Davis continues: Such is the genius of humiliation and cruelty: to make a person feel contempt for themselves. . . .

85

Walter A. Davis, Death’s Dream Kingdom: The American Psyche Since 9–11, at 154–44 (2006).

86

Id.

87

Id.

88

Id.

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Psychological cruelty is the attempt to bring the other to a condition where they willingly sacrifice the last thread of their self-respect in order to escape the threat of further humiliation. . . . The founding feeling of inner powerlessness has transformed itself into a feeling of boundless, unrestrained power. . . . A deadly inner peace descends on the terrorist.89

If paranoia and delusion have become part of the psychic architecture, they are therefore the consequence of manifold historic and social trauma, a life of persecution, misery, and abjection, and an existence of Kurtzian horror witnessing relentless indignation, suffering, and death. But it is also a recuperation of autonomy from helplessness and victimization. One can perceive paranoia and delusion as consequences of injury and psychological impairment, but this omits the way fantasy, violence, and self-obliteration can transform humiliation and defeat into triumph and victory. As Jacobsen says of suicide, it can be a reclamation from fate and a way of repossessing one’s body, identity, and life when one feels dispossessed, controlled, or enslaved.90 Once again, one might ask why physical autonomy requires suicide. The choice may or may not be the only viable option. Suicide may well be (mythically or historically) preferable to the Masada Jews than rape, enslavement, or slaughter.91 For others in different circumstances, there may be alternate means of gaining autonomy, including effective violence in which one triumphs by emerging unscathed, trampling others, and defeating death. Some experience euphoria when escaping a deadly situation, looking over the bloodied body of a dead foe, or laughing in the face of death as one slaughters enemies and reaps victorious glory.92 The suicidal tactic may then involve other motives. A clue was already supplied by Davis’ idea of the malevolent inner persecutor.93 If indeed people have suffered individual and social trauma, victimization, and humiliation, there may well be a hidden psychological executioner motivating self-punitive obliteration.94 The hidden executioner is the psychological inner presence of another person who demands masochistic surrender and suffering. Suicides often internalize the idea that others want one to die, and some people become self-punitive when they come to hate themselves, direct anger inward, punish their own inner objects (parents in the psyche), destroy inner objects or inner badness, and pacify others who wish one

89

Id. at 156–57.

90

Edith Jacobson, Depression: Comparative Studies of Normal, Neurotic, and Psychotic Individuals 37 (1971).

91

Recent evidence suggests that the Masada story is a myth, and that the Jews did not in fact commit suicide. Barry Schwartz, The Masada Myth, 102 Am. J. Soc. 1222 (1997).

92

Ernest Becker, Escape from Evil 141, 155 (1975).

93

Id.

94

Stuart S. Asch, Suicide and the Hidden Executioner, in Essential Papers on Suicide 379–96 (Mark J. Goldblatt & John T. Maltsberger eds., 1996).

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to suffer. One might consider the possibility, then, that suicide bombing destroys the self to castigate the self, inflicts violence on the hated self and hated others within the psyche, as well as satiates an inner executioner demanding one’s death. In yet another sense, the murdered enemy becomes a substitute for the hated self. Volkan has described the internalization of trauma that leads to generational unconscious communication of victimization and humiliation.95 Here we have children not only observing victimization, but hearing stories, perceiving the pain and humiliation of parents, identifying with that pain and indignation, and even introjecting that wounded parental presence. In this way, victimization can be transmitted between generations even when the current generation is not actually victimized. If actual oppression continues, this feeds the experience of a persecutory world. In this manner, a hidden executioner is also the unconsciously transmitted humiliation and victimization that arouses hatred and demands retaliation. Actual victimization aside, this inner executioner rouses such rage and violence from within, even if perceived as external to the self, deriving from actual enemies in the present moment. While the generational transmission of trauma may involve the internalization of grievances leading to vengeance against enemies, in some cases it leads to aggression against the self. For if one perceives one’s parents as weak and humiliated, one may be angry at them, ashamed of their castrated impotence and degradation. If internalized, one may then despise oneself as humiliated and castrated. The shadow of the humiliated object has fallen on the ego. Once again, the urge to retaliate represents not only vengeance against others, but a hidden executioner murdering others as surrogate hated self. In a further way, then, suicidal violence represents a response to self-loathing, humiliation, and abjection, a reclamation of physical and spiritual autonomy, and transcendence of oppression and oneself. Not least, the obliteration of self and other transcends death. Mortality is a physical reality, but it is also fantasy and a complex symbol that varies between individuals and cultures. The symbol of death joins multiple meanings that may include the shame and disgust for a vulnerable body that weakens, defecates, and decays, a body of flesh that desires disgusting things like sex with beings considered inferior and contemptible, such as women, whose bodies are reviled as contaminated and castrating in numerous societies. Death is the defeated, castrated, victimized self. Transcending death means transforming the most horrific, terrifying, disgusting, ignoble dread into invulnerability beyond the body, sex, decay, and fear. Physical and emotional death become life and rebirth. Geifman writes: [A]t the moment when the terrorist physically ends his life, psychologically he is already partly dead—self-destroyed in the inner victim-aggressor conflict. A “kind of serene joy, often coupled with an other-worldly smile” that is “sometimes visible on the faces of suicidal homicides prior to their deadly deeds” . . . astonished the Israeli

95 306

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soldiers and the US marines in Lebanon. This is what is so difficult to grasp: terrorists are the individuals emotionally drained to the point of barely being able to sustain their agonizing existence. Their divided selves, ravaged by the on-going “civil war,” are depleted of vitality. They are, in fact, dead-in-life—ghosts. . . . The act of suicide is just the final point—a definitive and conclusive statement affirming death. They are happy and relieved to die; it is exhausting always to pretend being what they are not.96 (Unpubl. manuscr.) A loyal servant who sacrifices himself for people and God, vanquishing evil, the suicide bomber feels joy bathed in the vision of meeting Allah in Paradise. This is why theology is such a crucial aspect of martyrdom and suicide bombing. One need not have theological motives to destroy oneself or the enemy, but the theological fantasy transforms death into rebirth; not just earthly, but cosmic heroism, the love of God, and glory in Paradise with eternal bliss and scores of dark-eyed virgins. A secular death cannot raise the mangled body from gelatinated flesh to eternal life. It cannot be a miraculous apotheosis where the shahid and his God look down triumphantly on the vanquished enemy. A secular suicide may still contain the unconscious fantasy of rebirth, but this is different from a conscious vision of sacred death and rebirth adored by one’s people. Hence the beatific smiles on the faces of suicide bombers as they wade into death. If there is joy in vengeance, there is also euphoria in inflicting the power of God on evil, transcending the flesh with godlike power in iridescent death—an incendiary, a convulsion that bathes slaughtered enemies in one’s own blood and bowels—leaving them behind in a tangled mass of ignoble corpses as one reaps God’s reward beyond death. This is the purpose of the sacred, its very invention. One should not imagine that a life of piety moves people to destroy themselves this way, as though honest Muslims studying the Qur’an and Hadith were blithely pursuing the only path shari’ah cleared for them. Even if they were honestly following Muslim law, this would not explain the fervid ecstasy in the face of death. But they are not merely obeying the law as piously interpreted. Rather terrorists are cloaking vengeance, and the psychological processes outlined above, in theological terms to sanctify death. Some might consider this illegitimate religion or bad faith, hijacking religion to satisfy secular purposes. Rather this may be the quintessential invention of sacredness itself. There are many forms of sacredness, but the genesis of one crucial manifestation of the sacred is the act of consecrating the violent, the horrible, that which arouses overwhelming cadences of terror, ecstasy, and unfathomable destructiveness. People consecrate and make sacred as an act of emotional fervency, magically bestowing transcendental power. The sacred is not inherited, it’s fabricated, endowed, and imparted. One makes an act sacred to give it cosmic importance, and to fabricate rituals, vestments, and obligations and pronounce them numinous, endowing the act with an aura of unworldly magic, imparting divinity and rendering all that falls under its auspices holy. Blessedness is imagined and conferred.

96

Anna Geifman, How are We to Understand Suicide Terrorism? (2004) (unpublished manuscript, on file with Case Western Reserve University School of Law Journal of International Law).

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Violence becomes sacred not only when people wish to rationalize it. People may indeed use theological rhetoric to sanctify the mundane, impart the appearance of holiness to vile acts, provide the façade of righteousness to lascivious and profane motives. This is the mythologization of terror that was discussed previously. The sacred has been devised in the first place to provide that sense of ineluctable, irrevocable transcendent sanctimony, blessedness, and force. Murder has been sanctified since human beings created rituals. Human sacrifice, the scapegoat, the Pharmakon, the Buphonia, and the Aztec flaying of prisoners and princesses, all manner of ritual have been wrought to lavish divinity on death, in the act of slaughter. Blood magically makes life germinate, propitiates bloodthirsty creatures, eliminates evil, purifies and sanctifies the living community inflicting death in the name of God, whom they have invented, conceived, and delivered unto the universe so they may transcend death, satisfy a profound yearning for love, and hallow vengeance in pious obedience to their own fantasy. One might ask not only how people can murder in the name of God, but how Eros can ever be born when human beings are beset by death, misery, horror, and abjection, and are driven to sanctify death as a desperate means to vanquish it. Not bloodshed in the name of God, but Eros divested of violence is the mystery, the moment of grace. For even here the terrorist murders for love, bathes in his love of God, and basks joyously in God’s love. CONCLUSIONS This article seeks to bring psychological and theological depth to the understanding of suicidal terrorism, while addressing prevailing views that deny the religious dimension and focus on its secular strategies and political agendas. The very discourse of terrorism—its fatwas and proclamations, as well as the wills and final letters of suicide bombers—is steeped in a theological language of martyrdom, jihad, immortality, and divine sanction for slaughter. This article further seeks to elucidate psychological elements in suicidal terrorism, unconscious fantasies, wishes for death, punishment of inner objects, acquiescence to inner persecutors, and murder of the vile aspects of the self in the other. Conscious strategies with logically calculated results can still be symbolic representations and repetitious of unconscious scenarios, transferences that rework unconscious material into heroic ideologies. If suicide bombing is an effective strategy, it is also a fantasy of conquering victimization, abjection, and death, a way of hallucinating selfpurification, eternal life, and the love of God in self-murder. Death transforms humiliating defeat into heroic transcendence of emasculation and decay. Explosive dismemberment becomes apotheosis and immortality, ecstatic conquest of one’s persecutors and inner sense of impotence. Certainly these speculations are only a précis of the complexities of suicidal terrorism, and have focused on these specific issues to the omission of other crucial problems. I leave these analyses to other authors and colleagues who are well-equipped to perform the task. One must inquire of the rise in female suicide bombers, their psychological constellations, their relation to secular and religious authority, and the familial and cultural matrices that render their deaths putatively different from the male suicide bombers discussed so far. 308

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It must be remembered that a psychological analysis of suicide terrorism is not a nullification of claims to oppression and injustice. It neither denies the brutal atrocities that have motivated vengeance from victims, nor sanctions them. It in no way condones suicide bombing, the oppression of the Palestinian people, or the political agenda of those who seek to exploit the region while claiming the lives of those in their way.

The preceding analysis does have crucial policy implications. If certain modes of theology and violence are invented to transform depredation and misery into heroic triumph, then one must desist in taking action and making policies based on the subjugation and humiliation of others. This does not mean pretending that we can all just hug and get along, nor that Israel should not protect itself with the appropriate defenses or programs that decrease the receptivity of potential recruits. It does mean that there may be ways of reducing demeaning and incendiary forms of treatment. One of the remarkable lessons from history—putatively ignored by those who seek to conquer and punish their adversaries—is that vengeance begets vengeance. One will never eliminate anger and victimization by putting people in their place, but there are still those who imagine that enough force will subdue and domesticate their foes. Humiliation and injustice never achieve this goal. Rather, one must comprehend how humiliation, insult, and degradation only instigate violence, and policies that subject a people to ignominy can only rouse an ideology of vengeance that ennobles retaliation, humiliation, and terror. One virtually guarantees that the oppressed will be so resentful that they will seek a similarly terrorizing, immiserating redress. One ensures that a defeated, shamed, and unjust death will be transcended by a death made sacred, divine, and beautiful. Anything other than a recognition that our own unjust subjugating practices inspire such sacred violence is not only an avoidance of reality. It invites sacred vengeance. It is not idealistic to expect people to treat one another with respect, to acknowledge injustice on one’s own part, and to grieve with all the victims on either side. It is not a sign of weakness when one shows sorrow for the suffering one caused, though those ashamed of any sign of weakness may feel diminished by anything less than the appearance of complete mastery and strength. And yet only sympathy for victims and genuine displays of remorse can appease the wrath of those who feel so profoundly wronged. Policies must be fashioned in such a way as to stop subjugating and humiliating, and instead, they must demonstrate conciliation and sincere recognition of the other’s humanity. This may be difficult, but the problem is not merely that this is an impractical notion. Rather policymakers are still bent upon revenge, an ideology that feels more pleasure inflicting pain and killing evildoers than waging peace. One may be accused of being a bleeding heart or of being naïve for suggesting that we find ways of acknowledging the humanity of the enemy. Policies may indeed be arduous and elusive, but to those who scoff, I say they lack imagination and the willingness to relinquish their defensive, demeaning, dehumanizing argot of self-righteous superiority. Policies can be made that recognize how humiliation TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008

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will only sanctify vengeance and death, and how others are palpably appeased when respected and treated as human equals. There will always be those who are so terrified of peace, and of surrendering their dehumanizing fantasies, that amity may actually inspire more violence. This article has adumbrated the ways in which suicide bombing inflicts inner agony and persecution upon external enemies, and thus the need for vile adversaries to vanquish, may sometimes be enraged by the prospect of peace. Those who thrive on the perception of their own victimization as a means of evacuating inner wretchedness are only outraged when the enemy disappears or displays some form of human compassion that defies his image as endemically evil. Abolition of the fantasy of evil can induce immense panic and rage, for one has stolen the gift of an illusion, or delusion, that supplies moral sanctimony and hides perception of one’s inner workings, the psychological reward of unknowing oneself, and inflicting the mind’s agony on others with a vengeance. To eliminate another’s illusions is to destroy the sacred beliefs upon which life depends, and that, in itself, arouses ruthless malice raging for revenge. And yet knowing this is crucial as well. Truth be told, conciliation is sometimes perceived as weakness by others, and we have ample evidence that withdrawal is seen as resignation and defeat.97 There is also evidence that recognizing the other’s humanity, and behaving in ways that inspires them to see the humanity of the other, also leads to a diminution of hostility.98 We are left with the reality that peace will never be attained by more violence, and that abjection breeds strategies to revisit excruciating agony on others. Recognition of one’s own culpability and acknowledgement of the other’s wounds may only be the beginning, but it is ineluctably necessary, the sine qua non of peaceable solutions.

97

Robert A. Pape, The Strategic Logic of Suicide Terrorism, 97 Am. Pol. Sci. Rev. 343, 354–55 (2003).

98

See Anat Berko et al., The Moral Infrastructure of Chief Perpetrators of Palestinian Suicidal Terrorism, in 9 Terrorism and the Int’l Community 10 (Shlomo G. Shoha, & Paul Knepper eds., 2005); Mark Juergensmeyer, Terror in the Mind of God: The Global Rise of Religious Violence (2000); Scott Atran, Mishandling Suicide Terrorism, 27 The Washington Q. 67 (2004); James Dingley & Marcello Mollica, The Human Body as a Terrorist Weapon: Hunger Strikes and Suicide Bombers, 30 Stud. in Conflict & Terrorism 459 (2007); Mia M. Bloom, Palestinian Suicide Bombing: Public Support, Market Share, and Outbidding, 119 Pol. Sci. Q, 61 (2004); Linda Butler, Suicide Bombers: Dignity, Despair, and the Need for Hope: An Interview with Eyad El Sarraj, 31 J. of Palestinian Stud. 71 (2002); Eyad El Sarraj, Wounds and Madness: Why We’ve Become Suicide Bombers, Peacework, May 2002, http://www. peaceworkmagazine.org/pwork/0205/020506a.htm; Rohan Gunaratna, The LTTE and Suicide Terrorism, Frontline, Feb. 5, 2000, http://flonnet.com/fl1703/17031060.htm; Mark Harrison, An Economist Looks at Suicide Terrorism, June 5, 2003, http://www.securitymanagement.com/ library/Suicide_Harrison 0803.pdf

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RELATIONAL RIGHTS MASQUERADING AS INDIVIDUAL RIGHTS Hallie Ludsin†

Copyright © 2008 Duke Journal of Gender Law & Policy; Hallie Ludsin. Originally published in Duke Journal of Gender Law and Policy ( January 2008)

ABSTRACT This article seeks to fill a void in rights theory that permitted Western policymakers to support the Iraqi and Afghan constitutions despite the risk they posed to women’s rights. Women’s advocacy efforts focused on the danger of discrimination from constitutional protection of religious law, which policy-makers stated would be countered by the constitutions’ progressive human rights provisions. The concept of discrimination failed to capture the true depth of harm, which is that religious law may exclude women from the protection of some or all of those human rights provisions. This article proposes expanding the theory of relational rights to simply and clearly explain the process that could render constitutionally protected individual rights meaningless to women in these countries. While the impetus for this article was the drafting of the Iraq and Afghan constitutions, this concept applies beyond these examples to any situation in which a country cedes authority over law or law enforcement to unaccountable non-governmental actors and is not limited to the adoption of religious law. Many women’s groups around the world watched the drafting and adoption of the constitutions of Afghanistan and Iraq with horror, futilely trying to explain to policy-makers the danger constitutional protection for religious law poses to women’s rights. The focus of their advocacy efforts was on the obvious discrimination that results from conservative and at this time prevailing interpretations of Shari’a law. Western policy-makers all too easily countered these efforts by pointing to the progressive human rights protections in both constitutions, claiming that they will balance out any detrimental effect of religion in government.1 †

Hallie Ludsin is a Fellow in Human Rights and Terrorism at the Institute for Global Security Law and Policy at Case Western Reserve University School of Law and a legal consultant to the Women’s Centre for Legal Aid and Counselling in Ramallah, West Bank. Thank you to Marius Pieterse, Amos Guiora, William Carter and Ravi Nessman for their insightful comments on this article.

1

See, e.g., President Discusses Iraqi Constitution with Press Pool (August 23, 2005) http:// www.whitehouse.gov/news/releases/2005/08/20050823.html (last visited Nov. 26, 2007); Constitutionalism in the Muslim World: A Conversation With Noah Feldman http://usinfo.state. gov/journals/itdhr/0304/ijde/feldman.htm (last visited February 13, 2007); I use the phrase

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What was missing from women’s advocacy efforts was a coherent conceptual framework to describe the true depth of the injury to women, which far exceeds the threat of discrimination. A new concept is needed to explain how constitutional protection for religious or cultural law can remove the safeguards of many, if not most, of the human rights provisions by making them unenforceable by women.2 To fill this void, I propose an expanded theory of relational rights to simply and clearly express not only the extent of the damage constitutional protection of religious or cultural law can cause to women, but also the process that transforms individual rights into relational rights. By arming women’s groups with a new concept, this article seeks to prevent Western policy-makers from supporting constitutional protection of religious or cultural law without examining women’s concerns more deeply. Part I of this article explains the theory of relational rights and its disparate impact on women. One important point described in this section is that the risk of harm expressed by the concept of relational rights is not limited to Iraq and Afghanistan, to the adoption of religious or cultural law or to women. Part II applies the expanded theory to the Iraqi and Afghan constitutions to illustrate more fully how constitutional entrenchment of religious or cultural law creates the possibility that women will be removed from under the protection of constitutional human rights provisions. It is intended to counter the assumption of Western policy-makers that progressive human rights provisions can neutralize the harm to women. While it is too late for this concept to influence the drafting processes in Iraq and Afghanistan, the understanding of how relational rights work may stop their development in other constitutions. I. RELATIONAL RIGHTS Part I introduces the expanded theory of relational rights to provide a framework for understanding the risk of harm women face from the constitutional protection of religious law in Iraq and Afghanistan. Although ultimately the focus of this article is on the constitutional entrenchment of religious law, Section A develops the theory more generally, describing how it applies in several different contexts.

“Western policy-makers” rather than “American policy-makers” because officials from other Western countries and inter-governmental bodies supported the constitution despite women’s concerns in agreement with their American counterparts. See, e.g., Iraq FAQs: Does the Iraqi constitution erode women’s rights? Foreign and Commonwealth Office, http://www.fco.gov. uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=10828300254 54 (Deflects concerns over the effect of religious personal status law on Iraqi women by noting the democratic process that will lead to the constitution’s adoption). 2

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I purposely use the conditional verb tense in this introduction because progressive interpretations of Shari’a law, such as have occurred in several Muslim countries, could mitigate the dangers inherent in these constitutions. Hoping for such interpretations rather than mandating the protection of all rights for all individuals, however, should not be enough of a basis to justify supporting these constitutions. TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008

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Section B discusses the disparate impact of relational rights on women, which is important to understanding why relational rights are a women’s issue. Section C then examines how group rights, such as the right to be governed by religious or cultural law, elevate the risk that individual rights will become relational. Part I ends in Section D with a brief discussion of one possible method for preventing the constitutional transformation of individual rights into relational rights. A. The Theory Relational rights are rights that are derived from the government, such as from a constitution, legislation or a judicial decision, but that individuals can exercise only with the permission or acquiescence of someone with whom they have a personal relationship.3 Suad Joseph developed the initial concept based on her research and experiences in Lebanon where political circumstances were such that average citizens rarely were able to claim their rights and entitlements from the government without the help of their personal relationships.4 Access to public services and resources depended on a patronage system that forced individuals to develop vast social networks.5 Joseph provided the example of a neighbor who had been unable to obtain certification of his residency in Lebanon from the government. Her neighbor approached her for help. Joseph turned to her friends, who turned to their networks and so on until the neighbor eventually received his papers.6 What should have been a simple and regular task of the government could not be completed without resort to private sources of power. Joseph extrapolated from a wide number of such examples that in Lebanon citizen’s rights, or rights that inhere in individuals as a result of their citizenship in a country, had been transformed into relational rights in which access to them depended on personal networks of power. Joseph’s concept of relational rights can be developed to apply beyond the political transformation of rights through a patronage system to a transformation through law, law enforcement or their failures. In this expanded conception, government action, or in some cases inaction, removes certain areas of law or law enforcement from government oversight so that there is no accountability mechanism with the ability and/or willingness to enforce human rights. Governments create this void

3

Suad Joseph describes relational rights and responsibilities as occurring when “a person’s sense of entitlements and duties came from specific relationships that they built or were built for them.” Suad Joseph, Teaching Rights and Responsibilities: Paradoxes of Globalization and Children’s Citizenship in Lebanon, 38(4) J. Soc. Hist. 1007, 1010 (2005). Cheryl Rubenberg considers them “the outcome of distinctive relationships that people actively construct and work to sustain.” Cheryl A Rubenberg, Palestinian Women: Patriarchy and Resistance in the West Bank 121 (2001).

4

Suad Joseph, Problematizing Gender and Relational Rights: Experiences from Lebanon 1(3) Soc. Pol., 272, 272–73 (1994).

5

Id. at 277–78.

6

Id. at 279.

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either by permitting unaccountable persons or bodies to determine the rules within particular areas of law or by ceding law enforcement to such actors. By surrendering its jurisdiction, the government allows these private actors to determine for others the content of human rights, and therefore access to them, without any meaningful oversight. The concept developed here differs from Joseph’s in that she seems to envision an individual needing a relative or an acquaintance to act essentially as a broker between the government and the individual. The government retains the power to provide the rights while the broker serves as a bridge between the individual and the government necessary to access those rights. Anyone with access to an effective broker then can achieve their rights. In my conception, personal relations are more directly responsible for determining the contours and boundaries of a person’s rights as they actually control them. To clarify the difference, in Joseph’s example, if she and her personal network were unable to help the neighbor access his rights, he could turn to others for help to reach the government. Under my theory, there would be no one else who could help him as the government in effect would have relinquished its power to safeguard and enforce the neighbor’s rights to a specific person or group within his personal network, who then could decide whether and when to enforce or deny those rights. To avoid confusion, where necessary to delineate between Joseph’s theory and mine, I will refer to my concept as the expanded theory of relational rights. Despite these differences, many of the lessons Joseph draws from her concept of relational rights apply also to the expanded theory. The beneficiaries of this now private jurisdiction usually are the most powerful members of the community. Where these rights exist, access to them depends on the strength of a person’s relationships with those more powerful actors and the bargaining chips they hold.7 The dominant by-product of relational rights is the creation of differentiated citizenship under which citizens receive the benefit and privileges of citizenship based on the strength of their social relationships.8 Some people will have full access to their rights, while others will have only some or even no access.9 Citizens are not entitled to the same rights, and the strength of their rights could change as their relationships change.10 Relational rights reinforce any existing social hierarchies or power imbalances between individuals, particularly

7

See, e.g., Rubenberg, supra note 3, at 144–45 (Describing the process of “reality bargaining” that women undertake to receive their rights from or solve their problems with their husbands).

8

For a description of differentiated citizenship, see Will Kymlicka, Multicultural Citizenship 182 (1995).

9

Joseph, supra note 4, at 278 (“Rights were not stable givens. They shifted with people and with situations. Rights changed as relationships transformed – growing stronger, weaker, broader, narrower, more generalized, more specialized. The fluid and shifting character of rights corresponded to the fluid and shifting character of relationships.”)

10 314

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between men and women, a point that is examined more fully in Part I http:// ledgin.com (B) below.11 Relational rights can be created when law or practice gives non-governmental actors the power to interpret or enforce law. In some instances, the unwillingness or inability of a government to enforce law creates relational rights. The lack of enforcement could result from a conscious decision of governmental actors or could be an element of a weak or failing state. The lack of accountability must be systemic and not simply a bad ruling or decision by a government official. The accountability mechanisms in that country must acquiesce to the transfer of the power to determine the content of and/or to enforce rights to private actors. The treatment of domestic violence cases in much of the world demonstrates the conversion of individual rights to relational rights that results from the government’s unwillingness to enforce law—or the systemic relinquishment of enforcement power to non-governmental actors. Throughout the world, police often are reluctant to intervene in domestic violence cases, believing that what goes on between intimate partners and within families is private. For example, in the United States standard protocol for a long time encouraged police officers to establish momentary peace rather than arrest and prosecute abusers or provide for a different long-term solution.12 Such failure to address domestic violence violates women’s right to equal protection of law by treating violence against women differently than violence among any other persons and also violates women’s right to bodily integrity. The harm, however, goes far deeper than the violation of these rights. When police refuse to intervene in “private” family matters, they relinquish control over the enforcement of the right to bodily integrity to the husbands. The husbands then decide whether women can access this right by deciding whether to abuse their wives. Through the government’s acquiescence to this transfer of power, women’s individual right to bodily integrity becomes relational. In other instances, a constitution or legislation expressly assigns such control so that compliance with the rule of law establishes relational rights. South Africa’s customary law of succession illustrates how this process can work. This example is imperfect in that the South African constitution also supplies the solution to relational rights; however it illustrates the potential for constitutions and legislation to create relational rights. Customary law is defined by the South African legislature as “the customs and usages traditionally observed among the indigenous African peoples of South

11

Rubenberg, supra note 3, at 151.

12

David M. Zlotnick, Empowering the Battered Woman: The Use of Criminal Contempt Sanctions to Enforce Civil Protection Orders, 56 Ohio St. L.J. 1153, 1165–1166 (1995). I have chosen to use the example from the United States to illustrate that relational rights are not just a phenomenon of the developing world.

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Africa and which form part of the culture of those peoples.”13 As a system of dispute resolution, it stresses conciliation and mediation to maintain harmony within the community rather than focusing on fault.14 At the center of the fluid rules are the family and community: “[u]nlike most Western legal systems, customary law focuses on the obligation of an individual to the family and collective, rather than on individual personal rights.”15 Article 15(3) of South Africa’s constitution allows the enactment of legislation recognizing traditional systems of personal status or family law.16 The Recognition of Customary Marriages Act of 1998 (“Customary Marriages Act”) was adopted in accordance with Article 15(3) to recognize as legal marriages conducted under African customary law.17 The Customary Marriages Act permits cultural norms to control personal status matters of black South Africans and, by doing so, allows privileged individuals to determine access to rights for their relations. Under Article 7(1) of the Customary Marriages Act, customary law governs the proprietary consequences of customary marriages completed before the statute went into effect.18 One proprietary consequence is that all property is deemed to belong to the husband,19 with the limited exception of personal items such as clothing.20 In exchange for the husband’s “right” to control all marital property, customary law places on men a duty to use the property to care for their wives and families.21 Customary law further prohibits a woman from inheriting property.22 On the death of a husband, any property belonging to the husband, which includes all marital property, passes by intestate succession to the closest and most senior male from her husband’s family, which could be a son, the husband’s brother, his father, grandfather or even his uncle.23 It follows a system of primogeniture. Customary

13

Recognition of Customary Marriages Act 120 of 1998 s. 1(ii).

14

Hallie Ludsin, Cultural Denial: What South Africa’s Treatment of Witchcraft Says for the Future of its Customary Law, 21 Berkeley J Int’l L 62, 70 (2003).

15

Id.

16

S. Afr. Const. 1996. ART. 15(3).

17

Recognition of Customary Marriages Act 120 of 1998.

18

Any customary marriage completed after the date of the enforcement of the Customary Marriage Act is governed by community of property, which means the date of the customary marriage determines property rights. Id. at s. 7(2).

19

Njj Olivier et al., Indigenous Law 148–149 (1995); Ericka Curran & Elsje Bonthuys Customary Law and Domestic Violence in Rural South African Communities, Centre for the Study of Violence and Reconciliation (2004) 2.4.3.

20

Curran & Bonthuys, supra note 19, at 2.3.3.

21

Tw Bennet, A Sourcebook of African Customary Law 236 (1991) (the head of family’s “first obligation is to use house property to maintain the wife and children of the house concerned.”)

22

Olivier, Bekker et al., supra note 19, at 160.

23

Id.

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law places a duty on the heir of the estate to take financial care of the widow, daughters and minor sons for as long as they live on the deceased’s property.24 The heir must meet his obligations regardless of the size and wealth of the estate he inherits.25 If the widow or children eligible for care leave the property, the heir is no longer required to support them and he keeps the husband’s estate.26 The legal adoption of a system of customary law for persons married prior to the statute’s enforcement converts a variety of women’s rights into relational rights. In violation of constitutionally protected equality rights,27 customary law prohibits these married women from owning property with little exception and prohibits them from inheriting based on the men’s perceived social roles as protectors and financial providers for the families.28 It limits women’s right to own private property,29 essentially treating them as legal minors. Further, if widowed women want to benefit from the property to which they contributed, they cannot leave their husband’s property after his death, although the constitution protects the right to freedom of movement.30 The only way they can access their equality, property or freedom of movement rights is with the permission of their husband or their husband’s heir. Rights women should be able to approach the government to enforce, the Customary Marriages Act permits to be determined solely by the woman’s husband or his heir. Fortunately, South Africa’s Constitutional Court undid the customary law of succession’s transformation of individual rights into relational rights using the constitution as its basis; the decision is discussed in Part I (D) below. Relational rights reflect a problem in the process of accessing and enforcing rights. The content of the rights is irrelevant to determining whether rights are relational. What matters is (1) who is responsible for deciding whether a right can be exercised, and (2) whether the person or body is accountable for his or her decisions. Even if the content meets personal or international standards of rights, societies do not want unaccountable sources of power controlling aspects of their lives. 24

Id.

25

Women and Law in Southern Africa Research Project Widowhood, Inheritance Laws, Customs & Practices in Southern Africa (1995) 52.

26

Njj Olivier et al., supra note 20 at 161.(“During her stay in the kraal of her deceased husband or as allocated to he, she and her children are entitled to proper maintenance and use of the assets of the estate, although she has no ownership in respect of that property.”)

27

S. Afr. Const. 1996. ART. 9.

28

Curran & Bonthuys, supra note 19 at 2.2 (describing that at the time the rules were developed and in the context of subsistence economies, the purpose of the rules was to ensure women’s security by guaranteeing that someone would be responsible for their maintenance. Boys and men who are not the first born male child also cannot inherit in a system of primogeniture, which discriminates against them on the basis of birth order rather than their sex.)

29

S. Afr. Const. 1996. ART. 25.

30

Id. at ART. 21.

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The content becomes important, however, when determining who is impacted by the transfer of jurisdiction. Critics of the theory of relational rights might argue that all rights are relational in all countries because access to justice for at least some segment of society always requires the cooperation and support of others. For example, everyone needs financial resources to litigate claims for violations of their rights, with the exception of some criminal defendants who are entitled to free legal representation. Other than in those limited circumstances, the indigent are likely to find that they cannot exercise their rights without the financial support of their personal networks, which could include private legal aid organizations. In another example, women living in patriarchal societies not only are unlikely to have the independent financial resources to fight for their rights, but where rights violations are committed by family members, they may lack the emotional support to sustain what could be a protracted and emotionally-charged battle. What differentiates this article’s conception of relational rights from these examples of barriers to access to justice is whether formal mechanisms of accountability retain the jurisdiction to enforce an individual’s rights. In the examples of the indigent and of women in patriarchal societies, there is an assumption that the courts have the jurisdiction and are willing to adjudicate claims of rights violations for litigants with the financial and emotional wherewithal to file a claim. The expanded theory of relational rights, on the other hand, is premised expressly on the lack of government oversight of rights violations, which means there is no possibility of legal recourse for such violations regardless of an individual’s resources. B. Women and Relational Rights Both men and women can be affected by relational rights, yet their creation typically has a disparate impact on women. While the key to the transformation of individual rights to relational rights is the shifting of the interpretation and/or enforcement of areas of law to private actors, the cause of the harm is the treatment of this jurisdiction as private or outside governmental oversight. Essentially, the handing over of governmental functions to non-governmental actors, whether by will, force or acquiescence, institutes a public-private divide, a concept with which feminist thinkers are only too familiar. The public-private divide is established according to the belief that there are certain aspects of people’s lives that should be protected from government interference, although if a state is failing, it may be created without choice. Typically, the family and home are considered private and therefore protected from outside scrutiny or intervention except to maintain the status quo; the public realm, which consists of government and the economy, are treated as deserving of the full protection of the government.31 Where this public-private divide exists, men are its 31

318

Suzanne A. Kim, Reconstructing Family Privacy 57 Hastings L.J. 557, 568–69 (2006); Susan Moller Okin, Equal Citizenship: Gender ‘Justice and Gender: An Unfinished Debate, TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008

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beneficiaries particularly since retaining the status quo usually means maintaining any existing power imbalances between family members.32 In societies that conform to a traditional model of the family, the husband is treated as head of the household and his decisions as inviolable, including -if necessary -the decision to chastise physically and emotionally his wife and children.33 Male authority and violence within the family and women’s concomitant subordination are protected from government intervention, not the family.34 Women (and children) suffer heavily as a result. In the public sphere, men receive the benefits of government protection from abuses of their rights;35 whereas “sex-based exclusionary laws join with other institutional and ideological constraints to directly limit women’s participation” in that sphere, which means they profit less from public rights.36 As the two examples from the previous section show, the areas of law subject to interpretation and/or enforcement by private actors often follow existing notions of the public-private divide and protect patriarchal control. In the South African example, the only area of law the constitution expressly permits to be governed by religious or cultural law is family law.37 With domestic violence, courts around the world for a long time condoned some forms of physical abuse as the husband’s prerogative as head of the household and because of the concept that the home is

72 Fordham L. Rev. 1537, 1551–1552 (2004); Elizabeth M. Schneider, The Violence of Privacy, 23 Conn. L. Rev. 973, 955 (1991) reprinted in Applications of Feminist Legal Theory to Women’s Lives 388 (D. Kelly Weisberg ed. 1996). 32

Kim, supra note 31, at 571. (“Domestic violence has been viewed as a literal example of power’s influence in family life. Feminists have pointed to the ways in which privacy has reinforced the power of powerful members of families—i.e., husbands and fathers—over less powerful women and children, by ratifying “openly hierarchical” social roles within the family in the guise of nonintervention and freedom.”) The concept of privacy in family matters is not always bad. For example, individuals should be provided the opportunity to make decisions regarding their health, family planning or how they wish to raise their children with little interference from their government. Id. at 995. Elizabeth M. Schneider, The Violence of Privacy, 23 Conn. L. Rev. 973 (1991), reprinted in Applications of Feminist Legal Theory to Women’s Lives 388 (D. Kelly Weisberg ed.1996) See, e.g., Anita L. Allen, Coercing Privacy, 40 Wm. & Mary L. Rev. 723, 725 (1999). Such protection would allow individuals to exercise their autonomy without infringing on the rights of others. Id. The problem with the public-private divide created by relational rights is that it has the opposite effect – it permits men to subordinate women to their interests, denying them their rights.

33

Jennifer C. Nash, From Lavender to Purple: Privacy, Black Women, and Feminist Legal Theory, 11 Cardozo Women’s L.J. 303, 303 (2005).

34

Id.

35

Kim, supra note 31, at 568–69.

36

Schneider, supra note 31, at 388.

37

The provision ensures that a court will not deem religious or cultural family law an inherent violation of the constitution’s freedom of religion clause. It is notable for the fact that it is the only area of religious or cultural law given specific constitutional protection.

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the man’s castle.38 In both instances, jurisdiction over aspects of family relations is ceded to private sources of power, consistent with the divide. Where men and women both suffer from relational rights, men are likely to have greater access to power and therefore to their relational rights. As Joseph described of Lebanon: “[s]tate officials often preferred dealing with and were more likely to be responsive to males and seniors. State officials often set up idiomatic patriarchal relations with those seeking their services - relations that further enhanced the position of males and seniors.”39 As a consequence of the interaction of the patronage system and patriarchy, women found that access to their rights depended on their conformity with social mores.40 Women confronted additional hurdles that did not exist to the same degree or at all for men.41 While Joseph’s description applies to the situation where members of personal networks were necessary to act as brokers to reach the government, the hurdles are the same for women under an expanded theory of relational rights. As described in Part I (A), the jurisdiction transfer typically benefits the more powerful members of society, usually men. As a direct result of patriarchy, which arguably exists everywhere, men prefer to deal with men and are likely to hold them in higher esteem. This greater respect for men translates into greater access to their rights.42 In other cases, men’s rights remain individual rights while women’s are relational, again because of patriarchy. As described in Part I (A), under South African customary laws of marriage and succession and until recently, men retained full access to their property and equality rights while they were given the power to determine women’s access to those rights. The result is the same in the example of domestic violence. While women have only a relational right to bodily integrity, men faced with violence in the public sphere have an individual right the government, through the police, will enforce.43 As this section shows, rarely is the privatization of law enforcement and rights interpretation in the interest of women.

38

Linda C. McClain, Inviolability and Privacy: The Castle, the Sanctuary, and the Body, 7 Yale J.L. & Human, 195, 209–10 (1995).

39

Joseph, supra note 4, at 283.

40

Id. at 282–83.

41

Joseph describes that women often needed the intervention of men as negotiators to achieve their relational rights. Id. at 283.

42

See, e.g., id. Relational rights also can privilege the economic and social elite, regardless of their sex, as their enhanced access to private power may give them greater access to their rights. In doing so, relational rights can exacerbate the inequalities of minority groups and the poor.

43

Other examples of men retaining their individual rights while women’s rights become relational are described in Part II (B) below.

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C. The Special Case of Group Rights The concept of group rights has substantial potential for transforming individual rights into relational rights. Group rights are special protections and entitlements groups receive on the basis of the particular characteristics that define their membership. Group rights can be defined as rights derived from a person’s membership in a group rather than his or her status as an individual; these rights can belong to the group or to the individual as part of his or her membership in the group.44 Numerous countries are struggling with the question of whether to provide groups with the right to organize aspects of their lives according to their religious or cultural beliefs and practices. In societies where the group is in the majority, adoption of religious or cultural laws and practices can be considered part of the democratic decision to allow society to determine how it wishes to be governed. In many countries, group rights reflect the communitarian nature of their societies in which individual rights have never been dominant in the political or legal culture. Where the religious or cultural group is in the minority, typically these groups are advocating for the adoption of some or all of their religious or cultural family law and/or the right to religious or cultural education.45 For minority groups, group rights can provide the opportunity to express culture or religion. They can provide equal access to religion or culture and send the message that their culture or religion is a valued part of their society.46 For both minority and majority groups, group rights can increase their enjoyment of individual rights that can be accessed best as part of a group.47 While there are a variety of criticisms of group rights,48 the concern for purposes of this paper is the extent to which protection of group rights establishes relational rights through the adoption of religious or cultural law into the legal system or as a separate legal system. Religious and cultural practices are problematic when they are based on a division of social roles that creates unequal power relations between members of the group.49 When religious or cultural law codifies these unequal relations, giving some members of the group control over the actions of others,

44

Kymlicka, supra note 8, at 45.

45

See, e.g., Ayelet Shachar, The Puzzle of Interlocking Power Hierarchies: Sharing the Pieces of Jurisdictional Authority, 35 Harv. C.R.-C.L. L. Rev. 385, 387 (2000)(discussing benefits of group rights for minority groups).

46

See, e.g., id. at 391–92.

47

Susan Moller Okin, is Multiculturalism Bad for Women 31 ( Joshua Cohen et. al eds., 1999) (Quoting Will Kymlicka).

48

See, e.g., Kymlicka, supra note 8; Okin, supra note 47, at 47 (quoting Yael Tamir); Shachar, supra note 46.

49

Shachar, supra note 45, at 397–98.

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they create relational rights. South Africa’s customary law as described in Part I (A) provides a clear example of this. Again, women are disproportionately at risk of subordination to the interests of men and the group.50 As Ayelet Shachar explains, “religious traditions often encode within their legal traditions various formal and informal mechanisms for controlling the personal status and sexuality of women, primarily because women play a central and potentially powerful role in symbolically reproducing the collective.”51 This explanation applies equally to cultural traditions. Although group rights risk transforming many individual rights into relational rights, they should not be conflated. Not all group rights create relational rights, even when they result in inequality. If a law based on cultural practice prohibits women from testifying in court, the end result is discrimination not relational rights. The law does not provide anyone with the discretion to refuse women the right to testify, but instead is applied to all women. At least in theory, simply because a country adopts religious or cultural law as the basis of their legal system by itself does not mean that individual rights will be turned into relational rights. Again, relational rights in this context arise when unequal power relations between individuals are adopted into the legal system. Group rights need to be tailored carefully to ensure that their positive goals are not overshadowed by their negative impact—that these rights are protected to allow individuals to express themselves as part of a group and not permitted to create relational rights.52 South Africa offers an example of how to protect group rights without transforming individual rights into relational rights. When the customary law of succession was challenged as a violation of women’s equality, South Africa’s Constitutional Court relied on provisions in the constitution that require customary law to be consistent with the constitution to establish accountability and undo the relational rights.53 It found that primogeniture violated the constitution by “impl[ying] that women are not fit or competent to own and administer property. Its effect is also to subject these women to a status of perpetual minority, placing them automatically under the control of male heirs, simply by virtue of their sex and gender.”54 Many proponents of religious and cultural law argue that placing these laws in a subordinate position to constitutional human rights would lead to their

50

Id. at 396.

51

Id. at 397.

52

Kymlicka, supra note 8, at 34.

53

Bhe v. Magistrate Khayelitsha & Others, 1 BLCR 1, ¶¶ 41–44 read together with ¶ 100 (CC 2005).

54

Id. at 92.

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eradication.55 This discussion implicates the debate surrounding the concepts of universal human rights and cultural relativism. If accountable bodies adopt notions of universal human rights then religious or cultural beliefs and practices that follow different interpretations of those rights will be treated as unconstitutional. If that happens, group rights will be stripped of any meaning.56 These concerns are not related to the question of relational rights, which is a process issue, but instead are focused on the content of rights. For this reason, the paper need not delve further into the debate. The important point for our purposes is that group rights create relational rights when they permit private actors to determine the content of rights for persons within their personal networks without accountability. When that happens, the benefits achieved by group rights are outweighed by the harm to individuals and must be treated as wholly unacceptable. D. The Solution The end result of transforming individual rights into relational rights in many cases is the exclusion of individuals, particularly women, from human rights safeguards, including those expressly protected by a constitution. The most obvious way to reverse the transformation is to eradicate the public-private divide by returning all aspects of governance to the government or placing all areas of law under governmental oversight. How that can be accomplished depends on what is causing jurisdiction over law and/or law enforcement to be removed from the government. Where relational rights are created through law or a constitution, the law or constitution needs to be changed to permit the enforcement of human rights against private actors, ensuring their accountability. Traditionally, constitutions permit individuals to challenge violations of their rights by the government, but not so-called “private” violations of rights.57 For example, a family-owned business in the United States that discriminates against women in hiring violates the law but not the constitution. The power to legislate against such discrimination may derive from the constitution, but these employers currently can be sued only under federal or local statutes because their behavior is not considered state action. The application of constitutional human rights provisions to private actors would change this situation. Individuals would no longer need to rely on the legislature to protect their human rights from “private” violations through legislation, such as in the

55

See, e.g., Titia Loenen, The Equality Clause in the South African Constitution: Some Remarks From a Comparative Perspective 113 Sajhr 401 (1997) (“Because African culture is pervaded by the principle of patriarchy, the gender equality clause now threatens a thorough-going purge of customary law”); AJ Kerr ‘Inheritance in Customary Law Under the Interim Constitution and Under the Present Constitution’ 1998 115 Salj 263, 266–67 (1998).

56

Id.

57

Catherine Phuong, Persecution by Third Parties and European Harmonization of Asylum Policies, 16 Geo. Immigr. L.J. 81, 87 (2001).

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employment example, but instead would be able to turn directly to the constitution to enforce their rights. The accountability of private actors for constitutional human rights violations would fill any gap in government jurisdiction over areas of law and over law enforcement, ensuring the option of formal accountability. An example of a constitutional provision guaranteeing the application of human rights to private actors can be found in South Africa’s constitution. Article 8(2) reads: “A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.”58 In this formulation, not all rights are enforceable against individuals, but only those that seem appropriate. For example, if a constitution protects the socio-economic right to housing, it is unlikely that a court would find that individuals owe that duty to others. However, when jurisdiction over the determination of the content of rights is surrendered to nongovernmental actors, then the application of human rights provisions to those actors would seem appropriate.59 A different solution to correct the problem of relational rights is necessary when they are created because the government is unable or unwilling to enforce individual rights. How to solve these accountability failures is beyond the scope of this article since the focus is on constitutionallycreated relational rights. II. CONSTITUTIONALLY ENTRENCHED RELATIONAL RIGHTS: THE CASES OF IRAQ AND AFGHANISTAN Part II undertakes a more in depth examination of how constitutions can create relational rights to concretize what so far has been described mostly as theory. The reason for focusing on this method of transformation of individual rights into relational rights is that it provides women’s advocates with a framework for describing the harm that can be caused by the constitutional protection of religious or cultural law, a phenomenon that has happened and continues to happen throughout the Middle East,60

58

S. Afr. Const. 1996. ART. 8(2).

59

As Osiatynski explains, critics of the application of human rights to private actors claim it will cause undue strain on interpersonal relationships. Wiktor Osiatynski, Human Rights for the 21st Century, 2000 St. Louis-Warsaw Transatlantic L.J. 29, 41 (2000). The critique misses the point; this concept is intended, among other things, to challenge the status quo in personal relationships by tackling the problem of unequal power within them.

60

A variety of Middle Eastern constitutions protect a role for religious law in their constitutions. Article 9 of the Lebanese constitution guarantees respect for the personal status laws of each religious sect within the country. Leb Const. 1990. ART. 9. Egypt guarantees that “Islamic jurisprudence is the principal (sic) source of legislation.” Egypt Const. 1980. ART. 2. (translated at http://www.uam.es/otroscentros/medina/egypt/egypolcon.htm) Yemen’s constitution contains a similar provision. Yemen Const. 1991. ART. 3 (Islamic Shari’a is the source of all legislation.).

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Africa61 and Asia.62 Using the examples from the Afghan and Iraqi constitutions, Part II is intended to reveal the hidden nature of relational rights to prevent their adoption in future constitutions. Part A describes the premises on which this discussion relies, while Part B examines how the transformation to relational rights is likely to occur in Iraq and Afghanistan. A. The Premises Iraq and Afghanistan’s constitutions protect a role for religion in government while at the same time guaranteeing a variety of progressive individual rights, including the right to equality. A superficial reading of the constitutions allowed Western policy-makers to assert that the human rights provisions insulate women from discrimination and oppression that could result from this role for religion.63 Such a superficial reading obscures the truth, which is that many individual rights become relational rights when the provisions are infused with social, political and legal context. Once rights become relational, individuals no longer benefit from the full protection of the constitution, which challenges the assertions of these policy-makers. The first premise of this analysis is that both constitutions ensure the adoption of religious personal status law in their respective countries. Personal status law governs the areas of marriage, divorce, custody, maintenance and inheritance. The Afghan constitution contains three provisions that read separately and together require the adoption of religious personal status law, at least for a portion of the population but likely for all. Article 131 states that the personal status matters of Shi’a followers, approximately 20% of the population,64 will be governed by

61

Some African constitutions protect customary law institutions that were under threat during colonialism, but often with an express limitation that the laws conform to human rights, such as in South Africa and Namibia. South Africa allows family law to be governed by religious or cultural law if it does not conflict with the constitution or statutory law. S. Afr. Const. 1996. ART. 15(3). Namibia allows customary law to govern where it has not been repealed by the legislature and it does not conflict with the constitution. Nabim.Const. 1990. ART. 66.

62

The Constitution of Afghanistan adopts religious personal status law, at least in part, which is discussed in Part II(1). The Malaysian constitution protects religious law to the extent that the legislature may make changes to it only if it consults with the government (Malay. Const. 1964. ART. 76) and protects personal status laws from invalidation by the constitution’s equality clause (Malay. Const. 1964. ART. 8(5)(a)). The Constitution appears to expect personal status law to be governed at least in part by religious law. Malay. Const. 1964. Ninth Schedule, List 1(1)(e)(1) East Timor’s constitution permits customary law to govern, but it follows the lead of the African constitutions by requiring customary law to conform to the constitution and legislation. E. Timor Const. 2002. s. 2(4).

63

See supra note 1.

64

Cent. Intelligence Agency, The World Factbook (2007), available at https://www.cia. gov/library/publications/the-world-factbook/geos/af.html#People.(Last visited Jan. 31, 2008).

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Shi’a jurisprudence.65 The purpose of the provision is to protect their minority group rights. At a minimum, the Afghan constitution deprives the legislature of the discretion to determine what law should govern Shi’a personal status matters and limits its ability to adopt a unified code. The constitution does not state explicitly that religious law governs the personal status matters of Sunni Muslims, approximately 80% of the population,66 but it can be inferred from Article 131, which seems to expect that Sunni jurisprudence will be adopted as general legislation.67 Even if Article 131 does not result in the constitutional protection of Sunni personal status law, other provisions can be interpreted to provide that protection. Article 3 states that “no law can be contrary to the beliefs and provisions of the sacred religion of Islam.”68 The provision creates a repugnancy clause that requires all legislation to be measured against the moral and religious standards established by Islam; those that do not measure up will be deemed a violation of the constitution.69 Article 3 removes at least some legislative freedom in all areas, including personal status law. Islam again is used as a measuring stick for governmental and individual behavior, this time specifically related to the family, in Article 54. This provision guarantees that the state will protect the well-being of the family including by eliminating “traditions contrary to the principles of sacred religion of Islam.”70 It seems intended to target traditional practices that are part of Afghanistan’s customary law or informal legal system that serves as the de facto legal system for the majority of Afghanis,71 but it could be used against more “progressive” traditions as well. Article 54 expresses the intention to subject family practices to religious scrutiny.72 While the legislature may retain the ability to enact personal status legislation, as a result of these repugnancy clauses, it appears their powers may be restricted mostly to process related legislation. Articles 3 and 54 strongly suggest that the substance of personal status law must be determined by religion. Together, these three provisions likely require the adoption of religious

65

Afg. Const. 2004. ART. 131.

66

Cent. Intelligence Agency, supra note 64.

67

See, e.g., Amin Tarzi, Assessing the Draft Constitution (Part 1): Presidential Powers and the Role of Religion 2 Afghanistan Report Vol. 39 (2003).

68

Afg. Const. 2004. ART 3.

69

Article 3 has the same effect as the provisions in many Muslim constitutions that explicitly proclaim that Islam, Shari’a or its principles are a major source of law. Nathan Brown, Carnegie Endowment for International Peace, Debating Islam in Post-Baathist Iraq 2–3 (2005), available at http://www.carnegieendowment.org/publications/index.cfm?fa=print&id= 16619. Such a provision is unnecessary in the Afghan constitution since requiring legislation to be consistent with Islam effectively establishes it as a main source of law.

70

Afg. Const. 2004. ART 3.

71

Int’l Legal Found., The Customary Laws of Afghanistan 4 (2004).

72

Afg. Const. 2004. ART 54.

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personal status law for all Afghanis, while Article 131 guarantees it at least for Shiites. In Iraq, the constitution could read as though individual Iraqis will have a choice whether to have their family relations governed by religious family law or by civil law practices.73 When reading the Iraq Constitution as a whole, however, it is possible to read Article 39 as requiring religious authority to govern this area of law. Article 39 reads: “Iraqis are free in their commitment to their personal status according to their religions, sects, beliefs, or choices. This shall be regulated by law.” The provision protects the group rights of the majority Muslim population, as well as those of minority religious groups, by allowing them to be governed by their religious personal status law.74 At a minimum, it is impossible for the legislature to adopt a unified civil personal status law that applies to all of its citizens. Whether Iraqis will be able to choose to be governed by a civil personal status law depends on how the constitution is interpreted.75 Article 2(1)(a) of the constitution does not permit legislation to contradict the established provisions of Islam.76 As with the Afghan constitution, some elements of Islam will be used as a measuring stick for the constitutionality of legislation.77 As to whether personal status laws are among those established provisions, consider that most Arab Muslim countries adopt some form of religious personal status law.78 Governments are

73

See, e.g., Nathan J. Brown, The Final Draft of the Iraqi Constitution: Analysis and Commentary, Carnegie Endowment for International Peace (2005) 6.

74

97% of Iraqis are Muslim. Cent. Intelligence Agency, The World Factbook (2007), available at https://www.cia.gov/library/publications/the-world-factbook/print/iz.html.

75

Even if arguably Iraqis can opt out of religious personal status law, societal pressure makes it unlikely that many Iraqis will choose to do so, at least in the near future. Family pressure likely will push many individuals to follow religious personal status law, while unequal power relations may be enough for men to force women to “choose” religious personal status law.

76

Ir. Const. 2005. Article 2 also states that Islam is a fundamental source of legislation. Ir. Const. 2005. ART 2(1). Describing Islam or some aspect of it as a source of law is a common provision throughout the Muslim world, although the exact language differs between constitutions. Brown, supra note 73, at 2–3. Nathan Brown states that at its tamest, the description of Islam as a fundamental source of law provides moral support to legislators who wish to ground legislation in religious law. Id. at 3. At the other end of the possibility spectrum, it could be read to require the wholesale adoption of Shari’a law into the legal system.

77

Article 2 of the Iraqi constitution also uses principles of democracy and the fundamental rights and freedoms protected in the constitution as measuring sticks. Ir. Const. 2005. ART. 2(b) and (c).

78

Mark A. Drumbl, Rights, Culture, and Crime: The Role of Rule of Law for the Women of Afghanistan, 42 Colum. J. Transnat’l L. 349, 368 (2004). See also Abou El Fadl, et al., infra. See, e.g., Nathan J. Brown, The Final Draft of the Iraqi Constitution: Analysis and Commentary, Carnegie Endowment for International Peace 6 (2005); see also Khaled M. Abou El Fadl, Said Arjomand, Nathan Brown, Jerrold Green, Donald Horowitz, Michale Rich, Barnet Rubin, & Birol Yesilda, Democracy And Islam in The New Constitution of Afghanistan 8–9 (Cheryl Benard, Nina Hachigian eds.,) (RAND) (2003).

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reluctant to deviate from Shari’a law in that area,79 while political and economic aspects of Shari’a law are regularly discarded.80 Whether secular family law will be treated as contradictory to established provisions of Islam again will depend on the views of the legislature and judiciary. Article 29(1)(a) of the Iraqi constitution further supports that the Iraqi government will impose religion within the area of personal status law as the provision promises to preserve the religious values of the family.81 What better way to ensure those values than apply religious personal status law? Read as a whole, the Iraqi constitution makes it impossible for the elected legislature to eradicate religious personal status law and likely mandates its adoption.82 The second premise of this discussion is that conservative interpretations of Shari’a personal status law will apply in both countries, at least for the time being. Before describing these interpretations, it is important to note that Islam is not a monolithic religion. There is no one set of rules of Islam, rather religious beliefs and Shari’a law differ by sect and by schools of thought within these sects. This discussion relies on conservative interpretations of the law because at this time they are the prevailing interpretations.83 While several countries that

79

See, e.g., ‘Divorced from Justice: Women’s Unequal Access to Divorce in Egypt’ Human Rights Watch (2004)11. While many governments are reluctant to legislate secular personal status law, some have successfully reformed legislation to create greater rights for women within the framework of religion. See, e.g., Amna Arshad, Ijtihad as a Tool for Islamic Legal Reform: Advancing Women’s Rights in Morocco, 16-Wtr Kan. J.L. & Pub. Pol’y 129 (2006–2007).

80

Drumbl, supra note 78, at 368.

81

Ir. Const. 2005. ART. 29(1)(a).

82

Complicating matters, the Iraqi constitution also seems to restrict the national government from enacting a uniform personal status law or maintaining the current one. Unless an area of law is designated as within the sole purview of the national government, regional governments are permitted to pass inconsistent laws that take precedence over national laws. Ir. Const. art. 117(2). Legislative control of personal status law has not been reserved for the national government, which means that political and communal leaders in each region can exercise that power freely. Critics of this division of power explain: “By devolving family law to the regions, the state accommodates social and religious differences, while encouraging the loyalty of communal leaders to the state. Family law becomes part of a ‘social contract,’ trading communal autonomy for women’s rights.” Nadje Al-Ali and Nicola Pratt, Women in Iraq: Beyond the Rhetoric MiddleEast Research and Information Project 8 (2006), http://www. acttogether.org/MERIParticleSummer06.pdf.

83

See, e.g., Susan Otterman, Islam: Governing under Sharia, Council on Foreign Relations (2005), http://www.cfr.org/publication/8034/. (“Most Middle Eastern countries continue to incorporate some traditional sharia into their legal codes, especially in the area of personal-status law, which governs marriage, divorce, and inheritance. In other areas of the law, such as the criminal code, most Islamic nations have attempted to limit the application of traditional sharia, replacing it either with secular legislation or with laws characterized as modern interpretations of sharia.”).

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follow Islamic family law have amended their legislation toward more progressive interpretations of religious texts,84 which includes Baathist Iraq, the political tides in Iraq and Afghanistan favor classical interpretations. Research in Afghanistan shows that the judiciary applies classical interpretations of personal status law.85 The Max Planck Institute concluded that despite a personal status statute that combines mostly the Hanafi school of Sunni thought with improvements taken from other schools: “In practice, the judges . . . bypass statutory law and apply their interpretation of the hanafi rules, as far as they know them, thus putting aside all improvements that had been incorporated into the code as compared to the classical hanafi rules.”86 As for Iraq, current personal status legislation is relatively progressive. It restricts polygamy, punishes coercing women to marry and revokes men’s right to unilaterally and extra-judicially divorce their wives, among other breaks from classical religious law.87 Women’s rights advocates fear, however, that Iraq will replace the current code with stricter religious rules, undoing these departures from traditional practices.88 The Iraqi Governing Council, which served as an advisory board to the US-led Coalition Provisional Authority (CPA), attempted to do just that shortly

84

For example, Tunisia eliminated a man’s right to unilaterally declare a divorce extra-judicially as well as his right to participate in a polygynous marriage, justifying both changes on religious prescriptions. Michele Brandt and Jeff rey A. Kaplan, The Tension between Women’s Rights and Religious Rights: Reservations to CEDAW by Egypt, Bangladesh and Tunisia, 12 J.L. & Relig. 105, 129 (1995–1996). Morocco also limited the right to polygyny using progressive interpretations of religious law. Morocco Personal Status Law (2004) Preamble and ART. 40 (English Translation by Global Rights, at http://www.hrea.org/moudawana.html (last visited September 3, 2006)).

85

The judiciary’s conservatism likely will remain unchallenged. As Deniz Kandiyoti describes, proponents of centralizing Afghanistan’s government rely heavily on Islamic identity and law as a unifying force to overcome communal loyalties. Deniz Kandiyoti, Occasional Paper 4: The Politics of Gender and Reconstruction in Afghanistan, 2005 United Nations Research Inst. for Social Development 12, available at http://www.unrisd.org/unrisd/website/document. nsf/462fc27bd1fce00880256b4a0060d2af/3050be40da5b871cc125704400534a7a/$FILE/ OPGP4.pdf. Conservative notions of what it means to be Muslim become the identity behind which the divided tribal communities can unify. Id.

86

Family Structures and Family Law in Afghanistan, 2005 The Max Planck Inst. for Foreign Private Law and Foreign Private International Law 8, http://www.mpiprivhh.mpg. de/deutsch/Forschung/LaufendeProjekte/Afghanistan/MPI-Report_Family.pdf.

87

Noga Efrati, Negotiating Rights in Iraq: Women and the Personal Status Law, 59(4) The Middle East Journal 577 (2005).

88

See, e.g., Dahr Jamail and Ali Al-Fadhily, Iraq: It’s Hard Being a Woman, Inter Press News Service Agency, Dec. 5 2006, http://ipsnews.net/print.asp?idnews=35718; Graham Usher, Mother Iraq, Al-Ahram Weekly Online Issue No. 679, 26 February–3 March 2004, http:// weekly.ahram.org.eg/2004/679/re9.htm.

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after the fall of the Hussein regime.89 L. Paul Bremer, the head of the CPA at the time, refused to ratify the change.90 The US is no longer in the position to protect personal status law, which remains vulnerable as Islamists increase their power in Iraq. As early as December 2003, the United States Institute for Peace identified that “Iraq seems to be experiencing a religious revival and religious leaders, particularly Shiite leaders, exert increasing political influence.”91 In the December 2005 election, the United Iraqi Alliance (UIA) won a plurality just short of a majority of seats in the National Assembly.92 The UIA is a Shi’a political party umbrella group dominated by two conservative Islamist groups, the Supreme Council of the Islamic Revolution in Iraq (SCIRI) and al-Da’wa. It was under the leadership of a member of SCIRI that the Iraqi Governing Council attempted to revoke the progressive personal status law. The al-Dawa party promised in its campaign that it “would guarantee the family’s status based on Islamic values and the traditional norms of Iraqi society.”93 The UIA’s political leaders appear to be focused on increasing the role of religion in Iraq’s government, although they are not unified on what that entails.94 Kurds, who hold the next largest block in the National Assembly, tend to be more secular, but Islamist ideology is gaining within the Kurdish population.95 The third premise of this discussion is that women’s advocates will not succeed in challenging these conservative interpretations as a violation of the constitution, at least in the near future. The issue boils down to how the judiciaries will treat apparent conflicts between religious laws and human rights protections. The Afghan constitution does not contain a clause stating how to handle such conflicts.96 Iraq’s constitution permits rights to be limited as long as the “limitation or restriction does not violate the essence of the right or freedom.”97 Stripping rights down to their essence could allow for excessive limitations of human rights. An appropriate standard for determining when constitutional rights can be limited should account 89

Al-Ali and Pratt, supra note 82, at 3. The CPA attempted to pass legislation that would revoke the current personal status law and transfer jurisdiction over personal status matters to religious leaders. David Shelby U.S.-Iraq Women’s Network Prepares for Iraqi Elections (2004) http:// usinfo.state.gov/xarchives/display.html?p=washfile-english&y=2004&m=April&x=20040426 174230ndyblehs0.6389734.

90

Id.

91

David Smock, The Role of Religion in Iraqi Politics, Usipeace Briefing, Dec. 23, 2003, http:// www.usip.org/pubs/usipeace_briefings/2003/1223_NBiraq.html.

92

Phebe Marr, Special Report 160: Who Are Iraq’s Leaders? What Do They Want?, 2006 United States Inst. of Peace 12, http://www.usip.org/pubs/specialreports/sr160.pdf.

93

Brown, supra note 73, at 6.

94

Marr, supra note 92, at 15.

95

Id. at 14.

96

See Afg. Const. 2004.

97

Ir. Const. 2005. ART. 44.

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for the importance of the right, the reasons for the restriction, and whether the limitation is justifiable in a democratic, human rights-based country.98 This clause is a problem for all Iraqi citizens, but could prove to be particularly problematic for sharply contested women’s rights. On its own, the fact that religious personal status law is protected expressly in both the Iraqi and Afghan constitutions could be viewed as insulating this area of law from judicial review.99 Separate protection for personal status law without a clear statement that the religious law must conform to the constitutions’ human rights provisions could place it in a protective bubble removed from accountability. To the extent the courts exercise judicial review, they could resolve apparent conflicts by: (1) favoring human rights over religion, (2) favoring religion over human rights, or (3) finding a way to read the provisions as consistent with each other. The requirement that courts use aspects of Islam as a measuring stick for the constitutionality of legislation in both countries suggests that religious law will be presumed to be constitutional. This means the judiciaries would be forced to prefer religion over human rights or find a way to read them as consistent. This conclusion is bolstered by the persistent references to Islam in both constitutions, which shows the intention to permit a role for religion in governance. The Iraqi constitution also requires legislation to conform to fundamental human rights and principles of democracy.100 Placing these requirements in the same article as the religious repugnancy clause suggests that the constitution’s drafters believe that no conflict exists between religious laws and constitutionally protected individual rights.101

98

An example of such a clause can be found in South Africa’s constitution. Article 36, reads: (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including a. the nature of the right; b. the importance of the purpose of the limitation; c. the nature and extent of the limitation; d. the relation between the limitation and its purpose; and e. less restrictive means to achieve the purpose. (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

S. Afr. Const. 1996. 99

Ayelet Shachar, Reshaping the Multicultural Model: Group Accommodation and Individual Rights, 8 Windsor Rev. Legal & Social Issues 83, at 95–99 (1998)(describing how state policy that permits multiculturalism may follow the notion of “family privacy”, which could insulate group practices from governmental intervention even when they violate the rights of group members).

100

ART. 2 (B) and (C).

101

Id. at 2.

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The probable assumption that religious law is constitutional could result in removing personal status law from judicial oversight and accountability. B. The Transformation Keeping in mind the three premises from the previous section, particularly that there will be no governmental oversight of personal status law, the remainder of Part II describes classical interpretations of important aspects of personal status law and how they create relational rights. At times, this section measures religious rules against international human rights law because the paper is intended to influence Western policy-makers who espouse the importance of promoting international human rights protections around the world.102 Once some, if not many, of women’s individual rights are revealed as relational rights or under threat of becoming so, the potential depth of the injury is revealed—which is that Iraq and Afghanistan’s constitutional protection for religious law may remove women from under the safeguards of the constitutions’ human rights provisions. Starting with marriage, men and women with full legal capacity have the right to refuse to marry.103 Under most classical interpretations, a woman cannot marry without her male guardian’s permission.104 A guardian can refuse permission on the basis of a perceived social inequality between the spouses.105 Inequality could refer to differences in lineage, amount of property or piety, among other things.106 No Muslim woman is permitted to marry a non-Muslim man, although Muslim men may take wives that practice a monotheistic religion.107 One explanation for the limitations on women’s choice of spouses is that women need to be protected from making “immature” or “overzealous” decisions.108 Under most schools of thought, 102

See, e.g., President Proclaims Human Rights Day & Bill of Rights Week, Office of the Press Secretary (2001) http://www.whitehouse.gov/news/releases/2001/12/print/20011209.html (describing the importance of “defending international human rights.”; European Union Guidelines on Human Rights Dialogues (2001)4; http://www.consilium.europa.eu/uedocs/ cmsUpload/ 14469EN_HR.pdf (describing the European Union’s policy of promoting international human rights law around the world.).

103

Jamal J. Nasir, The Status of Women Under Islamic Law and Under Modern Islamic Legislation 7 (2nd Ed. 1994). It appears that guardians may have the right to compel minors to marry. Id. at 10, 12; Hammudah ‘Abd Al ‘Ali, The Family Structure in Islam 80 (1977) (describing that a guardian may force a marriage when he fears the woman “will engage in sexual misbehavior” or is a minor.).

104

But see Nasir, supra note 103, at 10 (describing that guardianship could be viewed more as agency where the woman in deference to tradition gives her guardian permission to conduct the marriage).

105

Id. at 18. The Hanafi school of Sunni thought may be an exception to this general rule. Abdur Rahman I. Doi, Shari’ah the Islamic Law 142 (1984).

106

Nasir, supra note 103, at 18–19.

107

Id. at 29. Men are not permitted to marry women who are not Christian or Jewish. Id. at 45.

108

Doi, supra note 105, at 123.

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only the guardian can contract a marriage.109 The Hanafi school is the exception as it merely requires his participation.110 These rules of marriage, to the extent they are protected by a constitution and the judiciary, not only treat women as incompetent to make a monumental decision but transform several individual rights into relational rights. Giving guardians the right to refuse a woman’s marriage gives them the power to determine whether women can exercise their equality and autonomy rights, both of which are constitutionally protected in Afghanistan and Iraq.111 True equality requires that women be given the same right as men to choose with whom to enter into marriage.112 Choosing a spouse also is an exercise of an adult’s autonomous decision-making power113 A guardian who defers to the woman’s wishes allows her access to those rights; a guardian who does not, denies them. Men, on the other hand, retain their individual rights to autonomy and equality under these rules, although their marriage rights also are restricted. The restriction that men may marry only women who follow a monotheistic faith is applied equally to all men; no person has the discretion to refuse them the right to marry. Overall, the practice of requiring a guardian to approve women’s marriages wholly denies them the right to equality under the law, gives their guardians control over women’s access to equality and autonomy rights, and stereotypes women, all of which maintain patriarchy and discrimination. Within marriage, Shari’a law creates a system of complementary rights and duties, where men and women receive different rights and owe each other different duties based on their familial and social roles. The differing rights are based on the concept that God gave men and women complementary qualities that create harmony in the family and community and that ultimately their rights and duties, while separate, are equal: God has endowed men and women with different qualities to perform their different tasks. A woman must bear children, for which God has given her the quality of compassion . . . God has endowed man with more than women (twice the inheritance, imama and qada’), making him responsible for her. This is not an honor but a burden

109

Nasir, supra note 103, at 10.

110

Id.

111

Ir. Const. 2005. ART. 14–15; Afg. Const. 2004. ART. 22, 24.

112

The Convention on the Elimination of Discrimination against Women, which establishes international standards for women’s rights, attempts to address these types of rights violations. Article 16 requires governments to provide women with the right to choose whether to marry and to whom. Convention on the Elimination of Discrimination Against Women (CEDAW) ART. 16, Dec.18, 1979.

113

McClain, supra note 38, at 217–218 (quoting the Pennsylvania Supreme Court, which refers to “the right to choose one’s marriage partner . . . [as] a fundamental right protected by the right of privacy.”). See also Edith M. Hofmeister, Women Need Not Apply: Discrimination and the Supreme Court’s Intimate Association Test, 28 U.S.F. L. Rev. 1009, 1015 (1994).

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involving responsibilities and duties.114 Under this system, a man has a duty to maintain his wife financially,115 including providing her with a home.116 The duty of maintenance of a husband is an enforceable right of the wife. In return, the woman owes her husband a duty of obedience, which is a husband’s enforceable right.117 Obedience typically means that the woman must not leave her home without the permission of her husband118 and that she must provide children and sexual relations.119 Disobedience, whether by leaving the home without permission, denying her husband sexual relations or refusing to have children, results in a loss of the woman’s right to maintenance.120 It also may allow a man to “discipline” his wife.121 Both spouses owe each other a duty of respect.122

The system of complementary rights based on a woman’s obligation of obedience violates the guarantee of equality under the law since by definition complementary rights treat men and women differently. This system also transforms a wide variety of women’s individual rights into relational rights. First, access to their equality rights depends on whether the husbands choose to enforce obedience rules. Husbands who allow their wives to work, travel and make reproductive and sexual choices freely, allow women access to their equality rights. Any restriction on those decisions denies women their equality. Obedience rules that require women to exchange sexual relations for maintenance also deprive women of their rights to bodily integrity and to autonomy, establishing them as relational rights since it sets up a situation where the woman’s body belongs to her husband. Under international human rights law, the rights to autonomy and bodily integrity permit all people, including women, to choose whether

114

Yvonne Yazbeck Haddad, “Islam and Gender: Dilemmas in the Changing Arab World” 14 in Yvonne Yazbeck Haddad and John L. Esposito (Eds.) Islam, Gender, and Social Change 1998; but see Lisa Hajjar, Religion, State Power, and Domestic Violence in Muslim Societies: A Framework for Comparative Analysis, 29 Law & Soc. Inquiry 1, 7 (2004).

115

Nasir, supra note 103, at 63 (Maintenance includes provision of food, clothing, medicine, and medical services). ‘Abd Al ‘Ali supra note 103, at 149.

116

Nasir, supra note 103, at 41. Although classical Shari’a law allows for polygyny, men are required to provide a home for each wife without additional wives or family members living there. Id.

117

‘Abd Al ‘Ali, supra note 103, at 148 read together with 172.

118

Nasir, supra note 103, at 41–42; ‘Abd Al ‘Ali, supra note 103, at 172–73.

119

Nasir, supra note 103, at 64–65; Doi, supra note 105, at 205.

120

Nasir, supra note 103, at 66–68. According to one scholar a woman loses her right to maintenance if she expresses an “aversion to her husband, hatred toward him, disinterest in his companionship or attraction to another person.” ‘Abd Al ‘Ali, supra note 103, at 138.

121

Id. at 173.

122

Nasir, supra note 103, at 43.

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and when to have sexual relations.123 They also permit women to choose whether and when to have children.124 Iraq’s constitution guarantees autonomy and bodily integrity rights in Article 15,125 while Afghanistan protects the right to autonomy in Article 24.126 Women subjected to classical interpretations of religious law can exercise these rights only to the extent their husbands permit them. These rights remain individual rights for men, as women do not hold the reciprocal power to require sexual relations or children. Similarly, women’s right to freedom of movement is relational under a system of obedience. Freedom of movement is protected expressly in both the Iraqi and Afghan constitutions. Afghanistan’s constitution promises that “[e]very Afghan shall have the right to travel and settle in any part of the country, except in areas forbidden by law;” and that “[e]very Afghan shall have the right to travel outside Afghanistan and return, according to the provisions of the law.”127 In Article 24, Iraq’s constitution guarantees the “right of free movement, travel, and residence inside and outside Iraq.”128 Despite these constitutional provisions, classical interpretations of religious rules prohibit women from leaving their home or traveling without their husbands’ permission, with few exceptions, establishing a relational right to freedom of movement.129 Men, however, maintain this constitutionally protected, individual right as women have no right to restrict their movement. Obedience rules also transform the individual right to work into a relational right that requires a man’s permission. Both constitutions protect this right,130 yet husbands could prohibit their wives from working or restrict them from working in certain professions or jobs. The relational nature of the right to work could cause severe harm since it ensures women’s dependency on men unless women are independently wealthy. While religious rules require men to meet women’s basic needs, financial control gives men an unfair power advantage in the relationship by giving 123

Yakaré-Oulé Jansen, The Right to Freely have Sex? Beyond Biology: Reproductive Rights and Sexual Sefl-Determination, 40 Akron L. Rev. 311, 317–20 (2007) (discussing right to be free from sexual violence and coercion).

124

Cedaw, supra note 112 ART. 16(1) &16(1)(e) (“States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.”).

125

Ir. Const. 2005.

126

Afg. Const. 2004.

127

Id. at ART. 39.

128

Ir. Const. 2005. ART. 24.

129

Women cannot be prevented from attending religious worship or from visiting their families when a parent is ill. Nasir, supra note 103, at 41–42.

130

Ir. Const. 2005. ART. 22(1); Afg. Const. 2004. ART. 48.

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them the power to require women to bargain for access to resources beyond what the law requires. Men also may be harmed by complementary rights as women do not owe their husbands a reciprocal duty of maintenance regardless of their financial circumstances.131 Classical Shari’a law’s treatment of marital property also transforms women’s constitutional right to own private property into a relational right.132 The religious law views property owned by a married couple as separate property belonging to the husband or the wife, rather than joint property. Women are entitled to control over and to retain their full rights in property they brought into the marriage, received through inheritance, purchased with their separate income or money, and received as dower, except in cases of a Khul divorce as described below.133 All other property belongs to the husband. A woman’s unpaid labor in the home makes no impact on this distribution of property nor does her decision to contribute her money or property to the family, depriving her of her full individual right to own private property. What would be deemed joint marital property under many secular laws, is treated under religious law as belonging solely to the man. Women’s property rights again are relational as they can access them only if their husbands choose to share this property or on divorce relinquish it. Men, on the other hand, retain their individual right to own private property, including the right to sell the property, regardless of their status as married. If a married couple is unhappy, under all interpretations of Shari’a law the couple is allowed to divorce; religious law “does not keep them tied in a loathsome chain to a painful and agonizing position.”134 Classical interpretations give the husband the unilateral and extra-judicial right to declare a divorce.135 Women receive divorces by agreement with their husbands, which is a Khul divorce, or in some countries by court order. Unlike men, women can receive a divorce only with someone else’s permission. Court-ordered divorces typically are hard to obtain and being a victim

131

Nasir, supra note, 103.(defining maintenance as “the lawful right of the wife under a valid marriage contract on certain conditions.”) (emphasis added) See also Lynn Welchman, Islamic Family Law Text and Practice in Palestine (1999) (“The reason why the woman’s work under the classical rules is not held to be a legitimate reason to leave the house is that the husband alone is responsible for his wife’s maintenance; in theory, she has no legal obligation to spend anything on herself or the house, since everything she actually needs is supposed to be provided by the husband.”)

132

Afg. Const. 2004. ART. 40 (protecting right to own private property); Ir. Const. 2005. ART. 23 (protecting right to own private property).

133

See, e.g., Islam, Land and Property Research Series Un Habitat, Paper 5: Muslim Women and Property § 5.2.3 (2005).

134

Doi, supra note 105, at 169.

135

Nasir, supra note 103, at 74–75.

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of domestic violence does not always lead the court to grant a woman a divorce.136 Grounds for judicial divorce differ both between and within Sunni and Shi’a sects.137 They may be limited to proof of the husband’s impotence or insanity138 or expanded to include when there is injury or discord,139 a failure to pay maintenance,140 and abandonment by the husband.141 In a Khul divorce, women relinquish all financial entitlements they receive or should receive from their husbands in exchange for their agreement for a divorce;142 this is considered compensation to the husband according to religious thought.143 Upon marriage, the husband pays a dower to his wife that belongs solely to her. The dower is considered a right of a married woman;144 it is a gift that belongs to her and is considered a sign of respect.145 In many countries and permissible under religious law, the practice is for the man and woman to agree to a specific amount of dower but for the husband to pay only a small portion initially.146 If the couple should divorce or on the death of the husband, the remaining dower becomes payable to the wife; it is a debt he is obligated legally to pay to her. With a Khul divorce, women relinquish their entitlement to that debt as well as to maintenance.147 A husband also may require a woman to give up maintenance payments for their children or even her custody rights in exchange for his consent to the divorce.148

136

See, e.g., Hajjar, supra note 114, at 25; Immigration and Refugee Board of Canada, Nigeria: Availability of Divorce for Women in a Muslim Marriage who have Experience Domestic Abuse, April 9, 2001.

137

Nasir, supra note 103, at 88.

138

Id.

139

Id.

140

Id. at 97.

141

Id. at 100.

142

Id. at 84. Women typically are entitled to maintenance for a short period of time, usually for 3 months after the declaration of a divorce, during which time if the divorce was declared unilaterally by the husband, the husband can rethink his decision. Id. at 107; See also Doi, supra note 105, at 200. If a court finds that the husband’s unilateral divorce was arbitrary, then it may award a woman additional maintenance. Nasir, supra note 103, at 105.

143

Id. at 84–85.

144

Id. at 52.

145

Doi, supra note 105, at 158–59 (“The payment . . . on the part of the husband is an admission of the independence of the wife, for she becomes the owner of the property on her marriage.”).

146

Nasir, supra note 103, at 49.

147

Id. at 84.

148

Id. at 85.

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Overall, the right to divorce under classical religious law violates the requirement of equal treatment under the law. Men can extricate themselves from the marriage with relative freedom whereas women require someone else’s permission. It implies that only men are capable of determining for themselves that they cannot reconcile with their spouses whereas women need the validation of either their husbands or a court. When women cannot prove one of the grounds for a court-ordered divorce or if this option is unavailable, they must bargain for a divorce with their husbands. The process of achieving a Khul divorce makes women’s rights to equality and autonomy relational since access to these rights depends on whether their husbands grant them permission. Women can have the same right to an extra-judicial no-fault divorce and can exercise their decision-making power only if their husbands permit it. Additionally, women’s right to own private property becomes relational. While a dower is treated as a gift to the woman, and therefore as her property, women who utilize the Khul divorce have only a relational right to that property—their right exists as long as their husbands give it to them. Furthermore, women have relational rights to marital property since husbands, considered the owners, can choose whether to share it on divorce. Putting these divorce rules and relational rights in broader perspective, husbands have the power to prohibit their wives from working and on divorce may be able to force the women to relinquish any financial entitlements and all marital property, potentially leaving them destitute. Custody of children on divorce is granted to the woman while a child is young, as it is believed the woman is the appropriate person to look after children in their early years.149 After the child reaches a specified age, custody belongs to the father.150 Some sects or schools restrict women’s custody of boys to when breast-feeding stops and slightly older for girls; others allow custody of both until puberty.151 There are numerous restrictions on women’s rights to custodianship under classical interpretations of Shari’a law. Women cannot act as custodians if they remarry to men not in a close familial relationship to the children.152 The mother and children cannot move far from the father or travel without the father’s permission.153 Other restrictions that different sects or schools impose are that the woman and children must live in an approved residence and must retain their Muslim identity.154

149

Nasir, supra note 103, at 131.

150

Id. at 144.

151

Id.

152

Id. at 136.

153

Id. at 141.

154

Id. at 137.

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Men have no restrictions on becoming custodians of their children.155 Further, men are always treated as the legal guardians of their children with an inherent right to make decisions regarding their children, particularly in the area of education.156 Men are obligated to pay maintenance for their children unless the women relinquish their entitlement in order to reach a divorce agreement. A court may order the husband to pay maintenance despite the agreement, but it becomes a debt the woman owes the man.157 The custody regime deprives men and women of equality under the law, as the decision over custody is based solely on gender. The rules are detrimental to all members of the family since both parents are deprived arbitrarily of important parental rights, while custody decisions are based on formulaic assumptions of what is in the best interest of the children rather than an examination of what is in fact in their best interests. These custody rules also transform women’s individual rights to freedom of movement, autonomy and to choose their religion into relational rights. Women cannot freely choose their religion, whom to marry, where live, or whether to travel without risking custody of their children. These decisions must undergo the approval of their ex-husbands, which transforms these rights into relational rights. Each of the effected rights remains individual for men as these restrictions on custody rights apply only to women. From this limited examination of classical interpretations of Shari’a personal status law, it becomes apparent that the problem women confront from constitutional protection of this religious law in Iraq and Afghanistan is not simply discrimination but also that they may be removed from under the protections of many constitutional rights.158 The concept of equality under the law does not exist in the area of personal status law, while women’s access to their rights to equality, freedom of movement, bodily integrity, property and autonomy likely will depend on the will of their fathers and/or husbands. Women likely will be deprived of their individual rights by a constitution that gives religious or cultural personal status law a role in governance without ensuring that any private actor to whom jurisdiction over law and/or law enforcement is transferred is held accountable to the constitution. All of this information refutes the assumption that the balance between the role of religion in governance and the human rights provisions in the Iraqi and 155

Id. at 138.

156

Id. at 131.

157

Id. at 86.

158

Women may be able to mitigate the harm of obedience rules by stipulating in their marriage contracts that they must have the right to work, to travel and to divorce without restriction. See, e.g., Lynn Welchman, Islamic Family Law Text and Practice in Palestine, Women’s Center for Legal Aid and Counseling 65 (1999). Such mitigation, however, does not undo the transformation of these rights to relational rights since the husbands must agree to these contractual stipulations, which means they remain under men’s control.

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Afghan constitutions ensures that women’s rights will be protected. Once the assumption is proved untrue, there is no basis for Western policy-makers’ support for these constitutions or any other constitutions that protect religious or cultural law without ensuring that rights remain individual rather than transformed into relational rights. CONCLUSION The expanded theory of relational rights begins to capture the depth of the risk of injury to women’s rights when constitutions provide religion or culture a role in governance without guaranteeing that the application of religious or cultural law will be subjected to scrutiny for human rights violations. Relational rights are created from individual rights when unaccountable, private actors are given the power to determine the content of those rights for persons with whom they have a relationship. Religious or cultural law accomplishes this transformation when it protects and enforces unequal power relations, whether in society or in the family. Once rights become relational, weaker parties may not be able to access some or all of the protections of the constitution, at least in the affected areas of law. Instead, they must hope the stronger parties allow them to exercise their rights. Because most cultural and religious law maintains elements of patriarchy, women suffer the greatest risk of having their individual rights undergo the transformation. A democratic constitution and protections for progressive human rights will not necessarily neutralize women’s risk. Suad Joseph’s description of how she conceived of relational rights depended on a political system that was weak, corrupt, undemocratic and ultimately failing; it was based on a government that refused to provide its constituency the benefits, privileges and rights considered in democratic theory to inhere in all citizens without the intervention of private actors. Relational rights created by constitutions, on the other hand, can exist even if the government is democratic and follows the rule of law as long as the constitution protects these unequal power relations by protecting the law that maintains them. The constitutional protection of equality rights may not alter the risk of harm to women, since the danger goes well beyond discrimination. To frame the danger of adopting religious or cultural law into the legal system as potentially resulting in discrimination against women suggests that the power to correct the problem lies in the hands of the government; it assumes a violation of equality provisions of the law and/or constitution can be corrected through state accountability and the application of the rule of law. What the expanded theory of relational rights shows is that the power to correct discrimination in fact is controlled by private actors who often are under no mandate or constitutional requirement to protect women’s rights. To combat relational rights, these constitutions must ensure the enforcement of human rights guarantees against private actors. The failure to do so should force

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Western policy-makers to rethink their support for constitutional protection of religious or cultural law. While it is too late for the concept of relational rights to influence the Afghan and Iraqi constitutions, the trend of constitutionally protecting religious or cultural law must be re-examined in light of the new harm identified.

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ENVIRONMENTAL COOPERATION IN THE (PARTIALLY) DISAGGREGATED STATE: LESSONS FROM THE SECURITY AND PROSPERITY PARTNERSHIP OF NORTH AMERICA Neil Craik† Joseph DiMento‡

Copyright © 2008 Chicago Journal of International Law, University of Chicago Law School; Neil Craik; Joseph DiMento. Originally published in Chicago Journal of International Law (Winter 2008)

I. INTRODUCTION On August 20 and 21, 2007, Canadian Prime Minister Stephen Harper, US President George W. Bush, and Mexican President Felipe Calderón met in Montebello, Quebec to discuss the Security and Prosperity Partnership of North America (“SPP”), a trilateral initiative that has as its objective enhanced regulatory cooperation between the three North American states in order to improve continental security and regional competitiveness. Despite being described in prosaic terms by government officials and industry supporters as a primarily technical exercise, the SPP has attracted trenchant criticism across the political spectrum. The SPP has been described variously as “integration by stealth,”1 the creation of a North American “European Union with none of the safeguards on the environment and social rights,”2 and (most floridly) as a “[u]nion that will bury America under more than 100 million, mostly poor Mexicans, and tens of millions of Canadians, used to their lavish social welfare benefits and socialized medicine.”3 Still others have dismissed the SPP altogether as a disappointing “much ado about †

Associate Professor, Faculty of Law, University of New Brunswick.

‡

Professor of Law and of Planning, Policy and Design, Director, Newkirk Center for Science and Society, University of California, Irvine. The authors gratefully acknowledge the research assistance of Matt Hiltz and Toby Kruger (UNB, LLB, 2009). Sections of the background work for this article were supported through the generosity of The Newkirk Center for Science and Society at the University of California, Irvine and the Canadian Consulate, Los Angeles.

1

Maude Barlow, Where’s The Transparency In The ‘Security’ And ‘Prosperity’ Partnership?, Globe And Mail (Aug. 16, 2007).

2

Chris Cobb, End ‘Under The Table’ Deal, Critic Says, Ottawa Citizen A4 (Apr. 2, 2007) (Quoting Council Of Canadians National Chairman, Maude Barlow).

3

John Ibbitson, Little Chance Partnership Proposal Will Lead To North American Union, Globe and Mail A9 ( July 9, 2007) (Quoting The News Journal Of Mansfield, Ohio).

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nothing,” noting that it is little more than a grocery list of bureaucratic minutiae that ignores the pressing trade and social imperatives affecting the region.4 And so opens another front in the fight over globalization. From a governance perspective, the SPP appears to adopt on a grand scale what international legal and international relations scholars have identified as a trend towards international regulation through informal arrangements negotiated directly by domestic agencies with their foreign counterparts.5 In this regard, Anne-Marie Slaughter has written extensively about a “new world order” based on overlapping networks of regulators who seek to coordinate transnational activity and achieve common goals through direct agency-to-agency interactions.6 In some cases, the form of cooperation is quite minimal, such as sharing information on best regulatory practices or extending notice of regulatory activities to regulators in potentially impacted jurisdictions. However, informal cooperation efforts may evolve into more substantively prescriptive arrangements, such as regulatory harmonization, mutual recognition arrangements, and cooperative enforcement mechanisms. What distinguishes these governance structures from traditional forms of international cooperation is that network arrangements are not negotiated through central agencies such as foreign affairs departments, nor do they revolve around a formally binding treaty. Instead, cooperating regulators directly interact with one another with a view to developing shared guidelines or “frameworks for cooperation” to institutionalize their cooperative efforts.7 To use Professor Slaughter’s phrase, the state as a relevant international actor is increasingly “disaggregating into its separate, functionally distinct parts,” as opposed to operating as a single, indivisible unit.8 Cooperation among financial regulators has been the most active area for transgovernmental networks, with quite evolved regulatory networks in areas such as banking, competition law, insurance, and securities regulation.9 Environmental regulation is also emerging as an issue area where networks are being utilized to 4

See Roland Paris, A Trilateral Mishmash, Globe and Mail A17 (Feb. 26, 2007).

5

Anne-Marie Slaughter, A New World Order (Princeton 2004). See also Kal Raustiala, The Architecture Of International Cooperation: Transgovernmental Networks And The Future Of International Law, 43 Va J Int’l L 1 (2002); Anne-Marie Slaughter And David Zaring, Networking Goes International: An Update, 2 Ann Rev. of L. & Soc Sci 211 (2006); Christopher A. Whytock, A Rational Design Theory Of Transgovernmentalism: The Case Of E.U.–U.S. Merger Review Cooperation, 23 BU Int’l L.J. 1 (2005); Mark A. Pollack And Gregory C. Shaffer, Eds, Transatlantic Governance In The Global Economy Chapters 5–7 (Rowman & Littlefield 2001) (providing case studies on US and European transgovernmental arrangements).

6

See Slaughter, A New World Order (cited in note 5).

7

Id. at 172. See also Raustiala, 43 Va J Int’l L at 26–50 (cited in note 5) (providing examples of regulatory cooperation in securities, competition and, environmental regulation).

8

Anne-Marie Slaughter, The Real New World Order, 76 Foreign Aff. 183, 184 (1997).

9

Anne-Marie Slaughter, Governing the Global Economy through Government Networks, in Michael Byers, ed, The Role of Law in International Politics: Essays in International Relations and International Law 177, 179 (Oxford 2000). See also Kalypso Nicolaidis and Gregory Shaffer,

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address transboundary and global environmental issues, as well as addressing environmental nontariff barriers to trade, although to date the regulatory achievements of environmental networks are less developed than those found in the financial area.10 The SPP marks a further, and in our view, important, development in the use of transgovernmental networks because under the SPP, the executive branches of Canada, the United States, and Mexico deliberately turn to transgovernmental networks as a governance strategy across multiple issue areas. The SPP, which proposes an ambitious agenda of security, economic, energy, and environmental initiatives, identifies areas for increased cooperation and charges a series of working groups that are principally made up of federal government officials from the three partner countries to negotiate and to implement cooperative solutions. The selfconscious use of networks as an alternative to traditional international institutions on a broad scale was contemplated by Slaughter,11 but the SPP marks the first practical attempt by governments to create a cross-cutting transnational governance structure that relies principally on transgovernmental networks. Consequently, the SPP provides an important opportunity to consider the prospects and limitations of transgovernmentalism at large. The SPP process in both its substance and form has attracted significant opposition by domestic groups in all three countries. It is viewed by its critics as proposing a more highly integrated governance structure that erodes national sovereignty through a process that has privileged corporate interests and lacks democratic accountability.12 While it may be tempting to dismiss this criticism as coming from the margins of the political spectrum,13 the concerns over accountability have found much purchase within the legislative branches of the three North American governments, which have been excluded from the SPP process.14 The response to this

Transnational Mutual Recognition Regimes: Governance without Global Government, 68 L & Contemp Probs 263 (2005). 10

Raustiala, 43 Va J Int’l L at 49 (cited in note 5).

11

Slaughter, New World Order at 244 (cited in note 5) (“Here . . . we turn to what could be if government networks were, alongside traditional international organizations, widely recognized and self-consciously constituted mechanism of global governance.”).

12

Barlow, Where’s the Transparency, Globe and Mail (cited in note 1).

13

For example, much of the criticism in the United States arises from commentators on the far right of the political spectrum, while in Canada the criticism tends to come from the left.

14

The SPP has been raised as a campaign issue in both the Republican and Democratic (presidential?) races in the United States. It has been the subject of an amendment to a transportation bill in the US Congress, “prohibiting the use of funds to participate in a working group pursuant to the Security and Prosperity Partnership.” See CBC News, SPP FAQs (Aug. 20, 2007), available online at http://www.cbc.ca/news/background/spp/ (visited Nov. 17, 2007). See also H Con. Res. 40, 110th Cong, 1st Sess. ( Jan.22, 2007), available online at http:// frwebgate.access.gpo.gov/cgibin/getdoc.cgi?dbname=110_cong_bills&docid=f:hc40ih.txt.pdf (visited Nov. 17, 2007) (noting the SPP acts to “circumvent United States trade, transportation, homeland security, and border security . . . makes the United States-Mexico border less secure

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criticism by government officials and the SPP supporters is to deny the SPP’s governmental ambitions. Instead, government officials maintain that networks are mostly about exchanging ideas and information, and where rules do emerge they are largely technical and subject to domestic accountability measures.15 The picture that is emerging from the debate over the SPP is one of profound incommensurability, with respective understandings of the role and functions of the SPP being so divergent as to render any debate practically meaningless.16 In relation to environmental and resource issues, the SPP has raised concerns about the potential for the adoption of less preventive standards and the loss of control over national resource policy. These concerns have been exacerbated by the absence of any fixed avenues for input and consultation by nongovernmental groups and the absence of any substantive commitment to environmental values within the SPP structure. The result has been a lack of understanding and growing mistrust of the SPP’s government and private sector supporters in relation to the SPP’s impact on the environment.17 The purpose of this Article is to evaluate the SPP process critically and the opposition to it in light of the existing literature on transgovernmental networks. This is accomplished with specific reference to those aspects of the SPP that address environmental and resource issues. More particularly, Section II of the Article contends that characterizing the SPP as a form of transgovernmentalism adds considerable analytic clarity to the debate over the SPP. Our basic argument is that the paucity of the debate results from the failure of the architects of the SPP and their critics to appreciate the nature of transgovernmental networks as a governance structure. To this end we identify certain structural features shared by transgovernmental

because Mexico is the primary source country of illegal immigrants into the United States,” and can “violate and threaten United States sovereignty.”). 15

See Security and Prosperity Partnership of North America, SPP Myths vs Facts, available online at http://www.spp.gov/myths_vs_facts.asp (visited Nov. 17, 2007) (describing SPP as a “dialogue” and noting requirements to conform with domestic administrative requirements) (“SPP Myths v. Facts”).

16

This divergence was exemplified in an exchange between Gordon Laxer, a political economist and resource expert, and Leon Benoit, the Conservative Chair of the Canadian House of Commons International Trade Committee. Laxer sought to raise concerns regarding the SPP discussions on energy security in the absence of any clear Canadian national energy policy, but was prevented from doing so on the basis that his comments were not relevant. In essence, while Laxer felt that energy policy was central to his concerns over the SPP, the Chair was not prepared to consider the link as directly bearing on the matter before the Committee. Evidence of Gordon Laxer, Standing Committee on International Trade, 39th Can Parl, 1st Sess. 1210, 1210–1215 (May 10, 2007), available online at http://cmte.parl.gc.ca/ cmte/CommitteePublication.aspx?SourceId=208182&Lang=1&PARLSES=391&JNT=0& COM=0 (visited Nov. 17, 2007).

17

See, for example, Linda McQuaig, Is Water on the Table at Montebello, Toronto Star AA08 (Aug. 21, 2007) (describing undisclosed plan to divert Canadian water to the United States).

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networks and examine the competing claims concerning the SPP in light of these characteristics. Section III of the Article provides additional support for the descriptive claims of transgovernmentalists that states are turning to networks. The development and structure of the SPP, however, qualifies the central transgovernmentalist claim that the state is disaggregating. Instead, the picture that emerges is one of partial disaggregation where central governments retain the power to create networks, to enable them, and to define their agendas. This Article argues that this is a state of affairs with mixed normative implications. The situation also puts the debate on the SPP, described in Section IV, in greater focus by allowing for exploration into whose characterization of the SPP more closely resembles its actual governance features. The result, we suggest, is that the debate is in its essence one between networks as they are and networks as they could be. Finally, Section V argues that the nature of transnational networks requires a distinct form of legitimacy. In the SPP process, the framers rely exclusively on two forms of legitimacy: expert legitimacy, whereby the authority exercised by networks is justified on the basis of the qualifications of its members to solve technical problems, and a highly formalized version of process legitimacy, which tends to equate legitimacy with legality. In light of the discussion in the Section II of the Article, we argue that these forms of legitimacy are insufficient on their own. Here we compare the underlying normative structure of the SPP’s environmental and resource network initiatives with the structure of other international environmental and resource institutions that express a shared normative commitment to substantive environmental ends. Our conclusion, like that of Professor Slaughter, is that the turn to networks as a governance strategy requires a shared normative foundation. But whereas Slaughter appears content to rely on principles of procedural legitimacy, such as inclusivity, discursiveness, and subsidiarity,18 this Article maintains that a shared commitment to substantive environmental principles is also required. This conclusion does not necessarily negate the possibility of an effective transgovernmental world order, but it suggests that we should approach such claims with caution. II. THE NATURE OF NETWORKS The emergence of the disaggregated state is primarily understood as a reaction to systemic conditions in world politics, such as vastly increased interdependence, technological innovation, and increased regulatory density.19 As the capacity of the nation-state to solve politically salient issues weakens due to a growing

18

Slaughter, A New World Order at 244–57 (cited in note 5).

19

See generally Robert Keohane and Joseph Nye, Power and Interdependence: Politics in a World in Transition (Little, Brown 1977). See also Robert Keohane and Joseph Nye, Power and Interdependence Revisited, 41 Int’l Org. 725 (1987).

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incongruence between global, economic, and national political arenas and the accelerated need for responsive regulatory action,20 increased opportunities for the shifting of authority both vertically and horizontally have emerged. But despite the predictions of the waning influence of the state in world politics, the state has retained its prominence–although not its monopoly (such as it was)–on the exercise of authority beyond the state.21 The result is a “more decentralized, multicentric system” that coexists alongside the traditional state-centered system.22 Viewed in this context, the disaggregation of the state is presented as being demand driven. As regulated entities expand their activities and impacts beyond national borders, regulators seek to follow. While one possibility is for regulators to extend their regulatory powers beyond the state unilaterally, legal constraints and political resistance to extraterritoriality by other states make cooperative forms of regulation an attractive option.23 Cooperation at the state-to-state level is another alternative, but requires take up by central governments, whose foreign affairs agendas are already crowded.24 As an alternative means by which to pursue their regulatory goals, regulators have turned to their foreign counterparts to share information and to develop common and compatible regulatory approaches. Networks of administrative officials facilitate communication, allowing officials to better understand their shared problems and how they might benefit from cooperation and to provide forums for the development of cooperative solutions.25 Transgovernmental networks have not been defined and delineated in any precise way, and the definitions that do exist tend to be catholic in their approach, allowing

20

Consider Thomas Risse, Transnational Governance and Legitimacy, paper presented to the Fifth Pan-European International Relations Conference (Sept. 9–12, 2004), in Standing Group on International Relations 3–4, available online at http://www.sgir.org/conference 2004/papers/Risse%20-%20Transnational%20Governance%20and%20Legitimacy.pdf (visited Nov. 17, 2007).

21

See Slaughter, 76 Foreign Aff. 183 (cited in note 8) (responding, in part, to Jessica Mathews, Power Shift, 76 Foreign Aff. 50 (1997)).

22

James Rosenau, Turbulence in World Politics: A Theory of Change and Continuity 11 (Princeton 1990).

23

In the environmental context, see Neil Craik, Transboundary Pollution, Unilateralism, and the Limits of Extraterritorial Jurisdiction: The Second Trail Smelter Dispute, in Rebecca Bratspies and Russell Miller, eds, Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration 109 (Cambridge 2006) (discussing difficulties of extraterritorial application of environmental legislation); Shi-Ling Hsu and Austen Parrish, Litigating Canada–U.S. Transboundary Harm: International Environmental Lawmaking and the Threat of Extraterritorial Reciprocity, 48 Va J Int’l L 1 (2007).

24

See Slaughter, Governing through Government Networks at 189–91 (cited in note 9).

25

For example, the North American Commission for Environmental Cooperation (“NACEC”) plays this role in relation to environmental issues. NACEC has identified issue areas where the members would benefit from cooperation; it undertakes studies and provides a forum for both government and citizen input into its initiatives. See note 36.

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for a large variation of arrangements to fall into the category.26 What draws transgovernmental networks together as a distinct governance approach is the absence or minimization of the defining features of formal international organizations, namely: (1) membership composed of states or other international organizations; (2) establishment by treaty; (3) autonomy stemming from its membership and a distinct legal personality; and (4) the ability to adopt norms addressed to its membership.27 Transgovernmental networks are not networks of states, but rather networks of governmental officials. The range of government actors involved in networks varies considerably, with some networks being constituted of highly visible government officials with strong democratic credentials, such as ministers,28 although most networks are constituted of bureaucratic actors. These latter network participants may be directly part of the civil service or may be affiliated with agencies that have a measure of autonomy from the government, such as central banks or independent administrative agencies.29 In the case of federal states, network participants may also include substate regulators. For example, the Canada-US Air Quality Committee is a body made up of agency officials from both the federal regulators and from state and provincial environmental agencies that share responsibility for regulating air pollution.30 Here, the flexibility of transgovernmentalism accounts for multilevel governance by providing an opportunity for transgovernmental cooperation between levels of government that have no formal recognition in international law. A key defining feature of transgovernmental networks is that network participants must be able to exercise authority within their own jurisdiction.31 Consequently, network members are able to implement network 26

For example, Slaughter provides the following definition: “[A] network is a pattern of regular and purposive relations among like government units working across the borders that divide countries from one another and that demarcate the “domestic” from the “international” sphere.” Slaughter, A New World Order at 14 (cited in note 5).

27

Philippe Sands & Pierre Klein, Bowett’s Law of International Institutions 16 (Sweet & Maxwell 2001). See also Jose Alvarez, International Organizations as Lawmakers 4 (Oxford 2005).

28

Prominent examples of high-level networks are meetings of the Finance Ministers of the G8 Group of Nations or the G20 Group of Nations. See Slaughter, A New World Order at 37 (cited in note 5).

29

Examples of networks of independent administrative agencies include the International Organization of Securities Commissioners and the Basle Committee on Banking Supervision, while the International Network for Environmental Compliance and Enforcement is principally made up of environmental officials who are employed directly within the government. See generally Raustiala, 43 Va J Int’l L 1 (cited in note 5).

30

The Committee was created under the Agreement between the United States and Canada on Air Quality (1991), art VIII, 30 ILM 676, 682 (1991) (“Canada–US Air Quality Agreement”).

31

However, some networks include private entities, such as private stock exchanges in the International Organization of Securities Commissioners and environmental NGOs in the International Network for Environmental Compliance and Enforcement. See Slaughter, Governing through Government Networks at 184–185 (cited in note 9).

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decisions in domestic legal orders with relative ease. Networks, unlike many international organizations, can control entry into the network. This form of exclusivity has led to some networks being described as “club-like,” in that membership may exclude not only representatives from other states, but may also exclude government officials from other ministries and agencies within the network member’s state that might have conflicting objectives.32 Networks can thus optimize the prospects of cooperation by excluding dissenting voices within and outside domestic polities. Networks tend not to be constituted formally around a binding treaty, but rather are established by informal arrangements.33 Consequently, transgovernmental networks are less likely to have permanent institutional structures, such as a secretariat or permanent headquarters.34 Unlike the majority of financial networks, some environmental networks may be established by treaty, as in the case of the Canada-US Air Quality Committee.35 Here the treaty provision defines the Air Quality Committee’s mandate, which is to assist in the implementation of the treaty in the broadest terms, but confers no formal regulatory authority on it and leaves membership in the committee up to the parties. Functionally, the result is similar, leaving the network participants with discretion to define the scope of their cooperative efforts. The difference with networks created within a treaty framework is that the treaty structure more clearly defines the regulatory goals to which the committee is oriented. Similarly, the North American Commission for Environmental Cooperation (“NACEC”), a transgovernmental institution made up of the environmental ministers from each NAFTA country, was created under the North American Agreement on Environmental Cooperation and was given a broad implementation mandate.36 The structure of that 32

Slaughter, The New World Order at 200–03 (cited in note 5). See also Robert Keohane and Joseph Nye, The Club Model of Multilateral Cooperation and Problems of Democratic Legitimacy, in Roger Porter et al., eds, Efficiency, Equity, and Legitimacy: The Multilateral Trading System at the Millenium 264, 266–67 (Brookings Institute, 2001).

33

See David Zaring, International Law by Other Means: The Twilight Existence of International Financial Regulatory Organizations, 33 Texas Int’l L.J. 281, 301–02 (1998).

34

There are some exceptions to this, for example, the Basle Committee on Banking Supervision uses the Bank for International Settlement to perform secretariat functions. See Slaughter, Governing through Government Networks at 182 (cited in note 9).

35

Created under the Canada–US Air Quality Agreement, art VIII (cited in note 30). Slaughter refers to networks that exist within the framework of a treaty as “nested networks.” See Slaughter, Governing through Government Networks at 200 (cited in note 9) (citing the North American Working Group on Enforcement and Compliance Cooperation created under the North American Agreement on Environmental Cooperation (1993), 32 ILM 1480, 1485 (1993) as a further example).

36

North American Agreement on Environmental Cooperation, art 9 (cited in note 35). For an indepth review of the role of the NACEC in North American environmental governance, see generally David Markell and John Knox, eds, Greening NAFTA: The North American Commission for Environmental Cooperation (Stanford 2003).

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agreement also imbues the NACEC with a clear mandate to improve environmental quality.37 The creation of a network does not involve the delegation of authority to the network. Unlike international organizations or their subsidiary bodies, which may be granted authority to make future decisions binding on the membership,38 networks affect member behavior through voluntary means, such as the adoption of guidelines or recommendations.39 In many cases, the network may simply function as a forum for information sharing. This is often the case with environmental networks. For example, the Strategic Implementation Plan of the International Network for Environmental Compliance and Enforcement (“INECE”) outlines goals relating to capacity building, raising awareness, and the development of evaluative tools, but does not seek to develop and to promote the adoption of specific environmental standards.40 It would be a mistake, however, to dismiss networks as simply being talk shops.41 In a number of cases, networks have produced substantial sets of rules that have been adopted by network members. Prominent among these are the capital adequacy requirements developed by the Basle Committee and a large number of Memoranda of Understanding (“MOUs”) regarding securities regulation enforcement negotiated between participants in the International Organization of Securities Commissioners.42 While these documents are formally nonbinding,

37

North American Agreement on Environmental Cooperation, art 1 (cited in note 35).

38

See Robin R. Churchill and Geir Ulfstein, Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-noticed Phenomenon in International Law, 94 Am J Int’l L 623, 626 (2000).

39

See Id. at 655–56. See also Jutta Brunnée, COPing with Consent: Law-Making under Multilateral Environmental Agreements, 15 Leiden J Int’l L 1 (2002).

40

International Network for Environmental Compliance and Enforcement, Strategic Implementation Plan, (Nov. 2006), available online at http://www.inece.org/INECE_ SIP_2006.pdf (visited Nov. 17, 2007).

41

But see Kenneth Anderson’s comment: Far more common throughout the book than accounts of the successes of horizontal coordinating networks in the real world are descriptions of bureaucratic outputs. Networks held meetings, wrote papers, made recommendations, and drafted statements. To be sure, this is what networks must do in order to create successful outcomes in which network members go back to their own operations and implement now-coordinated policies. Yet unfortunately this is also precisely the procedure followed when networks create unsuccessful outcomes.

Kenneth Anderson, Squaring the Circle? Reconciling Sovereignty and Global Governance Through Global Government Networks: Book Review of Anne-Marie Slaughter, A New World Order, 118 Harv L. Rev. 1255, 1277–78 (2005) (emphasis added). 42

See Slaughter, Governing through Government Networks at 183–85 (cited in note 9). See also Raustiala, 43 Va J Int’l L at 22–23 (cited in note 5); International Organization of Securities Commissions, Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information, (May 2002), available online at

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they are written in reasonably precise language and carry with them expectations of compliance.43 Another common form of network cooperation is the use of mutual recognition agreements, which are often administered by networks but created by central governments. These arrangements provide for the acceptance and substitutability of another jurisdiction’s regulatory processes and standards in relation to imported products and services, again providing a hard edge to the work of transgovernmental networks.44 The progress reports of the Canada-US Air Quality Committee also reveal a multifaceted work agenda, which includes coordination of consultation and notification requirements for projects with transboundary air pollution implications, the coordination of significant bilateral research and technical programs, as well as comprehensive assessments of the Air Quality Agreement itself.45 From this brief description of networks, we can distill a number of important structural features that transgovernmental networks share. Firstly, they are governmental, not only because they are made up of government actors, but because they have as their purpose the creation of prescriptive norms to govern social activities.46 The governmental nature of networks may be overlooked because of their informal nature. Because networks are rarely the recipients of delegated authority, the commitments they generate tend to be reflexive and self-regulatory. Even where networks appear to be acting simply as clearinghouses for best practices and technical information, they are able to influence policy choices made by regulators. As Slaughter points out, one of the most important roles that networks will play is sifting through large volumes of information, determining which information is most salient and most credible for network members, and disseminating that information among members.47 It follows from this that access to networks will be a http://www.iosco.org/library/index.cfm?section=pubdocs&year=2002&publicDocID=126 (visited Nov. 17, 2007). 43

For discussion of characteristics of legalized international arrangements, see Kenneth Abbott et al., The Concept of Legalization, in Goldstein et al., eds, Legalization and World Politics 17 (MIT 2001).

44

Discussed comprehensively in Nicolaidis and Shaffer, 68 L & Contemp Probs at 272 (cited in note 9).

45

For progress reports, see Canada–US Air Quality Agreement Progress Reports, available online at http://www.ec.gc.ca/cleanair-airpur/Pollution_Issues/Transboundary_Air/Canada__United_States_Air_Quality_Agreement-WS83930AC3-0_En.htm (visited Nov. 17, 2007). Notification of regulated activities is also a feature of antitrust networks, as discussed in Whytock, 23 Bu Int’l L.J. at 39 (cited in note 5).

46

Consider Commission on Global Governance, Our Global Neighbourhood: The Report of the Commission on Global Governance 5 (Oxford 1995) (defining “governance” as “the sum of the many ways individuals and institutions, public and private, manage their common affairs.”).

47

Slaughter, A New World Order at 177–78 (cited in note 5). For an important analysis of the relationship between information that is salient and credible and the ability of that information

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determinant of whether a group can successfully wield influence. Slaughter points out that in a highly complex world, where various interest groups are competing for influence with policymakers, the ability to privilege certain forms or sources of information is an important source of power. She continues: Regulation of information is government by soft power. By changing the information available to others, you convince them that they want what you want–the very definition of soft power . . . The core role of the state thus shifts from enforcer to provider and guarantor of the quality of the available information.48

The exercise of authority through soft power is no less governmental. Indeed, at the international level, states themselves often view softer forms of regulation as preferable over hard commitments.49 This points to a further characteristic of transgovernmental networks. Transgovernmental networks are international in that they seek to govern activities and relationships beyond the state. As an international form of governance, the power of networks resides outside the state and, as such, networks cannot simply rely on the domestic delegation of authority to network members as a justification of network authority as a whole. This is so because as participants in an international institution, network members owe their allegiance to, or are accountable to, those individuals and groups that are affected by their activities, which will include their domestic constituents, but also includes constituents outside of their own polity.50 For example, in international organizations such as the World Bank, member representatives are directly accountable to the government that appoints them, but the institution as a whole must be accountable to those persons affected by Bank policies. Consequently, the Bank provides outlets for participation and review of Bank decisions, such as the Inspection Panel process, whereby groups or individuals who are aggrieved by a failure of the Bank to follow its procedures may seek an independent review of the decision taken.51 Transgovernmental networks, which are understood as an alternative to international organizations, similarly recognize to influence outcomes in international environmental policy processes, see Ronald Mitchell, William Clark, and David Cash, Information and Influence, in Ronald Mitchell et al., eds, Global Environmental Assessments: Information and Influence 307 (MIT 2006). 48

Slaughter, A New World Order at 187 (cited in note 5).

49

For discussion of basis of why states may prefer “soft” legalization, see Kenneth Abbott and Duncan Snidal, Hard and Soft Law in International Governance, in Goldstein et al., eds, Legalization 37 (cited in note 43).

50

Slaughter, A New World Order at 233 (cited in note 5) (noting “In a pure disaggregated view, one set of government officials operates at both the national and the global-regional levels, performing a set of interrelated functions, but these officials would have to represent both national and global interests . . .”). See also Ruth W. Grant and Robert O. Keohane, Accountability and Abuses of Power in World Politics 99 Am Pol. Sci. Rev. 29, 29–30 (2005) (drawing a distinction between “participation” and “delegation” models of accountability.).

51

See International Bank for Reconstruction and Development— International Development Panel, The World Bank Inspection Panel (Sept. 22, 1993), Res No IBRD 93-10

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the same accountability commitments. Thus, we are beginning to see the development of forms of network accountability that provide opportunities for affected or merely interested persons to participate in, or comment on, network activities, in addition to direct principal-agent forms of accountability flowing from network members to their domestic political masters.52 Transgovernmental networks are also evolutionary and directive in the sense that they are oriented towards convergence.53 In many cases, convergence is the express policy objective of the network. For example, most of the major international economic networks seek to develop common sets of rules or approaches on matters such as bank capitalization requirements, antitrust policy, and securities regulation.54 Here the purpose of networks is to provide an alternative to destructive regulatory competition arising from trade pressures through the creation of common standards and compatible regulatory approaches.55 Kal Raustiala points out that in many instances convergence is the result of a very deliberate policy of regulatory exportation by powerful countries.56 For example, the United States Environmental Protection Agency and the Danish Environmental Protection Agency have adopted strategies that promote the adoption of their own regulatory solutions as a way to enhance and to improve the efficacy of other regulators, but also to create a demand for domestically created environmental technologies.57 Regulatory convergence is not restricted to harmonization of substantive standards, but also includes the development of common monitoring and testing methodologies. Much of the NACEC’s work regarding pollutant release and transfer registries has been directed at the creation of a compatible system of pollutant release tracking throughout North America.58 Here, procedural policy convergence that resulted in accurate comparative assessments of environmental performance led to substantive policy convergence as jurisdictions identified as laggards faced public pressure to meet higher environmental standards.59 and Res No IDA 93–6 (1999), available online at http://siteresources.worldbank.org/ XTINSPECTIONPANEL/ Resources/ResolutionMarch2005.pdf (visited Nov. 17, 2007). 52

See, for example, David Zaring, Informal Procedure, Hard and Soft, in International Administration, 5 Chi J Int’l L 547 (2005). But see Anderson, 118 Harv L. Rev at 1285 (cited in note 41) (questioning as a normative matter whether this independence is desirable).

53

This argument is most forcefully made by Raustiala, 43 Va J Int’l L at 51–70 (cited in note 5).

54

See, for example, Zaring, 5 Chi J Int’l L at 572 (cited in note 52) (referring to financial regulatory networks as “proselytizers,” seeking to “spread [the] best practices to fellow regulators”).

55

Slaughter and Zaring, Networking Goes International at 217 (cited in note 5).

56

See Raustiala, 43 Va J Int’l L at 46 (cited in note 5).

57

Id. at 44–48 (citing EPA Strategy for Export Promotion, EPA/300 F-93-001).

58

See generally Mark Winfield, North American Pollutant Release and Transfer Registries: A Case Study In Environmental Policy Convergence, in Markell and Knox, eds, Greening NAFTA 38 (cited in note 36).

59

Id. at 51.

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Regulatory convergence through networks also arises through less direct means. For example, capacity building may push new regulators to adopt an existing regulatory approach since exporting regulators will be most likely to put forward their own regulatory solutions. From a cost standpoint, adoption of an existing framework may be preferable to creating one anew. Additionally, because network members often share common professional training and seek solutions to common problems, socialization of network members around a commonly held framework of norms is a principal source of network efficacy.60 Socialization does not mean that network members will abandon self-interest, but insofar as it facilitates reasoned and deliberative interactions between members, cooperative solutions are more likely to emerge, and dominant network norms are more likely to be accepted.61 Moreover, because networks institutionalize repeated interactions among the same group, reputations become increasingly important, making recalcitrance a less desirable long-term strategy.62 There is nothing inevitable about regulatory convergence; as both Slaughter and Raustiala point out, networks are not a sufficient condition to produce convergence.63 Slaughter, for example, argues that in some instances “informed divergence” may be a preferred outcome: It is equally possible to imagine legislators or regulators being made aware of the divergence between their laws or rules and those of a substantial number of other countries and nevertheless concluding to prize and preserve their differences on historical, cultural, political, economic, social, religious, or any other distinctive national grounds. What is critical is that the same forces pushing toward convergence–the forces of regulatory export, technical assistance, distilled information and soft law–can also result in informed divergence.64

While convergence may not always occur, there appear to be few examples of networks that do not seek at least to explore the benefits of greater integration. As the above quotation suggests, the value of convergence may depend on whose views are accounted for in the process. Where networks are narrowly drawn, the social and historical reasons for divergence are less likely to be aired. Thus, while most of the reasons that would propel states to favor convergence, such as reducing nontariff trade barriers and facilitating more efficient transnational regulation, exist 60

See Slaughter, A New World Order at 198–200 (cited in note 5). Socialization is also cited by as a source of regulatory convergence in Raustiala, 43 Va J Int’l L at 52 (cited in note 5).

61

In this regard, there is an acknowledged connection between transgovernmentalism and the nature of epistemic communities, as described in Peter Haas, Introduction: Epistemic Communities and International Policy Coordination, 46 Int’l Org 1 (1992), discussed in Slaughter, A New World Order at 42 (cited in note 5).

62

Slaughter, A New World Order at 199 (cited in note 5).

63

Raustiala, 43 Va J Int’l L at 52 and 56–7 (cited in note 5); Slaughter, A New World Order at 181–3 (cited in note 5).

64

Slaughter, A New World Order at 182–183 (cited in note 5) (emphasis in original).

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independently of networks, the structure of networks is intended to facilitate and to deepen cooperation between agencies. As a consequence, networks are non-neutral on debates regarding the value of integration–they favor it. The effect of adopting a transgovernmental approach to cooperation is to shift the goal posts by making the starting point of network discussions the extent of integration, not whether integration is desirable. To be clear, we do not oppose this shift as a normative matter, but, as elaborated below, we are of the view that the predisposition of networks towards integration is likely to affect the legitimacy of transgovernmental approaches to governance. III. THE SPP AND PARTIAL DISAGGREGATION The SPP process fits squarely within the transgovernmental framework, although the SPP is not a network itself, at least not as traditionally conceived. Initiated at a meeting of the three North American heads of state held in Waco, Texas in March 2005,65 the SPP is an agenda of bilateral and trilateral regulatory cooperation initiatives that are centered on the twin themes of regional security and regional prosperity, referred to as the Security Agenda and Prosperity Agenda, respectively.66 What unites these various initiatives, which are wide-ranging in their subject matter and in the form of cooperation that they contemplate, is their use of transgovernmental networks as the vehicle for cooperation. The SPP initiatives are grouped along sectoral lines with corresponding working groups being created under the SPP process.67 The working groups are made up of governmental officials from the three North American countries. The working groups themselves may divide their initiatives among smaller expert groups, which may include participation from nongovernmental groups, such as industry groups.68 The SPP also created the North American Competitiveness Council (“NACC”), a group of thirty private-sector executives, whose mandate is to advise the leaders and ministers on priorities and on strategic approaches to increase regional

65

Joint Statement of President Bush, President Calderón, and Prime Minister Martin (Mar. 23, 2005), available online at http://www.whitehouse.gov/news/releases/2005/03/20050323-2. html (visited Nov. 17, 2007) (“Joint Statement (Mar. 23, 2005)”).

66

The SPP initiatives are contained in two documents. See White House Office of the Press Secretary, Prosperity Agenda, (Mar. 23, 2005), available online at http://www.spp.gov/ prosperity_agenda/ (visited Nov. 17, 2007); White House Office of Press Secretary, Security Agenda, (Mar. 23, 2005), available online http://www.spp.gov/security_agenda/ (viewed Nov. 17, 2007).

67

The working groups were established by the leaders following the 2005 launch of the SPP. See Joint Statement (Mar. 23, 2005) (cited in note 65). A list of the SPP Prosperity Working Groups is available online at http://www.spp.gov/prosperity_working/index.asp?dName= prosperity_working (visited Nov. 17, 2007).

68

For example, this appears to be prevalent in the Energy Working Group.

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competitiveness.69 The momentum of the SPP initiatives is maintained by the identification of deadlines for outcomes and periodic reports to the leaders on SPP accomplishments. There has been an annual leaders’ conference in each of the three years the SPP has been in existence, which has been used to announce initiatives and to refine the priorities of the SPP further. The impetus for the SPP can be attributed to several overlapping sources. Historically, the SPP, or at least the Prosperity Agenda, can be understood as a continuation of the economic integration process initiated under the CanadaUnited States Free Trade Agreement and NAFTA. While these agreements have largely eliminated tariff barriers to North American trade, there remain a number of trade-related issues, such as complicated rules of origin requirements, regulatory divergence, and ineffective trade dispute settlement mechanisms that reduce trade efficiencies within North America.70 The current situation was described by the Canadian International Trade Minister as “the tyranny of small differences.”71 The related concern driving the Prosperity Agenda is the widely felt recognition that North America was losing competitive ground to major emerging markets, such as China and India, necessitating a renewed focus on global competitiveness.72 Consequently, much of the SPP’s Prosperity Agenda is concerned with improved “regulatory cooperation,” which includes the harmonization of standards, mutual recognition, and equivalency measures. Within the Prosperity Agenda specific attention is given to a number of key sectors including steel, automotive, food and agriculture, and energy, as well as to cross-sectoral regulatory areas such as health and the environment.73 The more seismic event that shaped the SPP was the increased emphasis on domestic security in the United States that followed the 2001 terrorist attacks in

69

The North American Competitiveness Council was established in the White House Office of the Press Secretary, The Security and Prosperity Partnership of North America: Progress, (Mar. 31, 2006), available online at http://www.spp.gov/pdf/security_and_prosperity_partnership_of_ north_america_statement.pdf (visited Nov. 17, 2007).

70

Council on Foreign Relations, Building a North American Community 158 (Council on Foreign Relations 2005).

71

Carl Ek et al., Canada–U.S. Relations, Congressional Research Service Rept No. 96-397 at 32 (May 15, 2007), available online at http://www.fas.org/sgp/crs/row/96-397.pdf (visited Nov. 17, 2007).

72

Canadian Council of Chief Executives, New Frontiers: Building a 21st Century Canada-United States Partnership in North America (Apr. 2004), available online at http://www.ceocouncil.ca/ publications/pdf/8502a13cf417d09eab13468e2a7c9f65/New_Frontiers_NASPI_Discussion_ Paper_April_2004.pdf (visited Nov. 17, 2007). See also Evidence of Anthony Burger (Chief Economist, Department of Foreign Affairs and Trade), Standing Committee on International Trade, 39th Can Parl, 1st Sess 1110 (Apr. 24, 2007), available online at http://cmte.parl.gc.ca/ cmte/CommitteePublication.aspx?SourceId=202771 (visited Nov. 17, 2007).

73

Prosperity Agenda (cited in note 66).

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that country. This event underscored the need for enhanced border security in North America and highlighted the dramatic impact that tighter United States security measures would have on the movement of people and goods across North American borders, with consequential impacts on the economies of all three North American states.74 The immediate response was the negotiation of bilateral border security arrangements, which themselves adopted a transgovernmental governance approach.75 The security cooperation measures, which include border document requirements, immigration security measures, bio-protection, aviation and maritime security, and intelligence cooperation, as well as measures to facilitate the efficient movement of goods and people across North American borders, make up the “Security Agenda.”76 The SPP process also coincided with the development of two private-sectorinitiated reports that outlined ambitious regional integration recommendations. The first initiative was launched by the Canadian Council of Chief Executives (“CCCE”), a business-oriented public policy and advocacy organization. In 2004, the CCCE issued a report under the “North American Security and Prosperity Initiative” calling for a reinvigorated regional integration strategy between Canada and the United States.77 The second report was cosponsored by the Council on Foreign Relations, the CCCE, and the Consejo Mexicano de Asuntos Internacionales, and also proposed far-reaching integration measures in a report prepared by an independent task force in 2005.78 In both cases, the areas of concern identified in their respective recommendations found expression within the SPP process, including the name “Security and Prosperity” itself (derived from the CCCE Initiative) and the suggestion for a North American Advisory Council (of private sector leaders), which became the NACC. The NACC consists of many of the same persons involved in the drafting of these two reports.79 It provides advice and recommendations directly to the ministers responsible for the SPP. This was done for the first time in a February 2007 report outlining both short-term

74

For a general discussion, see Survey: Living with Number One, Economist 10 (Dec. 3, 2005).

75

The Canada–United States Smart Border Declaration (Dec. 2001), available online at http:// www.dfait-maeci.gc.ca/anti-terrorism/actionplan-en.asp (visited Nov. 17, 2007); United States–Mexico Border Partnership Agreement (Mar. 21, 2002), available online at http://www. state.gov/p/wha/rls/fs/8909.htm (visited Nov. 17, 2007).

76

See Security Agenda (cited in note 66).

77

Canadian Council of Chief Executives, New Frontiers at 4–5 (cited in note 72).

78

Council on Foreign Relations, Building a North American Community (cited in note 70).

79

For a list of members of the NACC, see North American Competiveness Council, Enhancing Competiveness in Canada, Mexico and the United States: Private Sector Priorities for the Security and Prosperity Partnership of North America (SPP) 58 (Feb.2007), available online at http:// www.ceocouncil.ca/publications/pdf/test_4d5f2a8ae89332894118d2f53176d82b/NACC_ Report_to_Ministers_February_23_2007.pdf (visited Nov. 17, 2007).

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and medium-term goals for the SPP process.80 There is no comparable avenue for the direct voicing of comments by other civil society groups, which again suggests that the SPP is understood to be a narrow exercise without broad policy ramifications for the public at large. Integral to the SPP as a whole is the conscious linking of security with prosperity,81 but beyond this overarching goal the SPP does not articulate any coherent vision of a future North America, nor does the SPP seek to root its work program in a normative framework. Rather the approach is technocratic and problem oriented. The SPP agendas identify a large number of small problems and indicate types of cooperative outcomes that would solve the problem.82 Given this approach, the agendas themselves are a disparate collection of policy initiatives. Perhaps given this lack of focus, at the 2006 Summit, the leaders identified five priority areas for special attention: (1) the creation of the NACC; (2) cooperation on avian and pandemic influenza; (3) North American energy security; (4) North American emergency management; and (5) smart and secure borders.83 In keeping with other forms of transgovernmental networks, the SPP has no formal institutional structure, nor has the SPP resulted in the creation of any institutions beyond the NACC. The structure at present is that each of the various working groups, which correspond to the classification of initiatives in the SPP agendas, report back to lead ministers, who in turn report to the leaders. There is no formal or informal role for the legislative branches. Indeed, in a well-publicized statement, one member of the NACC noted, “[w]e’ve decided not to recommend any things that would require legislative changes . . . [b]ecause we won’t get anywhere.”84 Each state is responsible for appointing persons to the working groups, although in

80

See id.

81

See Joint Statement (Mar. 23, 2005) (cited in note 65) (indicating “[t]his work will be based on the principle that our security and prosperity are mutually dependent and complementary, and will reflect our shared belief in freedom, economic opportunity, and strong democratic values and institutions.”).

82

The June 2005 Report to Leaders contains a Security Annex and Prosperity Annex, which set out in greater detail the proposed action to be taken and timeframe for completion for each initiative identified in the Security Agenda and Prosperity Agenda. See Security and Prosperity Partnership of North America, June 2005 Report to Leaders, ( June 2005), available online at http://www.spp.gov/report_to_leaders/index.asp?dName=report_to_leaders (visited Nov. 17, 2007).

83

See Joint Statement (Mar. 23, 2005) (cited in note 65).

84

Luiza Savage, Meet NAFTA 2.0, Maclean’s 28, 28 (Sept. 11, 2006) (quoting Ron Corvais). This statement appears to be confirmed by Michael Hart (a former Canadian trade negotiator and a member of the Independent Task Force on the Future of North America) who notes: The biggest problem that I see with [the SPP] is that it is an initiative that is limited to what can be done by the three governments within their existing legislative mandates. There’s a commitment that they will not do things that will require them to go to Parliament or to Congress in order to make changes.

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a number of cases it appears that pre-existing networks were brought into the SPP process. For example, the North American Energy Working Group, which was established in 2001, became the network for the energy initiatives under the SPP.85 Similarly, the North American Steel Trade Committee, established in 2002 to pursue a North American Steel Strategy, began to report through the Manufactured Goods and Sectoral and Regional Competiveness Working Group.86 Given the wide-ranging nature of the agenda items within the working groups, there appears to be a further division of labor within working groups resulting in the creation of more focused subgroups. There are no formal requirements for working groups to consult with stakeholders, although they are clearly free to do so.87 The difficulty is that beyond the base documents, there has been little attempt made at general dissemination of information regarding working group activities. There are, for example, no readily available lists of which officials are part of which working groups, when meetings are held, what matters are discussed, and who is consulted. Unlike most transgovernmental networks where the network itself is responsible for setting its own agenda, the SPP process is highly centralized. The executive branches of each government were jointly responsible for creating the Prosperity and Security Agendas, which not only identified the network’s outcomes, but also identified timeframes.88 The criteria by which agenda items were determined for inclusion is not disclosed, although by taking advantage of the work of existing networks, it is evident that the framers of the SPP sought to bring into that process a number of ongoing initiatives.89 In addition, many of the initiatives appear to be derived from the issues identified by the private sector.90 The result is an eclectic mixture of initiatives that lacks any real coherence.91

Evidence of Michael Hart, Standing Committee on International Trade, 39th Can Parl, 1st Sess 1140 (May 3, 2007), available online at http://cmte.parl.gc.ca/cmte/CommitteePublication. aspx?SourceId=206477 (visited Nov. 17, 2007) (hereinafter “Evidence of Michael Hart”). 85

North American Energy Working Group, Overview, available online at http://www.pi.energy. gov/documents/NAEWGBkg020306.pdf (visited Nov. 17, 2007).

86

Discussed in Security and Prosperity Partnership of North America, June 2005 Report to Leaders (cited in note 82).

87

There is a general SPP Comment Form by which members of the public can forward comments to particular working groups. See Security and Prosperity Partnership of North America, SPP Comment Form, available online at http://hq-intranet04.usfcs.doc.gov/bid/spp/ comment.asp (visited Nov. 17, 2007).

88

The timeframes are identified in the Security and Prosperity Annexes to the June 2005 Report to Leaders. See Security and Prosperity Partnership of North America, June 2005 Report to Leaders (cited in note 82).

89

See Evidence of Michael Hart at 1140 (cited in note 84).

90

For example, many of the issues identified by the CCCE and subsequently by the Independent Task Force on the Future of North America have been incorporated into the SPP.

91

See Roland Paris, A Trilateral Mishmash, Globe and Mail at A17 (cited in note 4).

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Consider, for example, the initiatives included in the environment and energy portions of the Prosperity Agenda.92 The environmental agenda is at once both far-reaching and narrow. The matters addressed include clean air and water, biological diversity, marine resources, and transboundary environmental impacts. However, none of these issue areas is tackled in a manner that approaches comprehensiveness. Instead, the Agenda tends to identify quite specific deliverables, such as increasing supply of low sulfur fuel to Mexico, addressing ship-source air pollution, developing options to advance ocean observation in the Arctic as input to International Polar Year, or concluding a transboundary environmental impact assessment agreement.93 In most of these cases, the specific initiative identified preceded its identification in the SPP. For example, the conclusion of a transboundary environmental impact assessment agreement has been part of the NACEC’s work plan for over ten years, being identified in the North American Agreement on Environmental Cooperation itself.94 Another deliverable, signing the Declaration of Intent for the Conservation of North American Birds and their Habitat, was the work of an existing Tri-National Committee of the North American Bird Conservation Initiative created under the auspices of the NACEC.95 The energy agenda similarly relies on the presence of pre-existing network structures and their work programs, such as the North American Energy Working Group, and the established experts groups within it, as well as the North American Electric Reliability Council.96 The Environment and Energy Working Groups appear to operate largely as conduits, directing specific initiatives to smaller working groups and existing networks, and then reporting back on progress and outcomes to the lead ministers and leaders. The transfer of existing networks and their work programs raises the question of why these existing networks needed to be brought into the SPP process at all. 92

The specific deliverables are set out in Security and Prosperity Partnership of North America, 2006 Report to Leaders, Prosperity Annex 25–30 (Aug. 2006), available online at http:// www.spp.gov/2006_report_to_leaders/prosperity_annex.pdf?dName=2006_report_to_leaders (visited Nov. 17, 2007) (hereinafter “2006 Report to Leaders”).

93

Id. at 29–30.

94

North American Agreement on Environmental Cooperation, art X(7) (cited in note 35). For a discussion of this process, see Neil Craik, Transboundary Environmental Impact Assessment in North America: Obstacles and Opportunities, in Kees Bastmeijer and Timo Koivurova, eds, The Theory and Practice of Transboundary Environmental Impact Assessment ch 5 (Hotei 2007).

95

See North American Bird Conservation Initiative, Declaration of Intent for the Conservation of North American Birds and their Habitat: Questions and Answers, (May 25, 2005), available online at http://www.nabci-us.org/aboutnabci/Q&A-NABCI-DOI.pdf (visited Nov. 17, 2007).

96

To be clear, not all of the agenda items were derived from existing initiatives. One of the energy initiatives was to increase oil sands production to increase continental energy supplies, which resulted in the creation of an ad hoc oil sands expert group. See 2006 Report to Leaders, Prosperity Annex at 26 (cited in note 92).

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What the SPP offers that the existing frameworks do not is the ability of the central governments to exert greater control over the priorities and work plans of the networks. To the extent that the SPP process is permeable to democratic influences, the greater control exercised by visible politicians should be seen as improving the democratic responsiveness and efficacy of the networks. By identifying agenda items and timeframes for their completion, the central governments enable networks by directing departmental resources to given issues and signaling the political importance of the initiative to bureaucrats as a means to surmount bureaucratic inertia. The corollary is that those issues not identified may suffer from neglect. In this regard, it is noteworthy that many of the most pressing environmental issues, such as climate change, are not addressed in the SPP.97 A further implication of the central governments’ agenda-setting power is that outcomes are likely to be affected by the working group to which an issue is assigned. For example, the pesticide, new chemical, and biotechnology initiatives are all under working groups other than the Environmental Working Group.98 The point is not that there is a correct network for addressing these issues, but rather that because of the cross-cutting nature of these issues, care needs to be taken to ensure that the network members have sufficient access to relevant government expertise and policy input. Given that the selective membership of networks may impact the information made available (or deemed relevant) to network members, there is a concern that governments can affect outcomes by excluding certain viewpoints, within and outside the government, from the deliberation process. While this might be done consciously, it is, in our view, more likely to be an unintended consequence of the centralized determination of network agendas. Central governments have sought to distance the SPP process from the idea that the SPP is directed towards the creation of a supranational government.99 Despite this disavowal, the SPP is clearly oriented towards integration. In this regard, the SPP is best seen as a compromise between two alternative approaches to continental governance in North America: the “big idea” and incrementalism.100 Incrementalism seeks to address issues requiring cooperation on a case-by-case basis, while the “big idea” seeks to address integration on a comprehensive level, akin to the European Union, through the creation of common institutions and a 97

Outside the environmental area, critical trade issues such as softwood lumber and trade dispute resolution have also been left out of the SPP. See Paris, A Trilateral Mishmash, Globe and Mail at A17 (cited in note 4).

98

New chemicals fall under the Manufactured Goods Working Group, while pesticides and biotechnology come under the Food and Agriculture Working Group. See 2006 Report to Leaders, Prosperity Annex at 9 (chemicals), 35 (pesticides) (cited in note 92).

99

See SPP Myths v. Facts (cited in note 15).

100

Canadian Council of Chief Executives, New Frontiers at 4 (cited in note 72). For background on this debate, see Peter Hakim and Robert Litan, eds, The Future of North American Integration: Beyond NAFTA (Brookings Inst 2002); Robert Pastor, Toward a North American Community: Lessons from the Old World for the New (Inst Int’l Econ 2001).

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broad, unifying vision of a North American community.101 The SPP seeks to capture some of the advantages of comprehensive integration without getting mired down in a more abstract debate about sovereignty and attracting the political frictions that would accompany a more formal approach. In the words of the Economist: “From the integrators’ perspective, one advantage of the SPP is the absence of any ‘big bang’: the officials can operate below the political radar, without involving the American or Mexican Congress or Canada’s Parliament.”102 In particular, what the SPP offers that pure incrementalism does not is an opportunity to link issues, to allow for trade-offs across issues, and to provide for a more comprehensive approach to regional integration.103 In addition, packaging the initiatives together provides greater political momentum to move forward on issues.104 Seen in this light, the SPP marries the US desire for enhanced North American security, including energy supply security, with the Canadian and Mexican desire for uninterrupted access to the US marketplace. The SPP’s centralized form of transgovernmentalism facilitates this middle ground by allowing government officials to work toward greater integration on identified issues within their area of expertise, while the central governments can oversee the agenda and ensure that any tradeoffs are acceptable. IV. SUPERHIGHWAYS AND HIDDEN AGENDAS: THE SPP’S CRITICS One might expect the presence of greater central government control to mitigate concerns over the accountability of transgovernmental networks. This concern arises because of the perception that individual agencies are engaging in decisionmaking processes outside the usual domestic legal framework. The SPP appears to address this concern by having the agenda more closely controlled by the political executives of each of the partner countries. However, as noted in the Introduction, the SPP has been subject to a barrage of criticism from both sides of the political spectrum. In essence, the debate over the SPP is centered on whether it is, as its proponents maintain, an incremental and technical exercise,105 or whether it has 101

Perhaps the most prominent advocate of the “big idea” is Robert Pastor. See Pastor, Toward a North American Community (cited in note 100).

102

Living with Number One, Economist at 10 (cited in note 74).

103

Canadian Council of Chief Executives, New Frontiers at 4 (cited in note 72).

104

Evidence of Michael Hart at 1140 (cited in note 84): What the SPP did . . . is take many of these ongoing initiatives and package them together to provide a little bit more political jazz to them, and what’s useful to officials, in order to provide them with some political leadership. To an official working on a problem, the kind of speed and intensity with which you address those issues is dependent on the amount of political leadership you see, the amount of political commitment you see to a problem.

105

See Evidence of Alain Beaudoin (Executive Director, Innovation Partnership Branch, Department of Industry, Canada), Standing Committee on International Trade, 39th Can Parl, 1st Sess 1105 (May 10, 2007), available online at http://cmte.parl.gc.ca/Content/HOC/committee/ 391/ciit/evidence/ev2934562/ciitev62-e.htm#Int-2072697 (visited Nov. 17, 2007) (describing

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grander ambitions to implement “deep integration” and eventually establish North American supranational institutions.106 The result is a sort of nondebate, with opponents pointing to hidden agendas and grand schemes and the governments maintaining that the SPP simply provides a forum for bureaucrats to resolve technical issues. So, for example, in Canada, the debate on the environmental and resource aspects of the SPP has been dominated by claims that the SPP will lead to a loss of control over natural resources, bulk water exports from Canada to the United States, and the adoption of lower environmental standards.107 In the United States, the debate has focused on immigration and, puzzlingly, on the potential for the building of a “NAFTA superhighway.”108 There is nothing within the SPP process that lends credence to these criticisms. Indeed, the governments have explicitly denied that bulk water exports and the construction of a superhighway form any part of the SPP agenda. Nevertheless, these issues persist and have even been taken up by the legislative branches of the

the SPP “as a step-by-step, practical approach to improve the way governments work together to enhance competitiveness”). 106

“Deep integration” is described by one critic in the following terms: “the idea is that the more governments harmonize regulations across borders, the ‘deeper’ economic integration has been achieved. It is not just about policy harmonization in North America. It is policy harmonization that increasingly opens social life across the continent to the discipline of the market.” Teresa Healey, Deep Integration in North America: Security and Prosperity for Whom?, Canadian Labour Congress Research Paper 42 (Feb.2007), available online at http://canadianlabour. ca/index.php/Deep_Integration/1134 (visited Nov. 17, 2007). See also Andro Linklater, The Center Shouldn’t Hold, NY Times A17 ( July 4, 2007) (noting “[a]nti-immigration drum-beaters like CNN’s Lou Dobbs and Representative Virgil Goode, a Virginia Republican, routinely portray the [SPP] as a threat to United States sovereignty.”). Conservative activist Jerome Corsi has written a book condemning the SPP as part of an elaborate long-term strategy by multinational corporations to create a single continental market. See Luiza Savage, Even the Best Neighbours Can Get Suspicious, Maclean’s 44 (Aug. 13, 2007).

107

Andrew Nikiforuk, Adele Hurley, and Ralph Pentland, Sold Down the River; Despite Claims to the Contrary, Water is on the Table in Trade Negotiations – We Need to be Clear With Our Neighbours That We Intend to Keep This Precious Resource, Ottawa Citizen A11 (Sept. 10, 2007) (“The fate of our water resources is now dependent on shadowy discussions taking place under the aegis of the Security and Prosperity Partnership (SPP), the all-purpose negotiating forum set up by the three NAFTA leaders in 2005.”). On control over energy resources, see Gordon Laxer, Easterners Could Freeze in the Dark, Globe and Mail A15 (May 28, 2007).

108

For a representative rendition of this argument, see Ron Paul, The NAFTA Superhighway, available online at http://www.house.gov/paul/tst/tst2006/tst103006.htm (visited Nov. 17, 2007) This superhighway would connect Mexico, the United States, and Canada, cutting a wide swath through the middle of Texas and up through Kansas City. Offshoots would connect the main artery to the west coast, Florida, and northeast. Proponents envision a ten-lane colossus the width of several football fields, with freight and rail lines, fiber-optic cable lines, and oil and natural gas pipelines running alongside.

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governments.109 It is equally salient that very little of the criticism of the SPP’s environmental agenda has focused on the actual initiatives undertaken within the SPP process, which appear constructive and oriented towards improved environmental performance.110 The focus is not on what the SPP actually is; rather, the criticism centers on the potential of the SPP to derogate from the authority of national governments to set domestic policy–be it on energy, the environment, or immigration–independently from the market, and from their trading partners. The mistrust inherent in this form of critique is exacerbated by concerns regarding the democratic legitimacy of the SPP process.111 These concerns relate to three aspects of the SPP process. Firstly, there is a sense that the central governments have quite deliberately turned away from the legislative process.112 Secondly, the process has not offered meaningful opportunities for public consultation. Public consultation is the responsibility of individual working groups, but there is little evidence to date that working groups have opened up their processes to the broader public. And finally, while civil society has been shut out of the process, members of the business elite, as represented by the North American Competitiveness Council, have been granted direct access to the leaders and appear to have had many of their concerns taken up. The NACC has been a lightning rod for critics. At the Montebello Summit, civil society critics were quick to point out that while they were cordoned off, well away from the leaders’ meeting, the members of the NACC met directly with the leaders.113 There is a clear link between the concerns over process legitimacy and the nature of substantive complaints raised by critics. The critics have seized on documents and statements made by integration proponents outside the government and have

109

The Canadian House of Commons has debated the bulk water export issue in relation to the SPP, 161 House of Commons Debates (Hansard) 9958 (May 31, 2007) (statement of Mr. Serge Cardin), available online at http://www2.parl.gc.ca/HousePublications/Publication.aspx ?Language=E&Mode=1&Parl=39&Ses=1&DocId=2989762#Int-2114181 (visited Nov. 17, 2007). In the United States, a transportation bill was amended to include a provision blocking federal funding for a superhighway and for Department of Transportation participation in SPP working groups. See Savage, Even the Best, Maclean’s at 45 (cited in note 106).

110

The concerns regarding the Security Agenda initiatives are more directed at the actual outcomes. See, for example, Emily Gilbert, Leaky Border and Solid Citizens: Governing Security, Prosperity and Quality of Life in a North American Partnership, 39 Antipode 77 (2007).

111

In this regard the debate over the SPP tracks similar debates regarding the democratic legitimacy of transgovernmental networks generally. See Slaughter, A New World Order at 217–30 (cited in note 5).

112

See Evidence of Maude Barlow (National Chairperson, Council of Canadians), Standing Committee on International Trade, 39th Can Parl, 1st Sess 1125 (May 1, 2007), available online at http://cmte.parl.gc.ca/cmte/CommitteePublication.aspx?SourceId=206020 (visited Nov. 17, 2007).

113

Norma Greenaway and Richard Foot, Haroper Broaches Arctic; PM Opens Summit with Bush, Calderon, National post, (Aug. 21, 2007), A1.

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incorrectly attributed those views to the government. For example, the connection between bulk water export and the SPP has largely arisen because of the inclusion of a recommendation by the Independent Task Force on the Future of North America that those sectors excluded from NAFTA (such as bulk water export) be the subject of further review, and because the issue was raised at a meeting organized by a Washington, DC think tank on North American integration.114 In neither case did the suggestions regarding bulk water exports come from government officials. There has been no indication from governmental officials that bulk water exports are to become part of the SPP process. Similarly, the superhighway issue has been given an air of reality because of the existence of a nongovernmental group (again unconnected to the SPP) promoting better North-South transportation corridors. The closed nature of the SPP process and its close affiliation with the private sector invites this kind of attribution because the line between the public process and private demands has been blurred.115 In some cases, placing an issue within the SPP process has reduced the avenues of public participation. When the negotiation of the transboundary environmental impact assessment agreement was the responsibility of the NACEC, that process provided for citizen oversight through the Joint Public Advisory Committee and the NACEC’s own procedures for openness.116 Moving the issue into the SPP process has foreclosed this option, leaving the current status of negotiations and the process for public consultation uncertain.117 Not all of the concerns raised by the critics of the SPP fall outside the identified initiatives. The areas of pesticide and chemical regulation, both of which are addressed in the Prosperity Agenda,118 have attracted concerns regarding the potential for

114

Maude Barlow, Where’s the Transparency, Globe and Mail (cited in note 1).

115

See, for example, Paris, A Trilateral Mishmash, Globe and Mail at A17 (cited in note 4). Notwithstanding the government’s view that these criticisms are coming from outside the mainstream, they have felt compelled to respond. The US government has set up a SPP Myths vs Facts webpage (cited in note 15).

116

The role of the Joint Public Advisory Committee within the CEC is described in John Wirth, Perspectives on the Joint Public Advisory Committee, in Markell and Knox, eds, Greening NAFTA 199 (cited in note 36).

117

These concerns are set out in Petition Filed by Sierra Legal Defence Fund under Section 22 of the Auditor Generals Act, Petition No. 166 (Apr. 4, 2006), available online at http://www.oag-bvg. gc.ca/domino/petitions.nsf/viewe1.0/71CB737BBBD0AF5F852571B1007ADBF4 (visited Nov. 17, 2007).

118

2006 Report to Leaders, Prosperity Annex at 9 (chemicals), 35 (pesticides) (cited in note 92). Chemical regulation is also the subject of a separate agreement that arose out of the Montebello Summit. See Canada/United States/Mexico SPP Regulatory Cooperation Framework, Regulatory Cooperation in the Area of Chemicals, available online at http://www.spp.gov/pdf/ spp_reg_coop_chemicals.pdf (visited Nov. 17, 2007).

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harmonization and shifts in regulatory approaches.119 Here as well, there appears to be little agreement on the basic orientation of the initiatives, with the critics characterizing the approach as leading inexorably to a harmonized regulatory regime120 while government officials deny those objectives, preferring to differentiate between harmonization and regulatory cooperation.121 Instead of the debate addressing the extent and merits of regulatory cooperation, it focuses on the intent of the governments to achieve an end they specifically deny. The government response to the criticism has been to emphasize the SPP’s nonbinding and technical nature. A Canadian trade official described the SPP in these terms: There is a misunderstanding among many that the governments have a legally binding agreement, or an agreement of any kind, that defines the partnership. In fact, it is a process by which governments seek to cooperate more fully on a range of issues.

With respect to each government, we have our own processes to engage the public and the stakeholders if we’re talking about a change of policy, law, or regulation. Through the partnership, we are attempting to identify areas where individually we might choose to make changes that would work if they were done together. But they are subject to the usual oversight that all of our changes would have.122 The supporters of the process tend to view it as 300 distinct technical initiatives, as opposed to a unified process of integration.123 Seen this way, there is no hidden

119

See Evidence of Peter Julian, Standing Committee on International Trade, 39th Can Parl, 1st Sess 1140 (May 10, 2007) (raising concerns with harmonization of pesticide standards), available online at http://cmte.parl.gc.ca/cmte/CommitteePublication.aspx?SourceId=208182 &Lang=1&PARLSES=391&JNT=0&COM=0 (visited Nov. 17, 2007) (“Evidence of Peter Julian”). See also Bruce Campbell, More Than Jellybeans: The SPP Regulatory Framework Agreement and its Impact on Chemicals Regulation, Canadian Centre for Policy Alternatives (Sept. 2007), available online at http://www.policyalternatives.ca/documents/National_Office_ Pubs/2007/More_Than_Jellybeans.pdf (visited Nov. 17, 2007) (discussing concerns that regulatory cooperation could lead to increased deregulation).

120

Campbell, More Than Jellybeans at 7 (“The cumulative effect, however, is hugely significant as we move closer to the endpoint: a single continental regulatory regime whose shape is determined informally by the large partner.”) (cited in note 119).

121

CanWest News Service, Ottawa Not Harmonizing Chemical Rules, Financial Post FP6 (Sept. 28, 2007) (quoting spokesperson for Canadian Health Minister, “We are not harmonizing. We are co-operating . . . Harmonizing is a completely different concept.”).

122

Evidence of William Crosbie (Director General, North America Bureau, Department of Foreign Affairs and International Trade), Standing Committee on International Trade, 39th Can Parl, 1st Sess 1105 (Apr. 24, 2007), available online at http://cmte.parl.gc.ca/Content/HOC/ committee/391/ciit/evidence/ev2861332/ciitev57-e.htm#Int-2025319 (visited Nov. 17, 2007).

123

Evidence of David Stewart-Patterson (Executive Vice-President, CCCE), Standing Committee on International Trade, 39th Can Parl, 1st Sess 1120 (Apr. 26, 2007), available online at http:// cmte.parl.gc.ca/cmte/CommitteePublication.aspx?SourceId=204967 (visited Nov. 17, 2007) (“[t]he initial SPP agenda included some 300 items. Many of these represent very small steps

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agenda; rather the SPP is what it appears to be. Moreover, the centralizing function of the government manifested in packaging these initiatives has the effect of shedding more, not less, light on the process. Given that much of the network activity was ongoing prior to the SPP, but with little attention given to it, it is evident that the SPP, and particularly the Leaders’ Summits, have generated a greater awareness of the ongoing process of regional integration. However, it also remains true that the debate is largely dominated by “experts and enthusiasts,” as opposed to the broader citizenry.124 By characterizing the process as being largely technical, the central governments gloss over the essential governmental nature of the SPP. As discussed above, much of what the SPP contemplates undertaking goes beyond exchanging information. Many of the initiatives contemplate harmonization of standards, equivalency, and mutual recognition agreements. The response to concerns about possible lower standards resulting from harmonization has been to provide assurances that high standards will be maintained and that regulatory changes will be subject to the usual domestic processes.125 The difficulty is that the SPP process provides no clear direction on the issue of standards in terms of both substance and procedure.126 Concerns about the nature of convergence are not without foundation. Raustiala’s study indicates that regulatory convergence will often result in the adoption of the standards of more powerful states,127 which in the context of North America would suggest that US standards are more likely to be adopted, even if they are lower.128 Whether harmonization up or down makes sense will, of course, depend on a host of factors, many of which will be technical. But such a decision will also require consideration of the distributive consequences and value-based concerns that inhere in decisions regarding environmental standards, and as such needs to be

and individually won’t make much of a difference. On the other hand, even 300 small steps, if we take them all, add up to a pretty giant leap for North America and without any need for a grand bargain.”). 124

Slaughter, A New World Order at 9–10 (cited in note 5) (quoting Martin Shapiro, Administrative Law Unbounded: Reflections on Government and Governance, 8 Ind J Global Legal Studies 369, 376 (2001)).

125

See, for example, the SPP Myths vs Facts webpage (cited in note 15), addressing this issue.

126

For example, the SPP refers to “regulatory cooperation,” which reveals little about the extent and nature of coordinated regulatory activity. See, for example, Security and Prosperity Partnership of North America, Canada/US/Mexico SPP Regulatory Cooperation Framework, available online at http://www.spp.gov/pdf/spp_reg_coop_final.pdf (visited Nov. 17, 2007) (“Regulatory Cooperation Framework”).

127

Raustiala, 43 Va J Int’l L at 58–61 (cited in note 5).

128

Canadian critics have pointed to the adoption of lower US pesticide residue standards, as an example of this tendency. See Evidence of Peter Julian at 1140 (cited in note 119); Lori Wallach, Accountable Governance in an Era of Globalization: The WTO, NAFTA and the International Harmonization of Standards, 50 Kan L. Rev 823, 831 (2001–02).

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subject to public deliberation. The direction of the SPP, and of the recently adopted SPP Regulatory Cooperation Framework,129 is to favor international and “domestic voluntary consensus standards,” placing a further burden of justification on those who wish to deviate from those standards. This direction represents a form of indirect delegation to those standard creation bodies, with little direct input available to those affected by their decisions. Providing that regulatory changes conform to domestic administrative requirements is a formal response to a process that is understood to operate more on the basis of soft power than binding obligations.130 Here too the approach seems to ignore the informal and international nature of transgovernmentalism. The practical concern is that domestic administrative safeguards alone will not effectively provide for accountability when the decisionmaking process exists outside the domestic political system, even where the network members exercise their authority formally within the domestic system. If, however, one recognizes that the transgovernmental networks themselves are exercising authority, albeit soft power, then the locus of authority shifts from the purely domestic to the transnational. One possible solution is to extend the procedural requirements to the network itself.131 Determining what those procedural safeguards might be is highly complicated in light of the informality of networks and the fact that network efficacy depends to a significant degree on the shared values of the network members, as opposed to the formal exercise of authority. In Slaughter’s words: As any feminist who has battled ‘the old boy network’ will quickly recognize, the informality, flexibility, and decentralization of networks means that it is very difficult to establish precisely who is acting and when. Influence is subtle and hard to track; important decisions may be made in very informal settings. As Martti Koskenniemi argues . . . giving up form and validity is ceding fundamental constraints on power.132

However, it is plain that providing privileged network access to regulated entities while at the same time excluding regulatory beneficiaries is not a sustainable position. In a governance structure where the ability to exercise influence is closely linked to the provision of information, being able to frame problems and to present 129

Regulatory Cooperation Framework (cited in note 126).

130

This approach is affirmed in the SPP Myths vs Facts website (cited in note 15): “If an agency were to decide a regulatory change is desirable through the cooperative efforts of SPP, that agency is required to conform to all existing U.S. laws and administrative procedures, including an opportunity to comment.”

131

For one proposal based on US administrative norms, see Richard Stewart, U.S. Administrative Law: A Model for Global Administrative Law, Institute for International Law and Justice Global Administrative Law Series–Working Paper No 2005/7 (May 2005), available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=723147 (visited Nov. 17, 2007).

132

Slaughter, Governing through Government Networks at 193–94 (cited in note 9).

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preferred regulatory solutions is a significant advantage that should not be preferentially conferred. The idea that the SPP is simply the sum total of its parts and nothing more also invites further scrutiny. At the heart of the critiques of the SPP is the opposing notion that the SPP is much more than what is presented. It is in this regard, we have suggested, that the critics of the SPP are less concerned with what the SPP is and more concerned with what it might be. If one considers the evolutionary nature of transgovernmental networks, then the structure of the SPP should be understood as dynamic and oriented towards convergence. This is quite different from a hidden agenda, which seems to imply a duplicity for which there is no evidence. Rather, the concern might be better phrased as relating to the lack of clear boundaries within the process. The absence of boundaries is particularly acute with the SPP because of the breadth of the overall scheme. Network governance is more likely to be found acceptable where the agencies involved already enjoy considerable independence domestically. Thus, in the case of financial regulators such as central banks and securities regulators, insularity from political interference adds to their legitimacy. As a result, the exercise of that independence collectively in support of shared goals should be less controversial because their independence is broadly accepted and they are understood to exercise that independence only within the confines of their mandate. The SPP, by comparison, involves departments that operate under tighter political controls and provides no clear boundaries on what activities are subject to network decisionmaking. If the evolutionary nature of networks is to be taken seriously, then it follows that there needs to be clearly understood limits to the extent and scope of network activity. V. NETWORK LEGITIMACY AND THE SPP Ultimately, the stability of transgovernmentalism as an approach to governance depends on the legitimacy of the network. In this regard, the SPP’s framers rely on a thin version of legitimacy based on the technical expertise of expert members and a highly formalistic version of procedural legitimacy. However, as the debate over the SPP suggests, this version of legitimacy is insufficient in light of the nature of transgovernmental networks. Expert legitimacy, which justifies authority based on the qualifications of the decisionmakers, assumes a rationalistic decisionmaking environment where right answers can be determined. This environment in turn assumes broad-based agreement on the regulatory ends sought.133

133

See Daniel Bodansky, The Legitimacy of International Governance: A Coming Challenge for International Environmental Law, 93 Am J Int’l L 596, 619–23 (1999) (discussing the limitations of expertise and science as a basis for legitimacy in international environmental governance). See also Stephen Bernstein, Legitimacy in Global Environmental Governance 1 J Int’l L & Int’l Rel 139 (2005); Neil Craik, Deliberation and Legitimacy in Transnational

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If one accepts the SPP as simply an aggregation of technical problems, then the delegation of authority to networks is largely unproblematic. Indeed, the SPP succeeded in generating cooperative solutions to important issues such as emergency planning, adequate responses to pandemics, and energy performance standards.134 These are not trifling accomplishments, and they certainly point to the value of networks in resolving technical issues. However, many of the issues, including those relating to access to energy supply and the nature and extent of environmental regulation, cannot be rooted solely in expert legitimacy since these issues require a careful balancing of competing values and objectives. Indeed, even the determination of whether an issue is technical is likely to be controversial and must itself be made with reference to substantive criteria.135 In this regard, it is helpful to compare other approaches to transnational environmental governance with the SPP process. As noted, there are numerous existing transgovernmental networks in the environment field.136 In addition, multilateral environmental agreements frequently resort to forms of delegated decisionmaking through the use of subsidiary decisionmaking bodies, such as Conferences of the Parties (“COP”) and Meetings of the Parties (“MOP”), which also provide a measure of autonomy to the participants.137 However, unlike the SPP process, these institutions are bound by agreed-upon substantive principles. For example, the North American Agreement on Environmental Cooperation, which created the NACEC, contains an unequivocal commitment to maintain and to improve environmental quality.138 Similarly, the Air Quality Agreement defines the role of the Air Quality Committee in light of an overarching environmental objective.139 In relation to MOPs and COPs, these subsidiary bodies play a crucial role in

Environmental Governance: The Case of Environmental Impact Assessment, 38 Victoria U Wellington L. Rev 381 (2007). 134

Joint Statement of Prime Minister Harper, President Bush and President Calderón, at North American Leaders’ Summit (Aug. 21, 2007), available online at http://www.spp.gov/pdf/ leaders_statement_2007_english.pdf (visited Nov. 17, 2007) (outlining the accomplishments of the SPP since the previous leaders summit).

135

See, for example, Jacqueline Peel, International Law and the Legitimate Determination of Risk: Is Democratising Expertise the Answer?, 38 Victoria U Wellington L. Rev 363, 365–66 (2007) (discussing fluid boundaries between science and politics in environmental decisionmaking).

136

See discussion of NACEC, INECE, and Canada–US Air Quality Committee, in Section II above.

137

See Churchill and Ulfstein, 94 Am J Int’l L at 626–28 (cited in note 38) (discussing growing autonomy of subsidiary bodies in MEAs); Brunnée, 15 Leiden J Int’l L 1 (cited in note 39) (providing a more specific discussion of the legitimacy concerns the autonomy of subsidiary bodies gives rise to and how these concerns may be mediated through process-oriented measures).

138

North American Agreement on Environmental Cooperation, preamble, art I (cited in note 35).

139

See Canada–US Air Quality Agreement, preamble (cited in note 30).

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implementing and deepening the commitments found in multilateral environmental agreements, but they do not have unfettered freedom to determine future normative arrangements. Rather, they must remain faithful to the underlying purposes of the regime. Thus, in the same manner that domestic administrative agencies are required to exercise their authority within the limits of the delegation granted to them, international instruments provide constraints on the exercise of discretion by transnational decisionmakers. As with many domestic delegations of authority, these substantive constraints are limited because they are framed as principles in broad, open-ended prescriptions. Consequently, these exercises of authority must adhere to procedural norms, such as transparency, inclusivity, and a commitment to reasoned decisionmaking. The NACEC, for example, provides opportunities for citizen engagement through its citizen submissions process and Joint Public Advisory Committee.140 Similarly, many subsidiary treaty bodies in multilateral environmental agreements provide extensive participatory rights to nongovernmental organizations.141 Adherence to procedural norms has both instrumental and noninstrumental ends. In relation to the former, inclusivity is intended to improve and to broaden the information that is brought to bear on decisions. For example, the decision to create the NACC has largely been justified on the grounds that business leaders are in the best position to advise bureaucrats on matters relating to North America’s competitive position.142 The noninstrumental benefits of process are that decisions that account for the views of those that are affected and which are justified in light of shared values are more likely to be accepted, even by those whose interests are prejudiced by the decision. Transparency can protect against rent-seeking minorities negatively influencing outcomes.143 Generating acceptance through the provision of reasons is where procedural legitimacy interfaces with substantive legitimacy. In order for reasons to be acceptable they must appeal to shared substantive values.144

140

See David Markell, The CEC Citizen Submission Process: On or Off Course, in Knox and Markell, eds, Greening NAFTA 274 (cited in note 36); John Wirth, Perspectives on the Joint Public Advisory Committee at 199 (cited in note 36).

141

See Jonas Ebbeson, Public Participation, in Daniel Bodansky, Jutta Brunnée, and Ellen Hey, eds, The Oxford Handbook of International Environmental Law 681, 689–92 (Oxford 2007).

142

See North American Competitiveness Council, Enhancing Competitiveness in Canada, Mexico and the United States 10 (Feb.2007), available online at http://www.ceocouncil.ca/ publications/pdf/test_4d5f2a8ae89332894118d2f53176d82b/NACC_Report_to_Ministers_ February_23_2007.pdf (visited Nov. 17, 2007).

143

For a discussion of small group influence on a state’s external agenda, see Eyal Benvenisti, Sharing Transboundary Resources: International Law and Optimal Resource Use 53–58 (Cambridge 2002).

144

See Amy Gutmann and Dennis Thompson, Why Deliberative Democracy? 25 (Princeton 2004) (discussing the inadequacy of procedural norms alone to act as a basis for reciprocal justification in deliberative processes).

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In this vein, Slaughter argues that transgovernmentalism, if it is to become a stable form of transnational governance, must be situated within a shared normative framework: What is still missing from this order, however, is norms. Power without norms is both dangerous and useless. It is dangerous because of the risk of abuse. It is useless because it lacks purpose. The answer in both cases is to harness power and to constrain it through norms.145

Our analysis of the SPP indicates that, unlike other environmental networks, the process is not underlain by any expressed commitment to a shared set of values, procedural or substantive. The difficulty that the SPP faces, in light of its breadth, is finding a set of goals that are genuinely shared. The approach in international environmental law has been to articulate a common commitment to resolve an environmental issue in advance of generating formally binding rules, usually in the form of a framework convention.146 The purpose of the framework convention is to provide a context for the generation of more precise rules over time.147 The efficacy of transgovernmental networks also relies on the identification of common problems and shared normative expectations by network participants. Where networks are demand driven, in the sense that the need for cooperation is identified and pursued by networks themselves, a shared substantive base is generated through self-selection but can deepen through socialization and an ongoing commitment to deliberation. It follows that Slaughter and other network scholars have not identified substantive criteria for networks, as these will depend on the networks themselves. In the case of nested environmental networks, these values are derived from the commitments that inhere within the regime itself. The difficulties in a self-conscious attempt to use transgovernmental networks to effect cooperation across issue areas is that there remains a need for some clear basis upon which network outcomes can be assessed, but generating agreement even at a fairly abstracted level is a politically costly activity. The different forms of legitimacy that networks rely upon, namely expertise, process values, and substantive values, do not operate independently of one another. Instead, where there is an absence of one form of legitimacy, another form compensates for that absence. In light of the lack of a shared substantive commitment to integration and a 145

Slaughter, A New World Order at 215 (cited in note 5).

146

See Günther Handl, Environmental Security and Global Change: The Challenge to International Law, 1 YB Int’l Envir L 3, 5–7 (1990) (discussing use of framework conventions and subsequent negotiation of more specific, rule-based protocols).

147

See Jutta Brunnée and Stephen J. Toope, Environmental Security and Freshwater Resources: Ecosystem Regime Building, 91 Am J Int’l L 26, 30–31 (1997). But see George Downs, Kyle Danish, and Peter Barsoom, The Transformational Model of International Regime Design: Triumph of Hope or Experience?, 38 Colum J Transnatl L 465, 470–73 (2000) (criticizing approaches to regime design that rely on cooperative evolution).

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common understanding of how the competing objectives of the SPP will be traded off against one another, there is an enhanced need for procedural norms to generate legitimacy. However, process is itself not without its costs, and where the costs of inclusivity and transparency outweigh the efficiency and flexibility benefits of networks, the stability of networks as a governance tool is likely to be eroded. Our analysis of the SPP provides support for the view put forward by Raustiala that transgovernmental networks will interact with traditional, treaty based forms of international law “synergistically and supportively.”148 These positive interactions may result in functional benefits, but linkages between treaties and networks also provide opportunities for networks to draw on the substantive legitimacy of treaty commitments, facilitating deeper cooperation. VI. CONCLUSION: THE LESSONS OF THE SPP A study on the extent of transgovernmental networks between Canada and the United States identified at least 240 networks, showing that, even before the SPP, networked governance was pervasive in North America.149 The SPP has sought to capitalize on the presence of networks and further institutionalize their use through the creation of more centrally controlled agenda-setting and reporting processes for networks. Our review of the environmental aspects of the SPP reveal an approach that is ad hoc in the sense that the network activities sought to be conducted appear to be mostly an amalgam of existing initiatives, lacking any overall coherence. The initiatives themselves have not attracted much concern, and indeed, they appear to be oriented towards achieving positive environmental change. Despite the seemingly benign nature of the SPP’s environmental agenda, critics have raised concerns regarding the potential of the SPP to erode environmental values and national sovereignty over resource and environmental policy. The result is an unproductive debate that focuses more on future intentions than present policy. While there is no apparent evidence of many of the specific concerns raised, the nature of the debate itself is in part a product of the structure of the SPP, which provides no underlying substantive vision and affords few procedural protections to citizens potentially affected by policy matters determined through the SPP process. Political oversight by the central executive branches of each of the SPP partners has not resulted in widespread acceptance of the SPP process. The chief failing of the SPP is that its framers have not fully appreciated the nature of transgovernmentalism. Treating networks simply as meeting places for government officials, but not possessed of governmental characteristics, underestimates,

148

Raustiala, 43 Va J Int’l L at 91–92 (cited in note 5) (“Most notably, by promoting capacity building at the domestic level networks can enhance compliance with, and the effectiveness of, existing treaties.”). See also Slaughter and Zaring, 2 Ann Rev of L & Soc Sci at 225 (cited in note 5).

149

Evidence of Michael Hart at 1140 (cited in note 84).

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in our view, the power of networks to generate formal and informal modes of governance. The result is to locate the locus of network authority incorrectly within the state and to anchor network authority solely in domestic legal authority. What is required in our view is a more robust understanding of network legitimacy that draws on a genuinely shared commitment to both procedural and substantive ends. At the center of the SPP debate are deep cleavages regarding the value of integration and the ends which cooperative behavior is meant to serve. The desire to avoid a politically costly debate on regional integration is understandable. However, given the evolutionary nature of networks and their inclination towards convergence, there is a clear need for the delineation of boundaries of network activity and, ultimately, linkage to the legislative branch of the government.

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DIVERSIFYING AMERICA’S ENERGY FUTURE: THE FUTURE OF RENEWABLE WIND POWER Ronald H. Rosenberg†

Copyright © 2008 Virginia Environmental Law Journal Association; Ronald H. Rosenberg. Originally published in Virginia Environmental Law Journal (2008)

I. ENERGY POLICY IN THE UNITED STATES Americans expect abundant supplies of inexpensive energy to fuel their lifestyles. Recently, however, a number of global forces are combining efforts to force government officials and citizens to seriously reconsider the nation’s energy future. These forces reflect three essential concerns about the nation’s use of energy: economic, national security, and environmental. The economic impacts of changing energy prices are most readily observable. When crude oil prices jumped to more than sixty-seven dollars per barrel in August 2006, the price of regular gasoline spiked to a national average of 2.98 dollars per gallon,1 affecting the lives and driving habits of most Americans. Beyond personal consumption, energy functions as an essential part of the American economy, powering the manufacturing, agricultural, and commercial sectors. Recent increased oil prices make American consumers, businesses, and policy makers aware of the effect of higher energy costs on the American economy and the overall quality of life. Higher petroleum prices focus attention on the sustainability of American energy consumption patterns. Even before the oil price hikes during the summer of 2006, President George Bush summarized America’s energy problems in the 2006 State of the Union address in striking terms: “Here we have a serious problem—America is addicted to oil.”2 He reiterated this concern one year later in the 2007 State of the Union speech, challenging Americans to reduce gasoline consumption by twenty percent in ten years and calling for diversification of the nation’s energy †

Professor of Law, Director of the American Legal System Program, William and Mary Law School. The author would like to thank Fred Dingledy, Reference Librarian, Wolf Library, William and Mary Law School, and Frank Correll, William and Mary Law School Class of 2008, for research assistance in the preparation of this Article.

1

See Energy Info. Admin., U.S. Dep’t. of Energy, Monthly Energy Review December 2007, at 132 tbl. 9.4 (2008), available at http://tonto.eia.doe.gov/FTPROOT/multifuel/ mer/00350712.pdf (average monthly gas prices); id. at 129 tbl. 9.1 (average monthly crude oil prices).

2

Address Before a Joint Session of the Congress on the State of the Union, 42 Weekly Comp. Pres. Docs. 145, 150 ( Jan. 31, 2006) [hereinafter 2006 State of the Union Address].

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supply.3 Emphasizing the nation’s security risks from importing increasing amounts of oil from volatile and potentially hostile areas of the world, he stated that U.S. dependency on costly imported petroleum was its most serious energy policy problem.4 Bush’s comments, however, skirted another related global energy issue– the adverse environmental effects from combustion of carbon-based fuels. Gradually, the problems stemming from the high levels of fossil fuel dependency in the United States have been recognized as ones that must be addressed. As the scientific consensus largely concludes that human activities contribute to global warming through the burning of coal, oil, and natural gas,5 American policymakers must now decide how to respond. A broad range of policy and technical alternatives must be evaluated as the United States develops energy plans for the future.6 While energy conservation might hold promise in restraining the rate of growth in energy use,7 all predictions of America’s energy future anticipate higher levels of 3

Address Before a Joint Session of the Congress on the State of the Union, 43 Weekly Comp. Pres. Docs. 57, 59 ( Jan. 23, 2007) [hereinafter 2007 State of the Union Address]. As Governor of Texas, Bush encouraged wind power for the state, resulting in 1999 legislation mandating that Texas electricity companies produce 2000 MW of electricity from renewable sources by 2009. Texas has since become America’s wind power leader, and the Texas legislature raised the renewable energy bar to 5000 MW by 2015. Thomas L. Friedman, Editorial, Whichever Way the Wind Blows, N.Y. Times, Dec. 15, 2006, at A41.

4

2007 State of the Union Address, supra note 3, at 59. The fuel efficiency of American motor vehicles reveals an ever-increasing American demand for motor fuel. While the fuel rate for passenger cars has gradually improved to 22.5 miles per gallon in 2004, up from 21.1 miles per gallon in 1991, the annual average number of miles traveled per passenger car has steadily increased to 12,460 miles per year, up from 10,571 in 1991. Energy Info. Admin., U.S. Dep’t of Energy, Monthly Energy Review February 2008, at 17 tbl. 1.8 (2008), available at http://tonto.eia.doe.gov/FTPROOT/multifuel/mer/00350802.pdf (providing data on vehicle mileage, fuel consumption and fuel rates). The fuel economy of vans, pickup trucks, and SUVs actually declined from levels in the mid-1990s. Id. The number of cars on the roads in the United States increased by approximately fifty-two million between 1990 and 2005. See U.S. Census Bureau, U.S. Dep’t of Commerce, the  Statistical Abstract 680 tbl. 1064 (2008), available at http://www.census.gov/compendia/statab/2008edition.html [hereinafter 2008 Statistical Abstract] (showing motor vehicle registrations).

5

Intergovernmental Panel on Climate Change, Fourth Assessment Report, Working Group I Report: The Physical Science Basis 95 (2007), available at http:// www.ipcc.ch/pdf/assessment-report/ar4/wg1/ar4-wg1-chapter1.pdf.

6

Policy design will undoubtedly be influenced by the economic costs associated with each alternative. Recent analyses differ as to the economic costs of responding to global warming. Compare Nicholas Stern, Stern Review on the Economics of Climate Change (2007) with William Nordhaus, The Stern Review on the Economics of Climate Change (Nat’l Bureau of Econ. Research, Working Paper No. W12741, 2006).

7

Three of the largest European light bulb makers advocate a switch to energy-saving light bulbs to cut global greenhouse gas (GHG) emissions by phasing out incandescent light bulbs by 2016. Associated Press, Europe to Unplug from Common Light Bulbs, Msnbc.Com, Mar. 7, 2007, http://www.msnbc.msn.com/id/17364944. The American Bar Association (ABA) also teamed up with the U.S. Environmental Protection Agency (EPA) to issue the ABA-EPA Law Office Eco-Challenge “to become better environmental and energy stewards, and thereby

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consumption, particularly consumption of electricity.8 How can the nation satisfy its ever-increasing demand for electricity to power its homes, offices, manufacturing plants, and commercial venues? Where will the necessary emission reductions in air pollutants and greenhouse gases (GHGs) be obtained in the future, especially if more energy is consumed? How will U.S. businesses and citizens shift away from a near-total dependence on fossil-fuel energy sources in coming years?9 These difficult energy questions pose a significant challenge for the nation. Change in American energy patterns is already underway. While this shift presents numerous complex legal, economic, and environmental questions, the nation stands at the brink of a new era regarding the diversification of its energy supplies. The numerous disadvantages of costly and environmentally-damaging fossil fuels have led to the consideration of energy alternatives previously considered too costly or technically infeasible. In this new world of energy, the need to alter patterns of American energy use and supply has taken on an increased sense of urgency, as future penalties for carbon discharge may be implemented in the future.10 As a result, innovative energy sources are no longer viewed as experimental or exotic, but rather significant features of the developing energy future. As an example, renewable energy sources, including solar, wind, and hydropower, are now being considered as substantial contributors to future American energy supplies.11 This Article focuses on wind power as a form of renewable energy and addresses the central question of how the United States will change its electrical energy portfolio to respond to evolving energy realities. What are the prospects and obstacles for large-scale development of the potentially inexhaustible, non-polluting source

reduce their carbon footprint.” See Am. Bar Assoc., The Aba-Epa Law Office Climate Challenge (2007). 8

See Energy Info. Admin., U.S. Dep’t of Energy, Annual Energy Outlook 2007, at 2 tbl. 1 (2007), available at http://www.eia.doe.gov/oiaf/archive/aeo07/pdf/aeotab_1.pdf [hereinafter Annual Energy Outlook 2007] (estimating ever growing consumption of energy).

9

In 2004, fossil fuels (petroleum, coal, and natural gas) comprised 86.2% of total U.S. energy consumption, with nuclear electric power contributing 8.2% and renewable energy sources contributing 6.4%. Energy Info. Admin., U.S. Dep’t of Energy, U.S. Energy Consumption by Energy Source, http://www.eia.doe.gov/cneaf/solar.renewables/page/trends/table1.html (last visited Dec. 26, 2007).

10

New construction of coal-fired electrical generating plants has occurred in part to “beat” new carbon discharge restrictions. See Steven Mufson, Midwest Has “Coal Rush,” Seeing No Alternative-Energy Demand Causes Boom in Construction, Wash. Post, Mar. 10, 2007, at A1 (predicting that forty new coal fired utility plants would start up in the next five years, creating the largest wave in coal fired plant construction since the 1970s).

11

The U.S. renewable energy industry collectively tallies its future energy capacity at 550 to 700 gigawatts (GW); at such a production rate, renewable energy would supply twenty-five percent of the United State’s electrical energy requirements by 2025. Jim Callihan, Forecast: U.S. Renewable Energy to Hit 700 GW, Renewable Energy Access, Dec. 1, 2006, http:// www.renewableenergyaccess.com/rea/news/story?id=46717.

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of electricity derived from wind power?12 Historically, wind has been harnessed to serve basic human needs like grain-grinding and water-pumping,13 but has only recently been tapped to supply electrical energy in sizable amounts that supplement conventional technologies. The last quarter century witnessed the tremendous growth of wind power capacity, beginning with extremely small amounts 14 and culminating most recently with a dramatic annual increase of approximately twenty-five percent.15 This recent expansion has been buoyed by escalating fossil fuel costs, as well as an increasing concern about the environmental impacts of current energy use. The central inquiry of this Article is whether wind power can be an important contributor to the supply of domestic electricity. Although in the past wind power played a relatively small role in electricity generation, with the support of government policies and popular attitudes it can produce significant amounts of electrical power in the next ten to fifteen years. Such a shift is already underway in parts of Europe.16 If a similar change were to occur in the United States, important environmental and economic benefits would accrue to the nation and the world. Energy diversification towards wind power is underway in the United States, and the operative question is whether this pattern will accelerate to achieve the optimistic electricity generation goals set forth by government policymakers and wind power advocates. But is this transition towards wind power a uniformly positive step? All energy alternatives have associated benefits and drawbacks, and wind power is no exception. What are the disadvantages of wind power, and do they make this technology undesirable? The adverse effects of this form of renewable energy must be carefully assessed and understood. The most important judgment is one of comparative assessment: how do the effects of wind power compare with similar aspects of other forms of electricity production? This Article concludes that the United States must accelerate the diversification of 12

President Bush announced an Advanced Energy Initiative in conjunction with his 2006 State of the Union address. This initiative emphasized the potential significance of wind power as a possible electricity source. Nat’l Econ. Council, White House, Advanced Energy Initiative 13 (2006) (noting that “[a]reas with good wind resources have the potential to supply up to 20% of the electricity consumption of the United States.”).

13

See Peter Asmus, Reaping the Wind: How Mechanical Wizards, Visionaries, and Profiteers Helped Shape our Energy Future 24–32 (2001).

14

California was first in the United States to operate wind power plants. In 1978, it initiated the Wind Energy Program, with the goal of securing 500 MW of wind power electricity installed and operating by the mid-1980s. By 1985, California installed 1000 MW of wind capacity. Energy Info. Admin., U.S. Dep’t of Energy, Policies to Promote Non-Hydro Renewable Energy in The U.S. and Selected Countries 9–10 (2005).

15

Energy Info Admin., U.S. Dep’t of Energy, Electric Power Monthly January 2008, at 1 (2008) [hereinafter Electric Power Monthly], available at http://www.eia.doe.gov/ cneaf/electricity/epm/epm.pdf (showing annual increase from October 2006 to October 2007 of over twenty-five percent).

16

See European Wind Energy Ass’n, 2006 Annual Report 4–6 (2007) (showing wind growing wind energy capacity in Europe and plans for additional expansion).

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American electricity. The environmental and social advantages of wind-generated electricity clearly outweigh the disadvantages, and public policy should encourage this form of renewable energy. II. INTRODUCTION TO PATTERNS OF WORLD ENERGY PRODUCTION AND CONSUMPTION A. Global Energy: Large and Growing Demand Global primary energy consumption steadily increased over the last decade, and in 2005 totaled 10,537 million tons of oil equivalents (mtoe), an increase of 2.7 percent from 2004 levels.17 The strongest increase in consumption from 2004 was in the Asia Pacific region (5.8%), while North America recorded the weakest growth (0.3%).18 Energy consumption in the United States fell slightly, while China accounted for more than half of global energy consumption growth,19 consuming 1554 mtoe of energy, second only to the United States’ total of 2336 mtoe.20 The future appears to portend even more energy use. Current baseline projections of the International Energy Agency (IEA) indicate that worldwide demand will increase at the average rate of 1.6 percent annually, reaching a total of 16.3 billion tons of oil by 2030–a fifty-two percent increase from 2003.21 Under this scenario, oil, natural gas, and coal will account for eighty-three percent of this increase and

17

British Petroleum, Statistical Review of World Energy 40 (2006) available at www. bp.com (select the “Reports and Publications” hyperlink on the top of the page, choose “Downloads” from the pull-down menu under “Statistical Review of World Energy 2007,” and then select “Review 2006” from the pull-down menu under “Statistical Review 2006”) [hereinafter Bp: Primary Energy Consumption]. One million tonnes of oil equivalents have a heat equivalency of approximately forty million British thermal units (Btus). See British Petroleum, Conversion factors, http://www.bp.com/extendedsectiongenericarticle.do?categor yId=9017944&contentId=7033505 (last visited Jan. 23, 2008).

18

Bp: Primary Energy Consumption, supra note 16.

19

Id. In 2005, the top ten world consumers of energy were (expressed in mtoe and in percentages of total consumption): United States (2336 mtoe: 22.2%), China (1554 mtoe: 14.7%), Russian Federation (679 mtoe: 6.4%), Japan (524 mtoe: 5%), India (387 mtoe: 3.7%) Germany (324 mtoe: 3.1%), Canada (317 mtoe: 3%), France (262 mtoe: 2.5%), United Kingdom (227 mtoe: 2.2%), and South Korea (224.6 mtoe: 2.1%). Id.

20

Id. In the last forty years, China’s energy consumption rose twelve-fold, from 182.4 to 1554 mtoe. By comparison, the United States increased its energy use roughly two-fold, from 1324 to 2336 mtoe. This reflects the significant change in industrial, residential, and commercial energy use that occurred over during the last forty years. Id.

21

Int’l Energy Agency, World Energy Outlook 80 (2005), available at http://www. worldenergyoutlook.org/2005.asp [hereinafter 2005 World Energy Outlook]. These estimates spring from the IEA Reference Scenario, which takes into account governmental policies and actions already adopted, even if not currently in place. This “baseline vision” does not include possible, potential, or even likely future policy initiatives even though it is quite possible or desirable that new energy policies will be adopted in the next two decades. Id. at 59.

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ultimately comprise eighty-one percent of global energy demand by 2030.22 If this view is correct, serious increases in GHGs will inevitably result. This estimate also assumes that renewable energy (other than hydro-electric and biomass) will increase at the largest annual rate of any fuel source. This rapid increase, however, springs from a small initial share of global energy demand. While the dominance of fossil fuels as the world’s largest energy source appears certain, changes in governmental policy could alter the energy mix to some degree. Such a shift could reduce the severity of climate change if fossil fuel emissions are reduced by alternative energy technologies that do not produce GHG emissions. Increased energy efficiency could also reduce the rate of increase in total energy consumption. By advancing the goals of reduced GHG emissions23 and enhanced energy security, world governments might stimulate the demand for renewable energy technologies beyond their projected levels of growth. If progress is to be made in slowing down global warming, then governments, citizens, and power companies must aim to expand renewable energy. The Energy Information Administration (EIA) estimates the rate of annual increase in electricity generation at a 2.4 percent worldwide for the period 2004 to 2030; this projection results in an estimated increase in global electrical generation from 16,424 kilowatt hours (kWh) in 2004 to 30,634 kWh in 2030.24 How will this large increase in generating capacity be met? The fuels and generating technologies to be used in meeting this sizable capacity expansion will vary from country to country, depending upon available fuels, national security concerns, market competition, and governmental policies. Considering the ratios of fuels currently used to generate electricity,25 it seems likely that a large percentage of the needed new capacity will be fossil fuelpowered. Approximately seventy percent of U.S. electricity currently comes from fossil fuels,26 while in China an even greater share 22

Id. at 80. Under this appraisal, nuclear power will fall from supplying 6.4% to 4.7% of energy demand, while the share of renewable resources will increase from 13% to 14%. Id. at 80.

23

Maintaining the status quo of heavy reliance on fossil fuel energy sources will result in a substantial increase in the emission of energy-related CO2 over the period ending in 2030. Under the IEA Reference Scenario, emissions of CO2 will increase from twenty-four gigatonnes to thirty-seven gigatonnes, an increase of fifty-two percent over 2003 levels. Electrical power generation is expected to contribute approximately half of this increase, while transportation-related energy use will add another quarter. Id. at 92.

24

Energy Info. Admin., U.S. Dep’t of Energy, International Energy Outlook 65 (2007), available at http://www.eia.doe.gov/oiaf/ieo/pdf/electricity.pdf [hereinafter Int’l Energy Outlook].

25

See British Petroleum, Statistical Review of World Energy: Primary Energy Consumption (2006) available at http://www.bp.com/statisticalreview (follow “Historical data” hyperlink and then “Primary Energy: Consumption by Fuel” hyperlink) [hereinafter Bp: Consumption by Fuel].

26

U.S. Dep’t of Energy, Energy Info. Admin., Net Generation by Energy Source by Type of Producer, 1995 through 2006, http://www.eia.doe.gov/cneaf/electricity/epa/epat1p1.html (last visited Dec. 26, 2007).

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of electricity is fueled by coal, natural gas, and oil.27 The dramatic increase in worldwide burning of fossil fuels will only increase emissions of GHGs and other air pollutants. This raises the question of how other non-polluting generating technologies, such as renewable energy, can be advanced to offset such damaging growth. B. U.S. Energy Production and Consumption Patterns To understand the scope of energy policy issues in the United States, it is necessary to comprehend the trends of U.S. energy production and consumption. As a measure of total energy consumption, the United States used 79.99 quadrillion Btus from fossil fuels, nuclear electric power, and renewable energy in 1978.28 By 2005, this number grew to 99.89 quadrillion Btus–an increase of 24.9 percent over twenty-seven years.29 By comparison, the population growth over this same time period was 34.6 percent–suggesting that per capita energy use decreased, perhaps through the introduction of energy conservation methods.30 Between 1978 and 2005, renewable sources of energy have stayed remarkably static at slightly more than six percent of the energy mix, with wind power representing a small fragment of that total.31 In the future, U.S. energy consumption is expected to rise approximately one percent per year to reach a total of 131.16 quadrillion Btus by 2030, with domestic energy production growing one percent each year and any shortfall made up for by imported energy.32 All renewable sources of energy (including hydroelectric, biomass, wind, geothermal, and solar) will increase by an annual rate of approximately 2.2 percent and will constitute over ten percent of overall domestic energy production by 2030.33 This bullish prediction of American renewable energy growth

27

China already provides over seventy percent of its electrical generation with coal. Natural gas and oil electrical production will only add to the fossil fuel component of China’s electricity generation portfolio. See Int’l Energy Outlook, supra note 23, at 68.

28

Energy Info. Admin., U.S. Dep’t of Energy, Energy Overview: Selected Years, 1949–2006, http://www.eia.doe.gov/aer/pdf/pages/sec1_5.pdf (last visited Jan. 26, 2007).

29

Id.

30

See 2008 Statistical Abstract, supra note 4, at 7 tbl. 2.

31

Hydro-electric power and biomass sources represented the overwhelming majority of renewable energy, with geothermal, solar, and wind energy combined constituting only 9.3 percent in 2005. Energy Info. Admin., U.S. Dep’t of Energy, Annual Energy Review 2006, at 2 tbl. 1.2 (2007), available at http://tonto.eia.doe.gov/FTPROOT/multifuel/038406. pdf [hereinafter Eia: Energy Consumption by Primary Energy Source] (table entitled “Energy Production by Primary Energy Source, Selected Years, 1949–2006”).

32

Annual Energy Outlook 2007, supra note 8, at 2.

33

See Energy Info. Admin., U.S. Dep’t of Energy, Annual Energy Outlook 2008, at 1, tbl. A-1 (2008), available at http://www.eia.doe.gov/oiaf/aeo/pdf/appa.pdf.

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is reinforced by the IEA’s estimate of world-wide energy trends, which indicates that renewable energy will increase globally by 9.2 percent per year.34 In 2005, the United States led the world in total electricity production with 4062 billion kWh, followed by China with 2866 billion kWh.35 Between 2004 and 2005, however, the rate of American electrical generation growth (two percent) is dwarfed by that of China (12.6 percent–the highest in the world).36 The overwhelming source for this generation increase in the United States is fossil fuels, with at least seventy percent of the electricity currently produced through the combustion of coal, natural gas, and oil.37 The new power plant construction in the United States over the past few years emphasizes natural gas as a central fuel source, but coal plants are also on the drawing boards.38 With this picture of strong future electricity demand, U.S. policy makers and citizens must consider the implications of the technologies available to meet the increased demand over the next twenty-five years. III. FORCING CHANGE IN PATTERNS OF AMERICAN ENERGY SUPPLY AND USE A. Making Technological Choices for Electricity Generation Most American consumers and industrial and commercial users purchase their electricity from an electric utility company. Investor-owned utility corporations provide about seventy-five percent of electric utility generating capability, generation, sales, and revenue in the United States, and they are responsible to their shareholders, consumers, and government utility regulators.39 Since energy generation is an extremely capital-intensive activity, a shift to a new technology can only follow a careful cost-benefit analysis of modifying technical approaches to electricity generation. Investment in new generating capacity represents a major long-term 34

Int’ L Energy Agency, World Energy Outlook 2006, at 493 (2006).

35

U.S. Cent. Intelligence Agency, The World Fact Book (2007), available at https://www. cia.gov/library/publications/the-world-factbook/rankorder/2038rank.html. National electricity statistics have a small amount of variation. British Petroleum’s Statistical Review of World Energy listed generation in the United States at 4239 billion kWh in 2005. British Petroleum, Historical Data Workbook (2007) available at http://www.bp.com/ productlanding.do?categoryId=6848&contentId=7033471 (download the “Workbook” excel file in the middle of the page)[hereinafter Bp: Electricity Generation].

36

Bp: Electricity Generation, supra note 34.

37

In 2006, American electrical power was generated by coal (48.9%), petroleum (1.6%), nuclear (19.4%), and natural gas (20%). Renewable sources of electricity, including hydroelectric, comprised 10.1%. Electric Power Monthly, supra note 14, at 18.

38

U.S. Gov’t Accountability Office, GAO-05-414T, Meeting Energy Demand in the st Century: Many Challenges and Key Questions 12 (2005).

39

Energy Info. Admin., U.S. Dep’t of Energy, Electric Power Industry Overview, http://www. eia.doe.gov/cneaf/electricity/page/prim2/toc2.html (last visited February 8, 2008). Independent power producers produce and sell electricity on the wholesale market at non-regulated rates and must use renewable energy as a primary source for generation of electricity. Id.

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capital commitment that cannot be easily replaced if it fails to provide expected generating results. As a result, utilities often make incremental improvements to existing generating technologies and major changes to generating equipment only when significant benefits are projected. The supply of electricity also requires reliability, so new technology must have predictable characteristics that can be integrated into the overall stream of supply. The choice of appropriate technology for energy production is driven by multiple factors. First, the technology must be feasible and reliable in large scale, real-world settings. Theoretically appealing yet untried energy production concepts are not suitable for actual application. The utility company or the Independent Power Producer (IPP) must be assured of the performance characteristics and reliability before major investments can be made. Second, the cost of construction and operation of the technology is usually of primary importance and is the subject of careful modeling and calculation. A number of costly energy technologies are not yet widely adapted because of their high relative expenses per units of energy delivered.40 Consequently, the energy produced must be economically competitive with substitutes, and within the economic limits of most energy consumers. Third, environmental and other regulatory implications are also important. If a particular energy technology imposes excessive environmental harms, it will be subordinated to other less damaging technologies, all other things being equal. Fourth, raw material supply concerns are significant aspects of technology choices. If the use of a particular fuel or other necessary production component is difficult to obtain, has global political consequences, or wildly erratic prices, that energy technology will be considered less desirable for future installation. Furthermore, the total cost of procuring electricity–to workers, the environment, and communities–must be considered in light of the total fuel cycle. The siting acceptability of the new energy technology will be an important element of the calculus. Electricity producers approach new energy generation technologies with all of these considerations in mind. B. Increasing the Emphasis on Renewable Energy Technologies Renewable sources of energy are abundant and, when combined, have the potential to change the American energy mix in important ways. Although there is no authoritative definition of what constitutes a renewable energy source, the U.S. Department of Energy (DOE) includes hydroelectric power, geothermal, solar/ photovoltaic, wind, wood waste, and biomass.41 Over the last twenty-five years, renewable energy production has fluctuated between six and seven quadrillion Btus per year.42 As a percentage of total energy production, the renewable component 40

Energy Info. Admin., U.S. Dep’t of Energy, Energy Technologies on the Horizon, http://www. eia.doe.gov/oiaf/aeo/otheranalysis/aeo_2006analysispapers/eth.html (last visited Jan. 26, 2008).

41

EIA: Energy Consumption by Primary Energy Source, supra note 30.

42

Id. The highest absolute amount of renewable energy production occurred in 1997, when the total topped 7.18 quadrillion Btus. Id.

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has varied within a tight range, between eight and ten percent of total American energy production.43 In 2007, renewable energy sources contributed eleven percent of the total electric power generation in the United States.44 The rise in renewable electricity generation is attributable to significant increases in hydroelectric and wind power generation.45 While eleven percent of electricity generation is a relatively small component of overall supply, this figure does provide evidence that a shift in generation can occur in the world’s largest electrical market. This shift has important consequences for the environment because continued high fossil fuel prices would support the development and installation of larger amounts of electric power substitutes, such as renewable energy. Should this occur, renewable energy might emerge as a larger part of the energy mix. IV. THE POTENTIAL OF WIND POWER TO BOLSTER RENEWABLE ELECTRICITY SUPPLIES A. Renewable Energy Worldwide The world acquired about nineteen percent of its electricity from renewable sources in 2003, and nations across the globe are diversifying the electrical generation mix by emphasizing new energy technologies.46 Different countries lead the world with respect to different types of renewable sources. For example, Japan leads in photovoltaic power generation, Germany leads with generation from wind turbines, and the United States and Brazil lead in ethanol production.47 Geothermal sources account for approximately twenty-five percent of the total electricity generated in El Salvador, and twenty percent of all electricity in the Philippines, Kenya, and Iceland.48 Under a DOE program, one million solar energy systems will be installed on rooftops across the United States by 2010, and the installation of these systems could eliminate carbon dioxide emissions equal to those produced by 850,000

43

See id. (showing U.S. renewable and total energy consumed).

44

Electric Power Monthly, supra note 14, at 5.

45

Id.

46

See Energy Info. Admin., U.S. Dep’t of Energy, World Net Energy Generation by Type: 2004, http://www.eia.doe.gov/pub/international/iealf/table63.xls (last visited Jan. 26, 2008).

47

See id.; see also Energy Info. Admin., U.S. Dep’t of Energy, World Net Geothermal, Solar, Wind, & Wood & Waste Electric Power Generation, Most Recent Annual Estimates: 1980–2006, http://www.eia.doe.gov/emeu/international/RecentOtherElectricGenerationBtu. xls (last visited Jan. 26, 2008).

48

British Petroleum Global, Geothermal energy, http://www.bp.com/sectiongenericarticle.do?c ategoryId=9017926&contentId=7033480 (last visited Jan. 23, 2008).

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automobiles.49 European nations lead the way with wind power: Germany and Spain have the highest total installed wind power capacity in the world, and Denmark ranks fifth.50 Thus, in nations around the world, renewable energy is major contributor to the total energy mix. While each nation has its own reasons for setting its energy profile, it is clear that renewable forms of energy are not rare phenomena; they serve important purposes in diversifying the mixture and achieving a wide range of societal objectives. B. Wind Power as a Larger Component of the American Renewable Energy Mix Nature’s wind movement has been utilized for centuries throughout the world, with records indicating the early use of the wind as an energy source in China and Persia for grinding grain and pumping water.51 Over the last 2000 years, the power of the wind has assisted humans with land drainage, industrial activities, mining, textile production, and agriculture.52 American inventor Charles Brush created the first automatic operating wind-powered electricity turbine to generate electricity for his home in 1888.53 The technology thus has a long track record of utility for solving significant societal needs. Current research suggests that other innovative applications for wind power exist, including hydrogen production, the cleaning and moving of water in combination with hydroelectric power plants, the powering of municipal drinking water, waste water operations, desalinization, and irrigation.54 In the twentieth century, the widespread availability of inexpensive, utilitygenerated electricity failed to place pressure on wind power as an alternative electrical source. For much of the century, there was scant interest in wind-produced electricity, save for as a means of charging batteries in remote, inaccessible locations.55 Federal policies enacted in the early twentieth century that encouraged

49

Natural Res. Def. Council, Solar Power, http://www.nrdc.org/air/energy/renewables/solar.asp (last visited Dec. 26, 2007).

50

Press Release, Global Wind Energy Council, Global Wind Energy Markets Continue to Boom (Feb. 2, 2006), available at http://www.gwec.net/uploads/media/07-02_PR_Global_ Statistics_2006.pdf. While Europe leads the way, Asia is expanding its capacity as well, with China rapidly increasing its capacity by seventy percent in 2006 following the passage of the Chinese Renewable Energy Law. Id.

51

Asmus, supra note 12, at 24–32.

52

See Robert Gasch & Jochen Twele, Wind Power Plants: Fundamentals, Design, Construction and Operation 17, 20–21 (2002); Erich Hau, Wind Turbines: Fundamentals, Technologies, Application, Economics 1 (2d ed. 2006).

53

Danish Wind Indus. Ass’n, A Wind Energy Pioneer: Charles F. Brush, http://www.windpower.org/en/pictures/brush.htm (last visited Jan. 23, 2008).

54

U.S. Dep’t of Energy, Wind Power Today and Tomorrow 23 (2004).

55

Wind & Hydropower Techs. Program, U.S. Dep’t of Energy, History of Wind Energy, http:// www1.eere.energy.gov/windandhydro/wind_history.html (last visited Jan. 26, 2008).

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rural electrification by subsidizing rural electrical cooperatives and installation of electric transmission lines largely eradicated the more than eight million mechanical windmills that were installed throughout the west and mid-western parts of the United States. Under these policies, utility electrical lines were extended and ultimately connected to fossil fuel-powered generating plants.56 Even with this history of declining use, wind power is currently staging a comeback on multiple levels. The following subsections of this Article will explain how wind power is produced and describe some of the major wind power sources in the United States. 1. What is Wind Power and how is it Produced? Wind power is a converted form of solar energy.57 When solar radiation reaches the Earth, it heats different areas at uneven rates. The atmosphere warms evenly and warm air rises, causing a reduction in the atmospheric pressure at the Earth’s surface. Cooler air is drawn in to fill in the low pressure area, and wind results. Moving air contains kinetic energy, which can be directly or indirectly converted into mechanical force or electricity.58 The generation of electricity requires a structure to convert the wind’s force into a rotating motion.59 Most modern wind power devices employ turbines, using the horizontal axis configuration that resembles the propeller of a boat or an airplane. Most wind turbines generally have the following components: a rotor or blades (usually three per tower), which convert the wind’s energy into a rotating shaft energy; a nacelle or enclosure, usually containing a drive train, gearbox, and generator; a tower, which supports the rotor and the drive train; and electronic equipment, such as controls, ground support equipment, and grid interconnection equipment.60 The modern turbine has the capability to adjust its position to turn into the wind for optimal production.61 Wind turbine towers are usually composed of tubular steel, while the rotors or blades are made of fiberglass-reinforced polyester or wood epoxy. The most common turbine form uses three blades to rotate and generate electricity.62 For small farm or home applications, relatively small-sized wind turbines with diameters of eight

56

Id.

57

Energy Info. Admin., U.S. Dep’t of Energy, History of Wind, http://www.eia.doe.gov/kids/ energyfacts/sources/renewable/wind.html#history (last visited Jan. 26, 2008).

58

Id.

59

Am. Wind Energy Ass’n, Wind Web Tutorial, http://www.awea.org/faq/wwt_basics.html (last visited Jan. 26, 2008) [hereinafter AWEA Tutorial].

60

Id.

61

Id.

62

See James L. Tangler, The Evolution of Rotor and Blade Design 2–3 (2000).

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meters or less are placed on towers of forty meters or less in height.63 There are a surprisingly large range of these small-scale users of wind power.64 However, significantly larger machines are needed to generate utility-quantity electricity capable of interconnection with the nation’s electrical grid system. Wind turbine units are measured in terms of their physical size as well as their generating capacity. Wind turbines for land-based wind farms come in various sizes, ranging from a few kilowatts to over 100 megawatts of electricity in capacity.65 2. Where are the Major Wind Power Sources in the United States? According to the DOE, thirty-seven states boast wind resources that would support utility-scale wind power projects.66 One estimate suggests that wind power could supply approximately twenty percent of the United State’s total electricity need.67 The DOE estimates that the Midwest, including the Great Plains, has more than enough wind energy to fulfill the entire nation’s electricity needs.68 The DOE also estimates that good wind areas, which cover six percent of the nation’s land area, are widely distributed across the nation and have the potential to supply more than two-and-a-half times the current electricity consumption of the United States.69 63

Small companies attract venture capital to produce home-sized wind power systems. For example, Southwest Windpower sells a thirty-three foot turbine with six-foot blades that can produce electricity at wind speeds as low as nine miles per hour and provide up to eight percent of the average household’s electricity. See Jennifer Alsever, Wind that Powers Your Home, BUS. 2.0 MAG., Feb. 19, 2007, http://money.cnn.com/2007/02/16/magazines/ business2/ windpower_homes.biz2/index.htm.

64

For example, the school district in Spirit Lake, Iowa installed a 250 kW wind turbine in 1993. The turbine provided 350,000 kWh of electricity per year, which was more than necessary for the elementary school. The excess electricity was sold to the local utility system, netting the school $25,000 in its first five years of operation. Local Gov’ts for Sustainability, Case Study: Spirit Lake, Iowa, http://www.greenpowergovs.org/wind/Spirit%20Lake%20case%20study. html (last visited Dec. 26, 2007).

65

See enXco, Understanding Wind, http://forasenergy.com/understanding_wind_faqs.php (last visited Jan. 23, 2008).

66

U.S. Gov’t. Accountability Office, GAO-04-756, Renewable Energy: Wind Power’s Contribution to Electric Power Generation and Impact on Farms and Rural Communities 17 (2004) [hereinafter GAO Wind Report].

67

D.L. Elliott et al., Pacific Nw. Lab., An Assessment of the Availability of the Windy Land Area and Wind Energy Potential in the Contiguous United States iii (1991). After factoring in environmental and land use exclusions for wind class 3 or higher areas, this assessment also concluded that North Dakota, Texas, Kansas, South Dakota, and Montana each held the potential of over 1000 billion kWh of electricity. Id.

68

GAO Wind Report, supra note 65, at 17.

69

U.S. Dep’t of Energy, Wind Energy Resource Potential, http://www1.eere.energy.gov/ windandhydro/wind_potential.html (last visited Dec. 26, 2007). The land base of the continental United States is classified into seven wind potential categories. Estimates of the wind resources are expressed in wind power classes ranging from class 1 to class 7, with each class

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The generation of electricity from wind depends upon wind speed, since largescale commercial wind farms require consistent high-velocity winds. The land area of the United States is mapped and classified by the DOE.70 Small wind systems, also known as distributed wind systems, are more flexibly sited; it is estimated that as much as sixty percent of the United States is suitable for small turbine use.71 Tribal land encompasses ninety-six million acres, much of which possesses excellent wind resources, as do federally-owned lands under the control of the Bureau of Land Management (BLM).72 Large potential wind power regions also exist in off-shore locations. The National Renewable Energy Laboratory estimates that off-shore wind resources between five and fifty nautical miles away from the Atlantic and Pacific coasts could provide 1000 gigawatts (GW) of wind energy for the United States, an amount equal to the current installed U.S. electrical capacity.73 Higher offshore construction costs may be offset by higher and more consistent wind speeds, which can produce more electricity at significantly lower costs.74 Only a small amount of this potential is tapped, although there are at least 600 MW of new offshore wind projects, some of which are extremely controversial, currently in the permitting stage in the United States.75 representing a range of mean wind power density or equivalent mean speed at specified heights above the ground. Areas designated class 4 or greater are suitable with advanced wind turbine technology under development today; class 3 areas may be suitable for future technology; class 2 areas are marginal; and class 1 areas are unsuitable for wind energy development. Areas potentially suitable for wind energy applications (wind power class 3 and above) include “much of the Great Plains from northwestern Texas and eastern New Mexico northward to Montana, North Dakota, and western Minnesota; the Atlantic coast from North Carolina to Maine; the Pacific coast from Point Conception, California to Washington; the Texas Gulf coast; the Great Lakes; portions of Alaska, Hawaii, Puerto Rico, the Virgin Islands, and the Pacific Islands; exposed ridge crests and mountain summits throughout the Appalachians and the western United States; and specific wind corridors throughout the mountainous western states.” Id. 70

Id.

71

Paul Gipe, Wind Energy Basics: A Guide to Small and Micro Wind Systems (1999).

72

U.S. Dep’t of Interior, Bureau of Land Mgmt., FES 05-11, Final Programmatic Environmental Impact Statement on Wind Energy Development on Blmadministered Lands in the Western United States 2–5 (2005) [hereinafter BLM Wind Development Impact Statement]. The BLM estimates that approximately 160,000 acres of land under its control in eleven western states would be “economically developable” as wind power sites between 2005 and 2025. This land was located mainly in California, Nevada, and Utah. Id.

73

Walt Musial et al., Energy from Offshore Wind 1-2 (Nat’l Renewable Energy Laboratory Offshore Tech. Conference, Conference Paper NREL/CP-500-39450, 2006), available at http://www.nrel.gov/wind/pdfs/39450.pdf.

74

Am. Wind Energy Ass’n, the Economics of Wind Energy 1 (2005) [hereinafter Awea Economics]. The American Wind Energy Association estimates that as wind speed increases per kilowatt hour, costs fall. Id.

75

Musial et al., supra note 72, at 3. See also Stephanie Ebbert, Cape Wind moves on to federal review, Boston Globe, Mar. 31, 2007, at A1.

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3. What is the Rate of Growth of Installed Wind Power Generating Capacity? Wind power is increasingly considered part of the mix of renewable energy sources. The first 1000 MW of wind power generating capacity was in place in the United States by 1985, yet it took until 1999 for the total capacity to reach 2000 MW.76 Growth has sped up considerably, with 5000 MW installed by 2003, 11,600 MW in place by 2006, and 16,800 MW installed by the end of 2007.77 This acceleration in wind power investment was buoyed by increasing fossil fuel prices, declining wind generation costs, and crucial federal tax subsidies.78 As a result, the annual wind power growth rate over the last several years is twenty-two percent.79 A predictable continuation of supportive governmental subsidies together with research and development funding will be necessary if the federal goal of 100,000 MW of wind power is to be achieved by 2020. Large and small industrial firms and well-funded venture capital investors are attracted to the prospects of wind-generated electricity and are now actively involved in the promotion and expansion of the new industry.80 The amount of invested capital is impressive. In 2005, seventeen billion dollars were invested in clean energy projects in the United States alone, and forty-nine billion dollars were invested worldwide.81 The substantial flow of capital into the American wind power industry is undoubtedly influenced by the rise in fossil fuel prices and the availability of various federal tax incentives. It also reflects a substantial commitment to a rapidly growing industry with financial viability, at least under the current subsidy structure. 4. Where is Wind Power Currently Being Used in the United States? In 2006, the total amount of installed utility-scale wind power electricity exceeded 11,600 MW,82 and Texas surpassed California as the state with the greatest installed

76

Am. Wind Energy Ass’n, Wind Power U.S. Installed Capacity: 1981–2007, http://www. awea.org/faq/instcap.html (last visited Jan. 26, 2008).

77

Press Release, Am. Wind Energy Ass’n, Installed Wind Capacity Surged 45% in 2007 ( Jan. 17, 2008), available at http://www.awea.org/newsroom/releases/AWEA_Market_Release_Q4_ 011708.html [hereinafter AWEA Press Release].

78

For information about the federal wind production tax credit, see id.

79

Am. Wind Energy Ass’n, Wind Energy Fast Facts, http://www.awea.org/newsroom/pdf/ Fast_Facts.pdf (last visited Jan. 27, 2008).

80

See, e.g., Kevin Kelleher, Wind Power Generating a Higher Profile, The Street, July 5, 2006, http://www.thestreet.com/markets/energy/10294781.html.

81

Emily Thornton & Adam Aston, Wall Street’s New Love Affair, Business Week, Aug. 14, 2006, at 48, available at http://www.businessweek.com/magazine/content/06_33/b3997073. htm.

82

Awea Press Release, supra note 76.

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wind power capacity in the nation.83 The top ten states in terms of year end installed wind power capacity in 2006 were Texas (2739 MW), California (2376 MW), Iowa (931 MW), Minnesota (895 MW), Washington (818 MW), Oklahoma (535 MW), New Mexico (496 MW), Oregon (438 MW), New York (370 MW), and Kansas (364 MW).84 The optimistic goal of the federal government’s Wind Powering America initiative is to have at least thirty states with at least 100 MW of installed wind power capacity by 2010.85 In 2006, there were only sixteen states that met that goal, but six additional states currently have between twenty-nine and seventy-five MW of generating capacity and could meet the goal in the next few years.86 While the achievement of the 10,000 MW nationwide generating capacity represented a huge milestone for wind power, it must be kept in mind that U.S. wind power still accounts for less than one percent of existing domestic electricity generation.87 The proclaimed national goal of reaching the six percent level by 2020 will consequently require substantial expansion of large American wind farms. C. The Benefits and Drawbacks of Wind Power as an Energy Choice 1. Benefits of Wind Power Electricity Generation Wind energy development spans a lengthy time period and encompasses a number of phases. The process runs from site monitoring to facility construction to plant operation and electricity generation to decommissioning of the development. As a process, wind power involves different advantages and disadvantages at varying stages of the development timeline. Comparisons of wind power technology with conventional fossil fuel or other energy methods should therefore occur in both a phase-by-phase and comprehensive fashion. a. Eliminating Fuel Costs in Electricity Generation Proponents of wind power technology emphasize a range of reasons to support the rapid expansion of wind-generated electricity and motive power. First and 83

W. N.C. Renewable Energy Initiative, Fact Sheet: Utility-Scale Wind Energy, http://www.wind. appstate.edu/reports/WindEnergyFactSheetWNCREIFeb07.pdf (last visited Jan. 26, 2008).

84

U.S. Dep’t of Energy, Wind Powering America: Installed U.S. Wind Capacity, http:// www.eere.energy.gov/windandhydro/windpoweringamerica/wind_installed_capacity.asp (last visited Dec. 27, 2007) [hereinafter Installed Wind Capacity].

85

U.S. Dep’t of Energy, About Wind Powering America, http://www.eere.energy.gov/ \windandhydro/windpoweringamerica/wpa_about.asp (last visited Dec. 27, 2007). Wind Powering America is a commitment by the U.S. Department of Energy to dramatically increase the use of wind energy in the United States. This initiative is intended to establish new sources of income for American farmers, Native Americans, and other rural landowners, and to meet the growing demand for clean sources of electricity. Id.

86

Installed Wind Capacity, supra note 83.

87

Energy Info. Admin., U.S. Dep’t of Energy, Total Electric Power Industry Summary Statistics, http://www.eia.doe.gov/cneaf/electricity/epm/tablees1b.html (last visited Dec. 27, 2006).

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foremost, wind power is a renewable and indigenous form of non-fossil fuel electricity. Once a wind turbine is installed, there is no fuel cost for the generation of power and consequently no fuel cost volatility. Second, the wind follows predictable patterns, yet its kinetic energy is available without cost to the turbine owner solely because of the siting location of the turbine in a windy area. Third, wind power is an inexhaustible supply without raw material or fuel costs, thereby making the inflationary characteristics of coal, natural gas, and oil irrelevant to the economic calculus of the project. As a result, the geopolitical complications of fossil fuels supplied from non-domestic sources cease to be a concern for the wind power electricity generator. Finally, since the fuel is naturally-occurring wind, there are no adverse impacts on workers, the environment, or local communities from fuel extraction. By comparison, coal–the nation’s largest electricity supply fuel–imposes serious societal costs through air pollution, water pollution, water resource use, solid waste generation, and land contamination.88 b. Zero Air Pollution & Global Warming Emissions Arguably the strongest advantage of wind power is the fact that it does not create significant air pollution or GHG emissions at any point in its life cycle. Fossil fuel combustion is the largest source of carbon dioxide emissions in the United States, and electricity generation comprises nearly half of that large source of emissions.89 Conventional coal, natural gas, and oil-fired power plants annually emit thousands of tons of emissions of sulfur dioxide, nitrogen oxides, carbon monoxide, particulate matter, hydrocarbons, mercury, and other pollutants, while wind power produces zero emissions.90 With increased domestic and international emphasis on the elimination of GHGs,91 the substitution of fossil fuel-generated electricity with non-combustion-produced electricity will help alleviate climate change in the future. As U.S. policymakers embrace more rigorous GHG reduction goals, wind power will be emphasized as a viable alternative energy source. c. No Water Use for Cooling Wind power generation requires minimal amounts of water during operation, in stark contrast to the water use of conventional thermoelectric fossil fuel plants.

88

See U.S. Envtl. Prot. Agency, Clean Energy: Electricity from Coal, http://www.epa.gov/ cleanenergy/coal.htm (last visited Dec. 27, 2007).

89

U.S. Envtl. Prot. Agency, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990–2005 ES-7 – ES-8 (2007). Coal-fired power plants are not yet required to perform carbon sequestration through “capture and store” techniques, although a recent MIT report indicates that technology for this exists, though not on a utility scale. See Mass. Inst. of Tech., The Future of Coal: An Interdisciplinary MIT Study 43–45 (2007).

90

BLM Wind Development Impact Statement, supra note 71, at 6–23.

91

See, e.g., U.N. Intergovernmental Panel on Climate Change, Summary for Policymakers, in Climate Change 2007: The Physical Science Basis 2–3 (Susan Solomon et al. eds., 2007).

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As a result, thermoelectric power plants use enormous quantities of water nearly equal to irrigation, which is mostly withdrawn from U.S. fresh water supplies. Both fuel-cycle and consumptive (evaporative) water use for coal and nuclear-generated electricity range in the billions of gallons per year.92 This intensive water use is often the most serious limiting factor in the permitting of these plants, especially in arid areas where water is scarce. As competition for fresh water becomes more intense, non-water using energy technologies like wind power boast an additional advantage. Wind power does not use water because it employs kinetic, not thermal, energy to spin the turbines in its generators. d. Elimination of Solid and Hazardous Wastes Resulting from Fuel Preparation and Pollution Control After the construction of a wind power facility, there is no solid or hazardous waste requiring disposal as a byproduct of generation. By contrast, the DOE estimates that the preparation of coal prior to power plant combustion generates solid waste at ten percent of the coal mined, resulting in millions of tons of coal wastes in need of disposal as part of the process of electricity generation.93 After combustion, large amounts of additional solid waste result from coal burning in the form of boiler slag, fly ash, and scrubber sludge produced by sulfur dioxide and particulate removal equipment.94 The lack of solid waste disposal problems is yet another significant environmental advantage of wind power, since the left-over residue of coal combustion must be disposed of in landfills. e. Community and Regional Economic Benefit of Wind Energy Facility The development of wind farms often occurs in rural communities experiencing depressed or reduced economic conditions, and wind power projects often have a positive economic impact on the employment in a construction area. The assembly of pre-fabricated wind turbines and towers employs construction workers at an estimated average rate of 4.8 job years (direct and indirect employment) per one MW of wind power construction.95 Using this ratio, a 50 MW wind farm would produce 240 job years of employment for workers who construct the facility. One estimate of employment impacts suggests that by 2015, wind energy projects in California alone would produce 2690 construction jobs and 121 million dollars in

92

Dep’t of Geography and Envtl. Res., S. ill. Univ. Carbondale, Water use Benchmarks for Thermoelectric Power Generation I–1 (2006), available at http://info.geography. siu.edu/geography_info/research/documents/ThermoReport.pdf (U.S. thermoelectric power plants used 195.5 billion gallons per year of water—equivalent to the amount used nationwide for agricultural irrigation).

93

Union of Concerned Scientists, Environmental Impacts of Coal Power: Waste Generated, http://www.ucsusa.org/clean_energy/coalvswind/c02d.html (last visited Jan. 26, 2008).

94

Id.

95

Awea Tutorial, supra note 58.

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income.96 It is also estimated that between nine and ten full-time service personnel would be need to maintain a 100 MW wind farm.97 This continual employment benefit would occur in rural areas and be distributed over a large area. In addition to these employment benefits, state governments would collect sales and income taxes from new construction, and local governments would benefit from increases in real estate tax bases due to the presence of the new wind farm equipment.98 f. Supplementary Income to Rural Landowners Wind farms use leased land, or land upon which royalties or land fees must be paid to the landowner. In these rural areas, there are often few leasing alternatives and none that pay the high level of lease or royalty payments of between 3000 and 4000 dollars per turbine per year.99 Depending on the amount of land leased and the number of turbines, the lease payments would constitute much-needed income for rural land owners with few economic alternatives. New wind power lease payments supplement rural incomes, potentially allowing farmers and ranchers to remain on the land to continue traditional agricultural or ranching activities. This would maintain the rural life and culture that is rapidly disappearing in many areas. In addition, wind energy development would generally be compatible with other existing land uses, including livestock grazing, recreation, wildlife habitat, and oil, gas, and geothermal production. 2. Potential Drawbacks of Wind Power Generation While there are many advantages to wind power, some disadvantages exist. Every energy-producing technology involves pros and cons that must be evaluated by government policymakers, private investors, and the general public. Some disadvantages are inherent in the nature of the wind energy technology itself, while others relate to the use of the technology at particular locations. As the nation considers its energy future, it will be necessary not only to identify the positive and negative aspects of this new technology, but also to compare these features with those of existing methods of generating power. Such a comparative analysis will be a crucial step in fashioning public policy. In the end, judgments must be made by balancing the environmental, economic, and social aspects of the U.S. energy mix.

96

BLM Wind Development Impact Statement, supra note 71, at 5–109.

97

For every 100 MW of installed wind power capacity, it is estimated that 310 full time manufacturing jobs, 67 contracting and installation jobs, and 95 annual operation and maintenance jobs are created. N.C. Coastal Wind Working Group, Benefiting North Carolina Communities with Offshore Wind Farms 3 (2007).

98

See Martin J. Pasqualetti, Wind Power: Obstacles and Opportunities, 46 Environment 23, 29 (2004) (citing evidence that a single 250 MW project in Iowa provides $2 million per year in property taxes and $640,000 in farmer lease income).

99

Am. Wind Energy Ass’n, Wind Energy for your Farm or Rural Land 1 (2007).

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a. Consistency of the Wind Resource One potential disadvantage of wind power relates to the nature of the wind resource itself: the blowing of wind is intermittent and occurs according to atmospheric conditions, not human energy needs. Wind does not always blow when energy is required and, in general, cannot be stored for later use. Wind speed and availability– and consequently the amount of electricity generated–often varies day-to-day. It is feared that utilities relying on wind power will need to develop or purchase costly reserve capacity to fill in when wind power is not available. Advocates of wind power believe that wind resources, while not consistent, are predictable and can be connected into the electrical grid with small cost penalties.100 The high level of private investment in wind power suggests that wind-generated electricity can provide a valuable flow of power that can be integrated into the utility transmission system. Further research will undoubtedly address this important question.101 b. The Availability of Optimal Wind Power Sites Good wind sites with the highest wind power classifications are often located in remote places, far from the high-density metropolitan areas with the greatest energy demands. An examination of the U.S. Wind Energy Resource Atlas reveals that many of the highest potential class 6 and 7 wind areas are located in the upper Midwest, hundreds of miles from the closest population source.102 Since many remote locations where wind energy resources exist are often not located proximate to high capacity utility transmission lines, power connections must be built to link the wind electricity generators to the utility power grid. The high costs of building this necessary connective infrastructure can create serious obstacles for wind power projects. In addition, frequent popular opposition to the construction of high voltage lines can makes it difficult, and in some cases impossible, to obtain the necessary governmental support for new construction.103 Even if remotely-located wind power sources are able to connect, they may be charged high access fees to use existing transmission lines. Furthermore, these lines may have limited transmission 100

Edgar A. DeMeo et al., Wind Plant Integration, IEEE Power & Energy Mag., Nov.–Dec. 2005, at 45 (examining the impact of wind variability on system operating costs are not negligible but are relatively modest, normally costing less than ten percent of the wholesale energy value).

101

GAO Wind Report, supra note 65, at 21–22. See also Robert Zavadil et al., Making Connections, IEEE Power & Energy Mag., Nov.–Dec. 2005, at 32–36 (describing the technical progress and remaining issues related to wind power integration).

102

Renewable Res. Data Ctr., Nat’l Renewable Energy Lab., Wind Energy Resource Atlas of the United States, http://rredc.nrel.gov/wind/pubs/atlas/maps/chap2/2-01m.html (last visited Jan. 26, 2008).

103

See, e.g., Joel Garreau, High Voltage, High Tension- In Virginia’s Piedmont, Electric Company and Critics Both Draw a Line, Wash. Post, Mar. 5, 2007, at C1 (describing staunch citizen opposition to utility’s plan to locate a power distribution line throughout the Piedmont region of Virginia).

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capacity allocated on a first-in-time principle, with a discriminatory effect on new power generators like wind farms.104 With the improvement in wind power operating efficiencies, however, less desirable sites can economically produce electricity, especially if transmission lines and capacity are well situated. There are also large, high-potential wind sites in offshore locations in coastal waters and in the Great Lakes that represent potentially huge amounts of electrical generation.105 In Europe, siting constraints for land-based wind farms have resulted in the construction of eighteen projects located in the North Sea providing 804 MW with over 11 GW of new offshore projects planned by 2010.106 Offshore wind is identified as an attractive alternative for a number of reasons, including: first, the most forceful and consistent winds exist offshore; second, offshore sites exist within reasonable distances from the major urban load centers, especially in the mid-Atlantic and New England; and third, underwater transmission line siting and distant turbine location can minimize aesthetic and land use objections.107 While offshore wind project construction costs can range between forty and seventy-five percent higher than land-based projects, they also boast compensating productivity advantages because the wind capacity factor is considerably greater than that of most on-shore facilities.108 Offshore activities within three miles of the coast come under state regulatory authority, while those beyond the three mile limit are the responsibility of the federal government.109 The federal Energy Policy Act of 2005 allocated jurisdiction over the development of alternate energy-related uses (including wind power) on the Outer Continental Shelf (OCS), including the power to grant permission to use the OCS for such purposes, to the Minerals Management Service (MMS) of the Department of the Interior.110 Once in place, the final program rules will likely open up large tracts of offshore areas to wind farm development. 104

Am. Wind Ass’n, Fair Transmission Access for Wind: A Brief Discussion of Priority Issues 10 (2007).

105

Minerals Mgmt. Serv., U.S. Dep’t of Interior, Technology White Paper on Wind Energy Potential on the U.S. Outer Continental Shelf 2–3 (2006).

106

Musial et al., supra note 72, at 3. See also Fiona Harvey, London to Lead World in Output from Wind Farms Located at Sea, Fin. Times, Dec. 19, 2006, at 3 (describing the London Array and the Thanet projects, which together provide 1.3 GW by 2010, sufficient to power one million English homes).

107

Offshore Wind Collaborative, A Framework for Offshore Wind Energy Development in the United States 2 (2005), available at http://www.masstech.org/offshore/final_09_20.pdf.

108

Awea Economics, supra note 73, at 1–2.

109

Submerged Lands Act of 1953, 43 U.S.C. § 1301–1315 (2000) (stating that the federal government has control over oceans three miles from the coastline).

110

Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594 (codified as amended at 43 U.S.C.S. § 1337 (2008)). In 2006, the MMS began developing a program and regulations to implement this provision of the Act. Alternate Energy-Related Uses on the Outer Continental Shelf, 70 Fed. Reg. 77,345 (Dec. 30, 2005).

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c. Wind Power Technology and the Cost of Electricity If wind power is to be widely adopted, then the cost of production must be reduced to a level near that of fossil fuel plants. Fortunately, the economics of windgenerated electricity have changed considerably over the last quarter century, with costs dramatically lower than they once were. Improvements in turbine design and electronic controls have led to significant production efficiencies.111 Technological improvements, however, must continue in order to assure competitive wind power pricing. Production costs must also be reduced at secondary or sub-optimal wind power sites. The cost of wind energy varies greatly depending upon the wind speed at the site.112 Most existing wind projects are located at the best sites (class 6 and 7) with the lowest generation costs. Recent DOE estimates put wind power electricity costs at these locations between three and six cents per kWh, making wind power cost-competitive when compared to fossil fuel plants.113 However, prime sites will be exploited first, and wind power plants will eventually need to be constructed at secondary, less-desirable sites with lower wind speeds and higher generating costs. Either government subsidy programs or higher consumer prices would be necessary to assure that class 4 and 5 site electricity remains competitive. Federallysupported research is currently seeking ways to advance the technology in order to bring down the costs at sites with lower wind speeds.114 Cost considerations must be kept in mind in order to spread the advance of wind power, especially at remote locations with high transmission costs. d. Competition for Land for Wind Energy Projects Wind power development must compete with other land uses that might be more highly prized or valued. While farming and ranching activities are generally compatible with the generation of wind energy, other types of uses might be considered incompatible with the installation of large wind turbines. Several preservation policies expressed in BLM documents exclude wind development construction from special public lands and recreation areas.115 This kind of land 111

Awea Economics, supra note 73, at 1–2.

112

Id.

113

See Union of Concerned Scientists, Renewable Energy FAQs, http://www.ucsusa.org/clean_ energy/clean_energy_policies/the-renewable-electricity-standard.html (last visited Jan. 17, 2008).

114

See, e.g., Wind & Hydropower Techs. Program, U.S. Dep’t of Energy. http://www1.eere.energy. gov/windandhydro/wind_low_speed.html (last visited Jan. 26, 2008).

115

BLM Wind Development Impact Statement, supra note 71, at 2–3. The BLM Programmatic Environmental Impact Statement analyzes potential wind power development after screening out BLM-administered lands that were determined off limits for wind energy development due to statutory or administrative controls. These include wilderness areas, wilderness study areas, national monuments and national conservation areas. Id.

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competition pits renewable wind power energy goals against land preservation. As the controversy surrounding the Cape Wind offshore wind project near Cape Cod demonstrates, land use compatibility questions can be central to the objections raised against the siting of a wind power facility, even if the objectors approve of wind power generally.116 Land use considerations are often the heart of objections to large wind power projects and require that project siting choices be made in a decision-making process designed to identify and balance multiple values. Even in England, where strong government and popular support for renewable wind power exists, disagreements occasionally surface.117 e. Potential Adverse Land Use Impacts of Wind Power Projects The construction and operation of wind farms or utility-sized projects present a number of potential conflicts with neighboring residents and land uses. As with any large-scale energy generation project, background land use patterns will be changed by the new energy development. The construction phase of a wind power facility carries with it the potential of interference with a number of different interests, including wildlife habitat, water quality, cultural resources, geologic features, air quality, vehicular traffic, and occupational safety. Once a wind generation project is operational, prominent concerns include the aesthetic impact of a large number of wind turbines,118 interference with communications,119 shadow flicker,120 noise produced by rotating blades,121 impact on aircraft communications and 116

See Beth Daley, Cape Wind Proposal Clears Big Obstacle Agency Calls Impact on Environment Minor, Boston Globe, Jan. 15, 2008, at A1; Peter J. Howe, Changes May Buoy Cape Wind Project– Patrick Seeks to Alter State Law, Boston Globe, Dec. 11, 2007, at B3.

117

See Marc Horne, Royal Botanist Clashes with Prince Charles over Wind Farms, Sunday Times (London), Jan. 21, 2007, at 1–7.

118

The visual impact of wind power facilities is extremely difficult to assess, partly because of subjects’ responses to the change in scenery. Some advocates of wind power describe a common reaction to wind projects to be “a mixture of inquisitiveness, admiration and incomprehension.” See HAU, supra note 51, at 558–59; see also D.W. Bisbee, NEPA Review of Offshore Wind Farms: Ensuring Emission Reduction Benefits Outweigh Visual Impacts, 31 Environment 349 (2003).

119

Much of modern communication occurs through electromagnetic signals. Many state wind power siting rules require consideration of television interference, microwave beam paths, AM/FM stations, and land mobile communication sites. See, e.g., Wisc. Electric Power Co., PSC Docket No. 6630-CE-294, Application for Certificate of Public Convenience and Necessity: Blue Sky Green Field Wind Project (2006), available at http://www.we-energies. com/environmental/certpubconvnec_app.pdf.

120

Shadow flicker refers to shadows cast by the rotating blades of wind turbines. The amount of shadow flicker is dependent on the angle of the sun in relation to the turbine; the lower the sun is in the sky, the more shadows are cast by the blades. For most parts of the United States, the sun is never low enough in the sky to pose a problem with turbine shadow flicker. BLM Wind Development Impact Statement, supra note 71, at 3–20.

121

Low frequency sound can be generated by wind turbines as the result of changes in the aerodynamic lift forces on the rotor blades. These sound emissions may be reduced by careful

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navigation systems,122 ice throws from the blades of turbines,123 and effects on resident or migrating bird and bat populations.124 Some also criticize wind power for potential adverse effects on adjacent property values, although recent analysis has not borne this out.125 As research and experience with wind power technology becomes increasingly available, it is possible to separate verifiable claims of harm from those without basis in fact. Additionally, research is likely to indicate useful methods of planning turbine locations so as to mitigate some of the potentially harmful effects of wind power siting.

turbine design and the establishment of sufficient safety zones or setbacks from other land uses. See generally HAU, supra note 51, at 537–48. Noise during construction would be similar to construction noise from other projects. The BLM concluded in its Programmatic Environmental Impact Statement that noise generated during the wind facility operational phase “would approach typical background levels for rural areas at distances of 2000 feet (600 meters) or less and, therefore, would not be expected to result in cumulative impacts to local residents.” BLM Wind Development Impact Statement, supra note 71, at 6–17. 122

The Federal Aviation Administration (FAA) Obstruction Evaluation Service (OES) has principal authority over the evaluation of potential threats to aircraft navigation. Both the Department of Defense and the FAA present radar obstruction analysis to the OES for an obstruction determination. The OES has not yet issued formal rules or guidance, but it has mapped red zones (up to twenty miles), yellow zones (twenty to sixty miles) and green zones (beyond sixty miles) around long range radar facilities. Construction of obstructions such as wind farms is presumptively prohibited within the red zone, potentially acceptable within the yellow zone, and permissible within the green zone. In 2006, 13,398 wind turbine sitings were studied by the FAA and no hazard determinations were issued. E-mail from Bruce Beard, OES Nat’l Operations Manager, to Ronald Rosenberg, Professor of Law, William and Mary Law School (Mar. 7, 2007, 17:20 EST) (on file with author).

123

Neil Rhines, Debate Rages Over Wind Energy Farms, Herald Times Rep., Mar. 6, 2005, at 1A; Susan Squires, Worries in the Wind for Calumet, Appleton Post-Crescent, Aug. 4, 2006, at 1A.

124

One frequently cited avian fatality study indicates that the most common response to wind turbines is for birds to recognize them as obstacles and fly around them. This study estimated 33,000 bird fatalities per year from the then-estimated 15,000 operating wind turbines in operation in 2001. W.P. Erickson et al., Nat’l Wind Coordinating Comm., Avian Collisions With Wind Turbines: A Summary of Existing Studies and Comparisons to Other Sources of Avian Collision Mortality in the United States 1–2 (2001). Turbine characteristics, tower design, and turbine placement affect avian deaths. See K.S. Smallwood & C.G. Thelander, Developing Methods to Reduce Bird Mortality in the Altamont Pass Wind Resource Area 6 (2004).

125

In 2003, the Renewable Energy Policy Project, a federally supported non-profit organization, undertook an economic analysis of the impact of wind power development from 1998 to 2002 on surrounding property values in the viewshed of ten wind projects in seven different states. It focused on the impact of wind power projects ten MW or larger on property sales within a five mile radius, comparing the sales data with information from sales occurring in comparable communities during the same time. The study concluded that “property values within the view shed of wind developments suffer or perform poorer than in a comparable region. For the great majority of projects . . . the property values in the view shed actually go up faster than the values in the comparable region.” George Sterzinger et al., Renewable Energy Policy Project, The Effect of Wind Development on Local Property Values 1–4 (2003).

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D. Wind Power Policy in the U.S. 1. Federal Policy Since electricity production is largely privately financed and operated, there is no national control over investment in the industry. Private market decisions, however, are undoubtedly influenced by governmental policies that make investing in a particular energy production technology financially advantageous. At the national level, there are a number of executive programs encouraging renewable wind energy supply,126 but there is no comprehensive long term strategy. As a result, federal policy on wind power must be pieced together from a series of largely disconnected federal actions. Overall, the federal government encourages private investment in wind power production, but does so without utilizing the complete range of support possible. By contrast, true initiative exists at the state level, where legislatures and governors take the lead in advancing wind power by adopting accommodating policies and procedures. a. Financial Subsidies While federal energy production subsidies tend to favor conventional energy sources, Congress does provide direct federal financial support for wind power production. The most important federal policy for wind power is the federal production tax credit (PTC), which provides a per kWh tax credit for electricity from wind plants for a period of ten years from initial plant operation.127 It is estimated that this incentive could provide a moderately-sized thirty MW wind farm with up to 1.6 million dollars in annual federal subsidies.128 This credit is adopted for limited periods and periodically renewed; each short extension of the PTC has negative effects on long-term project planning and manufacturing costs, leading to uncertainty among wind power developers, financiers, and states regarding the extent of long term federal support for wind-generated electricity.129 The subsidy provision is currently set to expire December 31, 2008, but wind power advocates are pushing to extend the credit for an additional five years.130 In addition to the PTC, wind power projects are eligible for other tax preferences, including a five-year accelerated depreciation schedule allowable for renewable energy system investments, which further offsets the high initial capital costs of

126

Most prominent is the DOE’s Wind Powering America program. See L.T. Flowers & P.J. Dougherty, Nat’l Renewable Energy Laboratory, Wind Powering America: Goals, Approach, Perspectives and Prospects 1 (2002).

127

26 U.S.C.S. § 45 (2008).

128

GAO Wind Report, supra note 65, at 23.

129

Id. at 32.

130

Mark Clayton, Wind, Solar Tax Credits to Expire, Christian Sci. Monitor, Jan. 22, 2008, at 3.

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wind power projects.131 Other forms of federal financial assistance for renewable energy and wind power are also authorized, including Clean Renewable Energy Bonds, to help finance municipal and cooperative utilities.132 b. Research and Development Funding The federal government also supports wind power development through the funding of research activities into technological improvements. This financial support is part of the President’s Advanced Energy Initiative, which targets small wind applications and improvements in the efficiency of wind turbines in low-speed wind environments. This initiative would supply forty-four million dollars during the 2007 fiscal year.133 Other federal funds are available through the 2002 Farm Bill, which provides grants and loan guarantees to farmers and rural business owners for the purchase of renewable energy systems, including wind power.134 c. Wind Power on Federal Lands The federal government is working to make high wind quality federal lands available for the development of wind energy projects under right-of-way authorizations. Historically, the BLM is the only federal agency that grants permission for wind energy development on public land and it has permitted approximately 500 MW of installed capacity, or five percent of the nation’s total.135 Due to their location of in prime wind locations, BLM lands will continue to be an important focus of wind energy development.136 The agency recently established comprehensive policies and best management practices (BMPs) for analyzing wind energy 131

Economic Recovery Tax Act of 1981, Pub. L. No. 97-034, 95 Stat. 230 (1981) (codified at 26 U.S.C.S. § 168(e)(3)(B)(vi) (2008)).

132

See Information Release, Internal Revenue Serv., Clean Renewable Bond Volume Cap Allocation Information (Nov. 20, 2006), available at http://www.irs.gov/newsroom/article/0, id=164423,00.html.

133

See Nat’l Econ. Council, supra note 11, at 13. This initiative, announced by President Bush in February 2006, called for a twenty-two percent increase in Department of Energy funding for clean energy technology research in the fiscal year 2007 budget. This increase pales by comparison to the Solar America Initiative, which increases federal solar research funding by 65 million dollars to a total of 148 million dollars in fiscal year 2007. Id.

134

See U.S. Dep’t of Energy, Wind Powering America: Farm Bill, http://www.eere.energy.gov/ windandhydro/windpoweringamerica/ag_farm_bill.asp (last visited Dec. 27, 2007). For example, during the first four years of the program, the Department of Agriculture awarded 84 million dollars in grants and 34 million dollars in loan guarantees to 807 projects in 44 states. The grants fund a wide range of wind, solar, biomass, geothermal, and conservation technologies. Id.

135

U.S. Gov’t Accountability Office, GAO-05-906, U.S. Wind Power: Impacts on Wildlife and Government Responsibilities for Regulating Development and Protecting Wildlife 32 (2005) [hereinafter GAO Wildlife Report].

136

As of September 2005, the BLM approved eighty-eight applications for new projects and had sixty-eight pending applications to review. Id.

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developments through a Final Programmatic Environmental Impact Statement (PEIS).137 The proposed Wind Energy Development Program would affect all BLM-administered lands in eleven western states and would set general mitigation standards.138 The comprehensive approach taken in the BLM policy suggests that federal lands will increasingly be available to private firms wishing to develop wind energy resources. The U.S. Forest Service recently developed national guidance to evaluate wind energy proposals on national forest system lands, and the Department of the Interior also recently proposed a general authorization of energy development project on Native American tribal lands.139 The federal government can further support wind power by permitting wind power development projects on public lands under its control. A large limitation on such a policy, however, is the inability of such projects to find transmission lines with which to connect. d. Federal Regulation The federal government’s role in regulating wind power projects is limited. Generally, federal project control is restricted to projects taking place on federal lands or having some other form of federal involvement. While the Federal Energy Regulatory Commission (FERC) regulates interstate energy transmission, it has no authority to regulate the actual construction of electricity generation and transmission facilities, which is reserved for state and local governments.140 Federal rules and regulations that could affect wind power development include environmental rules141 and civilian and military radar interference controls.142 Some of these federal regulatory restrictions have the potential to slow or derail wind power developments. 137

See BLM Wind Development Impact Statement, supra note 71.

138

Id. at ES-3.

139

Renewable Energy on Federal Lands: Testimony Before the S. Comm. on Energy and Natural Resources, 109th Cong. (2006) (statement of Sally Collins, Assoc. Chief, U.S. Forest Serv.), available at http://www.fs.fed.us/congress/109/senate/oversight/collins/071106.html.

140

See Fed. Energy Regulatory Comm., About FERC, http://www.ferc.gov/about/fercdoes.asp (last visited Jan. 22, 2008) (stating that FERC does not regulate the construction of energy generation and transmission facilities).

141

See, e.g., National Environmental Policy Act of 1969 § 102(2)(C), 42 U.S.C.S. § 4332 (2008).

142

National Defense Authorization Act § 358, Pub. L. No. 109-163, 119 Stat. 3136 (2006), requires the Department of Defense to study and report to Congress on the effects of wind projects on military readiness, specifically whether windmill facilities interfere with military radar. In September 2006, the Department of Defense issued its report to Congress. See Office of the Dir. of Def. Research & Eng’g, Dep’t of Def., the Effect of Windmill Farms on Military Readiness (2006). The report concluded that air defense radars could be adversely affected by wind power projects but that mitigation practices did exist to preclude such effects. It left the primary responsibility to the FAA and to the National Weather Service to determine effects on Air Traffic Control radar and weather forecasting radars. Id. at 4.

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e. Federal Renewable Portfolio Standards One recently proposed House Bill, H.R. 969, establishes a federal Renewable Portfolio Standard (RPS) that requires electric utilities to increase their share of generation from wind, solar, and other renewable energy sources from one percent in 2010 to twenty percent by 2020 and thereafter.143 If enacted, this bill would establish a renewable energy floor for most American utility companies and would drive the production of renewable power to a higher level, while still allowing states to maintain higher RPS standards if desired.144 Energy suppliers would be able to meet these national requirements either by producing renewable energy or by purchasing credits from other entities.145 The policy proposal embodied in this Bill was made at the same time the European Union (EU) endorsed binding GHG targets, which require EU nations to provide twenty percent of their power from renewable sources, including wind, solar, and hydroelectric power, by 2020.146 2. State Policies on Wind Power States and local governments are enacting a broad array of policies and programs to promote renewable energy and wind power development and, thus far, are the leaders in the development of renewable energy in the United States. State policies generally fall into two categories: regulatory techniques and economic subsidy devices. The initiative taken in most states reflects a belief in the potential of renewable energy as an important, non-polluting contributor to the electrical supply, and as a force for local economic development. a. Regulatory Techniques States have taken the lead with wind power development by providing regulatory mechanisms that facilitate wind power facility siting and electrical utility policies that support the growth of renewable energy projects. While state policies in these areas possess similarities, there is no general template that all states follow. i. Wind Power Siting Procedures Since most wind power development takes place on non-federal land, the state and local governments maintain primary responsibility for siting regulation. This permitting or approval control is undertaken in a variety of ways, including procedures directed by the local government, the state government, or a hybrid of state and local governments. Some states maintain exclusive control over energy facility siting at the state level of government, with a state board responsible for wind

143

H.R. 969, 110th. Cong. § 610(c) (2007).

144

Id.

145

Id.

146

Dan Bilefsky, Europe Sets Ambitious Limits on Greenhouse Gases, N.Y. Times, Mar. 10, 2007.

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facilities and other energy plants. In Connecticut and Oregon, for example, state statutes grant approval authority to specialized siting boards.147 Other states, such as Minnesota and Vermont, allot permitting authority to general utility commissions rather than facility siting panels.148 State agencies in Kansas and Wisconsin use voluntary guidelines or model local government codes to deal with wind power siting regulation.149 In sum, the regulatory regimes adopted by states vary in sophistication and are “evolving.”150 Some state and local regulators have developed an expertise in evaluating project impacts, while others have little experience in assessing and mitigating the environmental and other effects. These latter jurisdictions should draw on the experience and regulations developed by those states with substantial experience in siting issues. Perhaps with time, wind power projects will be assessed in a fashion that carefully considers site-specific characteristics so as to minimize adverse impacts.151 Important questions remain concerning the most appropriate procedure for making significant decisions with respect to large facility siting. ii. Renewable Energy Portfolio Standards One of the most significant state policy devices that encourages renewable electricity development is the state-based RPS–a utility regulation that requires firms to supply a minimum percentage of their electrical load with eligible sources of renewable energy.152 The overall goal of an RPS is often to reduce statewide

147

The Connecticut Siting Council regulates the siting of renewable energy projects of more than one MW. CONN. GEN. STAT. §§ 16-50(g)-(aa), 16-50(j)-(z) (2006). Oregon law requires that energy facilities with generating capacities of 105 MW or more must be approved by the Oregon Energy Facility Siting Council. OR. REV. STAT. §§ 469.300–469.560 (2006); OR. ADMIN. R. 345-001-000 et seq. (2006).

148

MINN. STAT. §§ 116C.691–697 (2006); VT. STAT. ANN. tit. 30 § 248 (2006).

149

In 2005, the Kansas Energy Council issued a Wind Energy Siting Handbook, which provides cities and counties non-binding advice based on the experience of four Kansas counties. Kan. Energy Council, Wind Energy Siting Handbook: Guideline Options for Kansas Cities and Counties (2005). In Wisconsin, the Department of Administration developed a model wind ordinance to guide towns and counties. Dep’t of Admin., State of Wis., Draft Model Wind Ordinance for Wisconsin (2007).

150

GAO Wildlife Report, supra note 134, at 22.

151

In 2002, the Sierra Club issued a Wind Siting Advisory Document that identifies relevant issues to consider in a wind power siting application. The Document creates a useful four-level hierarchy of development preferences for particular lands, ranking them most appropriate, more appropriate, less appropriate and not appropriate. Sierra Club, Sierra Club Conservation Policies: Wind Siting Advisory http://www.sierraclub.org/policy/conservation/wind_siting. asp (last visited Mar. 16, 2008).

152

Database of State Incentives for Renewable Energy, Glossary, http://www.dsireusa.org/ glossary/glossary.cfm?EE=1&RE=1&CurrentPageID=8#renewables (last visited Jan. 27, 2008) [hereinafter Dsire Glossary].

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GHG emissions.153 As of 2006, twenty-three states and the District of Columbia maintained RPS requirements in some form.154 Some states require achievement of target percentages in the near term (five percent by 2006 in New Mexico) while others set their standards farther out (fifteen percent by 2025 in Arizona); the more distant attainment dates have the highest required percentages of renewable energy.155 California, Colorado, Connecticut, Illinois, Maine, Massachusetts, Montana, New Mexico, New York, and Nevada all have RPS targets ranging from ten to twenty percent to be achieved by 2017.156 In February 2007, the Minnesota legislature passed the most advanced state policy on renewable power in the nation. Its RPS legislation requires electric utilities in the state to meet a twenty-five percent RPS by 2025, with its largest utility expected to reach thirty percent renewable by 2020.157 While the specific elements of each particular state’s RPS system differ, wind energy is always included within the definition of renewable energy in a state-based RPS. iii. Utility Regulatory Policies A range of regulatory policies are employed across the nation to provide information for energy consumers and encourage the production of renewable power. Each type of policy is summarized below. • Generation Disclosure Rules: Twenty-four states and the District of Columbia require that electrical utilities disclose to their customers information about the electrical energy they purchase.158 In particular, utilities must provide fuel mix data and emissions information to educate consumers about the source of their electricity.159 Some states go one step further and require that electrical utilities

153

See, e.g., Five Western Governors Announce Regional Greenhouse Gas Agreement, Clean Edge News, Feb. 27, 2007, http://www.cleanedge.com/story.php?nID=4583.

154

Database of State Incentives for Renewable Energy, Renewable Portfolio Standards Map, http://www.dsireusa.org/documents/SummaryMaps/RPS_Map.ppt (last visited Jan. 27, 2008) [hereinafter DSIRE Map].

155

Am. Wind Power Ass’n, State-Level Renewable Energy Portfolio Standards, http://www. awea.org/legislative/pdf/RPS_Fact_Sheet.pdf (last visited Dec. 27, 2007).

156

Dsire Map, supra note 153.

157

See Press Release, Minn. Office of the Governor, Governor Pawlenty Signs Strongest Renewable Energy Requirement in the Nation (Feb. 22, 2007), available at http://www. governor.state.mn.us/mediacenter/pressreleases. In 2007, Governor Tim Pawlenty signed legislation setting the “25 x ‘25” goal for renewable energy in Minnesota. The law specified that Xcel Energy, the state’s largest utility, would be obligated to meet a thirty percent renewable standard by 2020, with twenty-five percent of that standard to be supplied by wind power. Id.

158

Database of State Incentives for Renewable Energy, Generation Disclosure Rules for Renewable Energy, http://www.dsireusa.org/library/includes/seeallincentivetype.cfm? type=D isclose¤tpageid=7&back=regtab&EE=1&RE=1 (last visited Jan. 17, 2008).

159

See id.

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certify the actual sources of their power and assure their customers that the firm actually uses them.160 • Green Power Purchasing and Aggregation Policies: Ten states and twenty localities allow individuals and government units to purchase “green power,” generated by renewable sources.161 Municipalities, state governments, businesses, and other non-residential customers such as universities can play a critical role in supporting renewable energy technologies by purchasing electricity from renewable sources.162 At the local level, green municipalities may purchase this kind of electrical power for municipal facilities, streetlights, and waterpumping stations, among other uses.163 Several states require that a certain percentage of green power be purchased for use in state government buildings.164 A few states allow local governments to aggregate the electricity loads of the entire community to purchase green power,165 while others allow localities to join with other communities to form a large purchasing block, often called “Community Choice.”166 • Interconnection: Thirty-four states and the District of Columbia have developed or are developing interconnection rules that establish technical standards for independent electrical generation sources to use when they wish to sell their power to the utility grid.167 These sources, known as distributed power sources, must meet FERC-specified engineering standards so that their power can safely and efficiently flow into utilities lines.168 b. Economic Subsidies and Incentives A significant number of states employ policies to encourage both the development of renewable energy supply and the consumption of renewable power. States take a

160

New Jersey, Pennsylvania, and Vermont all require this extra step. See N.J. STAT. ANN. § 48:3–87 (West 2007); 54 PA. CODE § 54.6 (2007); VT. STAT. ANN. tit. 30, § 209(f ) (2007).

161

Database of State Incentives for Renewable Energy, Green Power Purchasing/ Aggregation Programs for Renewable Energy, http://www.dsireusa.org/library/includes/seeallincentivetype.cfm?type=Purchase¤tpageid=7&back=regtab&EE=1&RE=1 (last visited Jan. 27, 2008) [hereinafter DSIRE Green Power].

162

Dsire Glossary, supra note 151.

163

See id.

164

Dsire Green Power, supra note 160.

165

See id.

166

Cape Code and Martha’s Vineyard are two localities participating in “Community Choice” programs. See id.

167

Database of State Incentives for Renewable Energy, Interconnection Incentives for Renewable Energy, http://www.dsireusa.org/library/includes/seeallincentivetype.cfm?type=Interconnecti on¤tpageid=7&back=regtab&EE=0&RE=1 (last visited Jan. 27, 2008).

168

See id.

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broad range of approaches, such as encouraging particular regulatory policies and implementing tax rules or financial support mechanisms. i. Net Metering Laws Thirty-five states and the District of Columbia use net metering laws.169 For consumers with their own electricity generating units, net metering allows for the flow of electricity both to and from the customer through a single, bi-directional meter. With net metering, during times when the customer’s generation exceeds use, electricity from the customer moves to the utility and is credited to the customer’s account.170 The consumer offsets costs of utility-supplied electricity with the possibility of having the utility pay the small generator.171 Net metering laws may be beneficial for small wind turbine owners such as farmers and ranchers. ii. State Tax Incentives States offer at least four types of tax incentives to assist and attract renewable energy production. These financial incentives can act to subsidize the cost of energy produced by wind power facilities and make wind-generated electricity competitive in cost with other forms of production. • Property Taxes: Twenty-nine states offer property tax exemptions, exclusions, and credits for renewable power, including wind energy.172 These policies take many forms, but the net result is to reduce state or local government property taxes on renewable energy equipment.173 • Personal and Corporate Income Taxes: Seventeen states make personal income tax incentives available.174 Twenty states allow corporate income tax payers benefits for the expense of purchasing and installing renewable energy equipment.175

169

Database of State Incentives for Renewable Energy, Net Metering Rules for Renewable Energy, http://www.dsireusa.org/library/includes/seeallincentivetype.cfm?type=Net¤t pageid=7&back=regtab&EE=0&RE=1 (last visited Jan. 27, 2008).

170

Dsire Glossary, supra note 151.

171

See id.

172

Database of State Incentives for Renewable Energy, Property Tax Incentives for Renewable Energy, http://www.dsireusa.org/library/includes/seeallincentivetype.cfm?type=Property&cur rentpageid=7&back=fintab&EE=0&RE=1 (last visited Jan. 27, 2008).

173

Dsire Glossary, supra note 151.

174

Database of State Incentives for Renewable Energy, Personal Tax Incentives for Renewable Energy, http://www.dsireusa.org/library/includes/seeallincentivetype.cfm?type=Personal&cur rentpageid=7&back=fintab&EE=0&RE=1 (last visited Jan. 27, 2008).

175

Database of State Incentives for Renewable Energy, Corporate Tax Incentives for Renewable Energy, http://www.dsireusa.org/library/includes/seeallincentivetype.cfm?type=Corporate&c urrentpageid=7&back=fintab&EE=0&RE=1 (last visited Jan. 27, 2008).

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In some instances, tax credits are provided for between ten and thirty-five percent of the costs.176 • Sales Taxes: Eighteen states allow for sales tax exemptions on the purchase of renewable energy equipment, including wind turbines.177 This policy effectively provides a subsidy for the acquisition of wind power mechanical units in the amount of the state’s sales tax rates. iii. State Financial Support A relatively large number of states provide financial support that promotes renewable energy production. This financial support takes various forms, each with different levels of use: grants (eighteen states),178 loans (twenty-two states),179 rebates (eighteen states),180 bonds (two states),181 and production incentives (six states).182 Furthermore, eighteen states and the District of Columbia have public benefit funds that charge customers utility bills to create a fund to be used for renewable energy research, development, and education.183 V. RECOMMENDATIONS FOR POLICY DEVELOPMENT The United States runs on a great deal of electricity. It is currently the world’s largest consumer of electric power and is projected to maintain that position for at least the next two decades.184 The nation should work towards improving the energy 176

Dsire Glossary, supra note 151.

177

Database of State Incentives for Renewable Energy, Sales Tax Incentives for Renewable Energy, http://www.dsireusa.org/library/includes/seeallincentivetype.cfm?type=Sales¤ tpagei=7&back=fintab&EE=0&RE=1 (last visited Jan. 27, 2008).

178

Database of State Incentives for Renewable Energy, Grant Programs for Renewable Energy, http://www.dsireusa.org/library/includes/seeallincentivetype.cfm?type=Grant¤tpagei= 7&back=fintab&EE=0&RE=1 (last visited Jan. 27, 2008).

179

Database of State Incentives for Renewable Energy, Loan Programs for Renewable Energy, http://www.dsireusa.org/library/includes/seeallincentivetype.cfm?type=Loan¤tpageid =7&back=fintab&EE=0&RE=1 (last visited Jan. 27, 2008).

180

Database of State Incentives for Renewable Energy, Rebate Programs for Renewable Energy, http://www.dsireusa.org/library/includes/seeallincentivetype.cfm?type=Rebate¤tpagei d=7&back=fintab&EE=0&RE=1 (last visited Jan. 27, 2008).

181

Database of State Incentives for Renewable Energy, Bond Programs for Renewable Energy, http://www.dsireusa.org/library/includes/seeallincentivetype.cfm?type=Bond¤tpageid =7&back=fintab&EE=0&RE=1 (last visited Jan. 27, 2008).

182

Database of State Incentives for Renewable Energy, Production Incentives for Renewable Energy, http://www.dsireusa.org/library/includes/seeallincentivetype.cfm?type=Production& currentpageid=7&back=fintab&EE=0&RE=1 (last visited Jan. 27, 2008).

183

Database of State Incentives for Renewable Energy, Public Benefit Funds for Renewable Energy, http://www.dsireusa.org/library/includes/seeallincentivetype.cfm?type=PBF¤t pageid=7&back=regtab&EE=0&RE=1 (last visited Jan. 27, 2008).

184

See Energy Info. Admin., U.S. Dep’t of Energy, International Energy Outlook tbl. H1 (2007), available at http://www.eia.doe.gov/oiaf/ieo/excel/ieoecgtab_1.xls.

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efficiency of all aspects of life and should accelerate the diversification of its energy supply for both environmental and economic reasons. Encouraging the development of an increasingly larger wind power industry can make an important contribution to American energy supply in a sustainable and environmentally-responsible manner. The existing wind power development trend should be reinforced by supportive governmental policies. Wind power boasts clear benefits that deserve serious consideration by policy makers and the public as the nation makes choices concerning its energy future. The transformation of American energy policy towards a greater reliance upon wind power will be achieved, if at all, by private market investment in the technology. The role of public policy in this endeavor should be the establishment of a mix of incentives and supportive policies that reinforce market decisions. Energy policy should seek to reinforce the technologies and practices that advance larger societal goals. If wind power is to become an important contributor to American energy supply in the future, at least six steps must be taken. First, favorable local, state, and federal governmental policies must be established to provide the wind power industry with a stable and predictable regulatory environment. Policy predictability is necessary to assure those taking risks a consistent policy landscape upon which to base their decisions. It is also necessary to assure that turbine manufacturers and component suppliers will expand their own capacity to provide a steady flow of the necessary parts for a new wind power project. Government energy policy should have longer time horizons so that market participants can plan long term investments. State and federal governments should work together to maximize wind power’s long-term potential to provide a significant amount of electricity well into the future. Second, some form of financial incentives should be utilized to subsidize wind energy through higher power payments or favorable tax policy. Such payments could be combined with a tax on fossil fuels to remove their hidden subsidies and to ease the shift to new energy technology. This program of financial assistance must remain stable for at least ten years so that developers, investors, and consumers can accurately predict their streams of revenue. Over time, as wind technology becomes more cost-effective, further consideration can be given to whether financial policies such as these should be scaled back or dropped altogether. This would depend upon the future cost structure of wind power, and on the desire to develop non-fossil fuel-based sources of electricity. Third, government policy, at both the state and federal levels, should include comprehensive, non-financial government assistance to the wind power industry. This form of assistance should include greater support for research and development of generating technology, product testing and certification, wind resource mapping, advance site acquisition, and encouragement of small community ownership and operation. Public land policy should be developed to make appropriate lands with high wind resources available to wind power developers on a fair lease 410

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or royalty basis. The wide array of supportive and effective policy instruments should be broadly publicized so that they may be extended to other jurisdictions. Fourth, wind power siting and operational considerations must be addressed. As with coal-fired or natural gas-fired plants, potential wind power sites could be considered off-limits for power plant development. Deciding these questions of siting preference and exclusion requires a careful identification of important societal values and prioritization of interests. Ultimately, decisions must be made on the overall desirability of the proposed project. Perhaps the best choice would incorporate a larger conception of the public interest by vesting the project decision at the state level with a required consideration of local opinions. Fifth, the problems associated with wind power should be identified and seriously analyzed so that those problems can be accurately addressed and mitigated. Certain technical questions, such as those involving wildlife, lighting and radar effects, transmission connectivity, and turbine safety should be studied and resolved with optimal solutions for the industry and surrounding communities. Not every constituency will be satisfied, but the decision-making process should be a transparent one, based on the best technical data available, and made by a politicallyaccountable decision maker. Operating experience at existing wind power facilities should also be assessed and used to predict new plant impacts. Finally, the public must be better informed about the costs and benefits of wind power so that it can fully understand the implications of embracing the new technology. There are undoubtedly objective aspects to the promotion of wind generated electricity, but subjective factors also have an effect in public perceptions about the desirability of wind generation. Perhaps the public will increasingly view wind turbines as benign, nonpolluting generators of electrical power generally of benefit to American society. Recent polling data suggests that the American public strongly supports non-polluting renewable energy technologies and would therefore be likely to accept increased reliance on such forms of electrical supply.185 Evidence from Europe also suggests a high level of public support and acceptance of wind power facilities.186 This positive public view would greatly assist the shift towards wind power. Solidly popular attitudes, in combination with careful siting and project design, can make electricity from the wind an important part of America’s energy future.

185

Am. Wind Energy Ass’n, Americans Overwhelmingly Support Federal Incentives for Renewable Energy: Zogby Poll, http://www.awea.org/newsroom/releases/poll_renewable_ energy_012208.html (last visited Feb. 8, 2008) (noting that eighty-five percent of Americans responding to a Zogby poll agreed that the federal government should “encourage greater use of renewable energy technologies such as wind and solar power”).

186

See, e.g., Eurobarometer, Eur. Comm’n, Attitudes Towards Energy 7 (2006), available at http://ec.europa.eu/public_opinion/archives/ebs/ebs_247_en.pdf.

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INDEX A A. v. Home Secretary, 40, 41, 52n211, 53n212 Abbott, Kenneth, 352n43, 353n49 ‘Abd Al ‘Ali, Hammudah, 332n103, 334n117 Abdelkrim-Chikh, Rabia, 194n7 Abdullaev, 108n3 abortion clinics, 242 Abrashi, Fisnik, 166n6 absolute ban on torture and terrorism, 229–31 Abu Ghraib prison, 76, 172, 210, 226, 250 Abu Sayaf, 81 accountability in Security and Prosperity Partnership of North America (SPP) agreement, 345–46 Ackerman, Bruce, 10n31, 93n266 act of state doctrine and crimes against humanity, 157–58 active presidency, 64 Adams, John, 61, 66 Adelman, Howard, 130n157 administrative costs of victim compensation schemes, 154–55 administrative model for detaining terrorism suspects advantages of, 23–30 development of, 45–54 Aegis, 172 Afghanistan Amnesty International report on, 196n15 detention of enemy combatants at Bagram Air Force Base, 93, 223 enemy combatant classification, 76 Hizb-I Islamic Gulbuddin jihadist group, 81 9/11 Public Discourse Project report, 96 non-state actors’ liability for human rights violations, 240 private military and security company use in, 163–92 relation to establishment of Muslim state in Arab heartland, 80 and spread of Muslim fundamental armed groups, 248 timing of U.S. attacks in Afghanistan, 101

Afghanistan (cont.) 2003 attacks by Taliban and al-Qaeda, 72 2004 attacks by Taliban and al-Qaeda, 77 U.S. military action post-9/11, 72, 75, 101 women’s rights in Afghan constitution, 311–341 Africa oil exploration in Sudan, 107–61 U.N. Convention Against Mercenaries, 174 use of mercenaries generally, 174 African Charter on Human and Peoples’ Rights, 15n51, 21–22n76, 21nn73, 22n77, 75 African religions in Sudan, 111 African Union Mission in the Sudan (AMIS), 123–24, 150 African Union Peace and Security Council (AUPSC), 123–24 aggression, crime of, 177 agro-terrorism, 84–85 Aguayo, Sergio, 129n152 Ahani v. Canada, 26, 50 aiding and abetting genocide, 139, 159 air pollution, 393 Air Quality Agreement, 371 airlines, post-9/11 American aid to, 73 airports 9/11 Public Discourse Project report, 94–96 psychological limitations to President’s security measures, 88–89 security work force, 73, 93, 101 technological innovations to prevent terrorist attacks, 86 airspace security, 96 Aït-Hamou, Louisa, 194n7 AK-47 availability, 82 Akhavan, Payam, 126n144, 132n165, 147n263 Al Nabaheen, Shadi Sleyman, 285 Al Qaradawi, Sheik Yussuf, 285, 285n1 al-Aksa Martyr Brigade, 74 Al-Ali, Nadje, 90, 328n82, 330nn89 al-Aqsa Martyrs Brigades, 281 al-Bashir, President Omar Hassan, 107, 113, 119, 122, 125–26, 134 al-Da’wa, 330

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413

Index

Al-Fadhily, Ali, 329n88 Algeria definitions of terrorism, 216–17 Djazairouna, 251–52 El Manara movie, 194–97 journalist’s testimony, 233 movie about civil war in, 194–97 Salafist Group for Preaching and Combat jihadist group, 81 use of private military and security companies (PMSCs) in, 168 Alien Tort Claims Act, 155, 159 Al-Jazeera, 280 Allen, Anita L., 319n32 Allen, Mike, 198–99n22 al-Manar, 280–81 Alnasrawi, Abbas, 154n306 al-Nimeiry, President Gaafar, 112 al-Nur, Abdel Wahid, 150 al-Qaeda Afghanistan, attacks in, 72, 77 American national security focus, 55 capture of, 1 detention of members or supporters of, 44, 48–49 foundational myth of, 262, 264–65 “Global Jihad,” 79–83 human rights threat posed by, 246–52 London terrorist bombing, 78 Madrid railway station bombing, 77, 246 narrative use by, 257, 262–63 September 11, 2001 attacks by, 70–71, 242 at war with United States, 9–10 Alston, Philip, 239, 239nn230–31 Alter, Jonathan, 226, 226n163 Alvarez, José, 225n162 Alvarez, Jose E., 147n263, 158n326 al-Zarqasi, Abu Musab, 80 al-Zawahiri, 81 Amann, Diane, 210n71 American Civil Liberties Union, 188n109 American Convention on Human Rights, 15n51, 21–22n76, 21n73, 22n77 Amnesty International Afghan report, 196n15, 224n152 Algerian civil war, 196n12 Colombia’s political violence, 16, 196nn15, 242n233, 2334n195 compensation fund for Darfur victims, 152, 152n295 Comprehensive Convention on International Terrorism, 216n111

414

Amnesty International (cont.) Darfur, 120n92, 126n142, 142n228, 145, 145nn253, 148, 150n283, 152, 152n295, 256 Israel report, 210n73 Madrid bombers’ trials, 252 “terrorism” term use, 215–16, 217–18nn119 torture, action manual for combating, 198n21 “war on terror” detentions, 223n149, 224n152 women, violence against, 239n216 analogies’ role in psychology of terrorism, 259–60 Anderson, John Ward, 33–34n126 Anderson, Kenneth, 351n41 Anderson, Scott, 134nn173–74 Andreopoulos, George, 252n286 Anfal campaign, 153–54, 154n304 Angola, 82, 168 Annan, U.N. Secretary-General Kofi counterterrorism strategy, 218n122, 233n192 criticism of preemption doctrine, 75 genocide in Sudan, 121nn96–97 Ansar Al-Islam jihadist group, 81 anthrax, 72 anti-Americanism, 82 anti-terrorist treaties, 73 antitrust policy and international economic networks, 354 Anzieu, Didier, 291nn29–31 Aolain, Fionnuala Ni, 8n23, 17n57, 18n59, 24n83 Appleby, R. Scott, 245n249 Arab population in Sudan, 111 Arakis Energy Corp., 140 Arar, Maher, 34n130, 36n138, 228n173 arbitrariness standards for detention of terrorism suspects, 22–23, 28–30, 48–52 Arbour, Louise, 100, 214, 214nn98 Argentina, bombing of Jewish community centers in, 277 Aristotle’s Rhetoric, 268–70, 268n35 Arkin, William M., 164n1 armed conflict model for detaining terrorism suspects, 1–54 Armenian genocide compared to Darfur, 128–33 arms embargo in Sudan, 144–46 arms sales. See weapons sales and purchases Arshad, Amna, 328n79 Asahara, Shoko, 290 Asch, Stuart S., 305n94 Asian Centre for Human Rights, 219 Asmus, Peter, 380n13, 387n51 Assyrian genocide compared to Darfur, 128–33 Astill, James, 127–28n150 Aston, Adam, 391n81

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asylum laws and human rights law, 251 asymmetrical warfare and research on suicide bombers, 55, 55n2, 80, 83, 83n207, 87, 286–88 Athens, Lonnie H., 289n26 Atkins, Drew R., 41n160, 3041n112 Atran, Scott, 25, 289, 289nn24, 310n98 Atta, Muhammad as product of group psychology, 294 Aum Shinrikyo, 290, 291n28 Australia Iraq war troops, 74 security-based detention of terrorism suspects, 41n161 support of CIA detentions, 33–34n126 Avant, Deborah, 166n8, 179n76 avian influenza, 359

B Bachelet, Pablo, 144n244 Bacon, Francis, 60n36 Baghdad. See Iraq Bagram Air Force Base, detention of enemy combatants at, 93, 223 Baker, James E., 13n44 Balkans, use of private military and security companies (PMSCs) in, 180 Balkin, Jack, 7n21 ban on private military and security companies (PMSCs), 185–86 ban on torture and terrorism, 229–31 Bandajevsky v. Belarus, 26 Bangladesh, 130, 219 bank capitalization requirements and international economic networks, 354 Barber, Benjamin R., 260n8 Barber, Sotirios, 204n40 Barlow, Maude, 343n1, 345n12, 365n112, 366n114 Barnett, Thomas P.M., 55n2, 83n207 Barratt, Barnaby B., 301n75 Barsoom, Peter, 373n147 Bashir, Abu Baker, 1, 18–20 Basle Committee, 351 Bassiouni, Cherif, 177, 177nn68–69, 182n90 Basu, Amrita, 244n244 Baylouny, Ann Marie, 282n75 Bazyler, Michael, 149n276, 150n279, 155n310 Beaudoin, Alain, 363n105 Bechtold, Peter, 127 Becker, Ernest, 74, 92, 301, 301nn72, 305nn91 Bedau, Hugo Adam, 227n172 Beike, Denise R., 264n20 Beit-Hallahmi, Benjamin, 302n77

Belarus, Bandajevsky v., 26 Bellamy, Alex, 228n174 Bellinger, John B., III, 2n6 Ben-Ari, Eyal, 266n27 Benford, R., 274n46 Benhabib, Seyla, 252nn286–87, 253, 253n288 Bennet, Tw, 311n21 Bennhold, Katrin, 35n135, 38nn142, 144 Bennoune, Karima, 15n50, 193–255, 194nn4, 6, 205n47, 244, 244nn242, 249n268 Bennoune, Mahfoud, 194nn3–5, 249 Bentham, Jeremy, 231n185 Benvenisti, Eyal, 372n143 Bergquist, Amy, 3n12 Berkeley, Bill, 266n24 Berko, Anat, 289, 289n24, 310n98 Berlusconi, Prime Minister, 33–34n126 Bernstein, Stephen, 370n133 Beruto, Gian Luca, 3n12 Beswick, Stephanie, 111n14 Bhatt, Chetan, 245n249, 249n267 Bilder, Richard, 229n177 Bilefsky, Dan, 404n146 bin Laden, Osama first declaration of war against U.S., 9n29 foundational myth of Al Qaeda, 263 January 2006 broadcast message, 79 justifications for terrorism, 188, 232n186 9/11 Commission report, 18n61 as product of group psychology, 294 Binyion, Rudolph, 292n32 biological weapons post-9/11 measures in U.S., 74 preventive measures, 85 psychological limitations to President’s security measures, 88–89 terrorist attacks using, 10 biomass as energy source, 382, 383, 385 Bion, Wilfred R., 291nn29–31 birds and wind turbines, 400 Biro, Gáspár, 117n70 Bismullah v. Gates, 44, 48 Biswas, Santik, 208n61 Bix, Herbert P., 149n276 black markets, 78, 182 Blackstone, William, 59, 59nn28–31 Blackwater, 164n1, 167n10, 169n21, 171n31, 172 Blair, David, 18n61, 143n237, 143n239 Block, Robert, 87n232 Blomquist, Robert L., 55–105, 71n109, 87n235, 90n250, 97n312 Bloom, Mia M., 310n98

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415

Index

Bodansky, Daniel, 370n133 bodyguard services, 170–71 bombing in Afghanistan, 72 in Bali, 1 Beirut truck bombing of U.S. Marines, 277 car bombing in Beirut killing former Lebanese prime minister, 78 in London July 2005, 78 Madrid railway station, 77, 246 Red Sea town terrorist bombing, 79 in Sudan, 121, 125 See also suicide bombings Bone, James, 119, 123n118 Bonner, Raymond, 19n67, 35n134 Bonthuys, Elsie, 20, 311nn19, 317n28 Boot, Max, 178n72 border security post-9/11 actions in U.S., 74, 93, 95, 358 by private security companies (PSCs), 169 Borelli, Silvia, 219n129 Borgward, Elizabeth, 111n20 Born, Hans, 184n100 Boserup, Louise Krabbe, 149n277 Bosnia genocide in, 131 private military and security companies (PMSCs) in, 167n12, 172, 181–82 transfer of terrorism suspects to U.S. or other state for detention, 35n134 Bothe, Michael, 9n28, 14–15n50, 49n201, 50n202 Boulesbaa, Ahcene, 221n137 Bowden, Mark, 170n24 Boyd, John, 270 Bracton, Henry, 18, 57–58, nn15–16 Bradley, Curtis A., 49n200 Braine, Naomi, 274n47 Brandt, Michele, 329n84 Bratspies, Rebecca, 348n23 Brazil’s ethanol production, 386 Bremer, Paul, 170, 330 bribery and private military and security companies (PMSCs), 182 bridges vulnerable to terrorist attacks, 82–83 Brinkley, Joel, 172n35 Broder, John M., 167n10, 169n20, 181n87, 185n100 Brogan v. United Kingdom, 25, 25nn85–86 Brokaw, Tom, 72 Brooks, Rosa, 8n26 Brooks, Rosa Ehrenreich, 4n14 Brown, James F., 127–28n150 Brown, Nathan J., 78, 327nn73, 330n93

416

Bruce, Steve, 245n247 Bruin, Rene, 251n22 Brunnée, Jutta, 373n147 Brush Charles, 387 Brussels Conference of 1874, 174n48 Brzezinski, Matthew, 86n229 Buie, Dan H. Jr., 297n56 Bureau of Land Management lands, 390, 398, 402–03 Burgers, J. Herman, 221n137, 222n143 Burnett, Victoria, 170n24 Burns, Jimmy, 34n127 Burns, John F., 127–28n150 Burr, Millard, 114n39, 115nn45–48, 115nn50–52, 116nn53–55, 117n65, 140n215 Burundi genocide, 131 Bush, George H.W., 224 Bush, President George W. broad definition of terrorism, 75 energy problems in U.S., 377–78 federal backstop insurance for terror claims, 78 “outrages upon human dignity, 222, 222n148 post-9/11 actions, 72–76 President’s Speech on Military Commissions, 3n9, 32n116 record of response to terrorism since 9/11, 93–97 Security and Prosperity Partnership of North America (SPP), 343, 356n65 warrantless surveillance of terrorism suspects authorized, 79 Bush, Rasul v., 42–43, 76 Butler, Linda, 310n98 Butler, Pierce, 63, 65 Byman, Daniel, 266n28, 282n76

C CACI International, 172 Caiazza, Amy, 243n237 Calabresi, Steven G., 97–98n312 Calderón, President Felipe, 343, 356n65 California employment benefits of wind power plants, 394–95 wind power capacity, 391–92 wind power plants, 380n14 Cambodian genocide, 130 Cameron, Lindsey, 57, 82, 175nn55, 180nn80 Campbell, Bruce, 367nn119–20 Canada detention of Maher Arar, 34n130, 36n138 detention of terrorism suspects pending deportation, 39 Security and Prosperity Partnership of North America (SPP), 343–75

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Index

Canada, Ahani v., 26, 50 Canada, Charkaoui v., 39, 48 Canada, Suresy v., 36n137 Canada-United States Free Trade Agreement, 357 Canada-US Air Quality Committee, 349, 350, 352 Canadian Council of Chief Executives, 347n72, 358, 362n100, 363n103 Caparini, Marina, 184n100 Cape Cod, 399 Cape Wind, 399 Capps, Robert, 86, 172n33, 181nn85 carbon-based fuels, 378–79, 383, 393–94 cargo containers’ vulnerability to terrorist attacks, 82–84, 94–96 Carlile, Lord Alex, 40n157 Carlile Reports, 40n157, 41nn162–164, 51n207 Carney, Heather, 166n7 cartoons of Prophet Muhammad, 79, 250 Carwardine, Richard, 98nn313, 99–101nn320–339, 104nn352, 315, 318–319, 355 Caryl, Christian, 149n276 Casebeer, Lt. Col. William D., 257–283 Casebeer, William D., 260n11, 261, 261n12, 266n25, 269n36, 279n63 Casey, Lee A., 226n165 Cassese, Antonio, 213, 213n95, 219 Catan, Thomas, 179n77 Cato’s suicide, 297 Ceaucescu, Nicolae and Elena, 127 Central Intelligence Agency. See CIA Chad, genocide and oil exploration in, 107–61 Chahal v. United Kingdom, 25nn88–90, 50 Chang, Maria Hsia, 149n276 Charaf Eddine, Nabil, 211n78, 250n275 Charkaoui v. Canada, 39, 48 Charlesworth, Hilary, 205n45, 241n230, 243n240 Chechnya 2004 terrorist activities in, 77 Islami International Battalion, 81 number of terrorist incidents since 9/11, 80–81 relation to establisment of Muslim state in Arab heartland, 80 Chemerinsky, Edwin, 237n211 chemical regulation, 366–67 chemical weapons preventive measures, 85 psychological limitations to President’s security measures, 88–89 terrorist attacks using, 10 Chesney, Robert M., 17n58 Chevallor, Isabelle, 127–28n150 Chevron’s oil exploration in Sudan, 139–40 Chile, 210

Chimni, B.S., 247, 247n257 China fossil fuel use in, 383 genocide and oil exploration in Sudan, 107, 141–61 global energy consumption, 381, 384 wind power use, 387 China National Petroleum Company (CNPC) in Sudan, 107, 141–61 Chinkin, Christine, 205n45, 241n230, 243n240 Chomsky, Noam, 195n16, 200n24, 215n108 Choo, Andrew L.-T., 46n188 “chosen trauma,” 293 Christian Aid’s Sudan report, 118, 141 Christians in Sudan, 111 Churchill, Robin R., 351nn38–39, 371n137 Churchill, Ward, 229n183 Churchland, Paul, 266n25 CIA (Central Intelligence Agency) contractor David Passaro, 172, 189–91 detention of terrorism suspects, 32–33 interrogation manual, 227 profiler Jerrold Post, 293 renditions of terrorism suspects, 79 resistance to reforming national security, 90–91 Sudan’s oil exports and military spending, 143n238 circular nature of terrorism, 200 civil suits against terrorists and their sponsors, 103 Civil War, 68, 97–105 Clapham, Andrew, 214, 214nn101–2, 219n130 Clarke, Paul, 214n103 Clausewitz, Carl von, 107n1, 272n43 Clayton, Mark, 401n130 Clean Renewable Energy Bonds, 402 Cleveland, President Grover, 69n94 climate change, 362 Coakley, Thomas, 269 Cobb, Chis, 343n2 Cochrane, Bob, 227n168 Cockayne, James, 167n12, 174n51 Cody, Edward, 166n5 Cohen, Stanley, 231n185 Cohn, Marjorie, 218n121 Coke, Sir Edward, 57–58 Cold War Bush Administration initiatives distinguished from, 101–102 Islamic terrorist movement as result of failed policy, 248 Islamic terrorist threats distinguished, 80 Cole, David, 93n269 Cole, Eden, 184n100 Collins, Robert O., 114n39

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417

Index

Colombia Amnesty International report on, 16, 196nn15, 242n233 hostages’ rights, 240 private security companies in, 170–71, 179 colonial experience as shaping U.S. presidency, 62–63 Combatant Status Review Tribunals (CSRTs), 43–44n173, 43–45, 48 Committee Against Torture deportation of terrorism suspects, 35–36n136 Guantanamo Bay criticism, 33, 33n122 transfer of terrorism suspects to U.S. or other state for detention, 35, 35n134 Comprehensive Convention on International Terrorism, 215, 216–17, 216n111 conciliation as political choice, 309–10 Confederacy, 98–102 Conferences of the Parties (COP), 371 Confiscation Act, 100 Congress financial support for wind power production, 401–02 oversight of counterterrorism policy, 89–90, 92, 94–95 President’s national security strategy and, 103 timing of Presidential initiatives, 101 Connecticut’s energy siting board, 405 conscious rationales for suicide bombings, 300–01 Consejo Mexicano de Asuntos Internacionales, 358 consistency of wind resource, 396 conspiracy to commit genocide, 138, 139, 159 Zionist conspiracy, 292, 295 Constitutional Convention, 63–65 constitutional law American presidency, 55–71 Lacadaemonian constitution, 61 South Africa’s Bill of Rights, 324, 324n58, 331n98 South Africa’s recognition of customary law, 29–30, 316–17, 316n16, 317nn27, 325n61 Sudan, 113, 114 women’s rights in Iraqi and Afghan constitutions, 311–341 Contenta, Sandro, 39n147 Continental Congress, 62–63 Convention Against Mercenaries, 164n3 Convention Against Torture, 220–22, 228–29 Convention on the Elimination of Discrimination against Women (CEDAW), 324n124, 332n112 Cook, Helena, 20–21n72 Copelon, Rhoda, 229n180, 241n231

418

corporatization of privatized force, 178 Corwin, Edwin, 69n101 “cosmic war,” 263–64 Council of Europe (COE) and criticism of CIA program, 33, 34–35n131, 34nn128–129, 35n133 Council on Foreign Relations, 82, 357n70, 358, 358n78 counter-narrative strategies, 264–68 counterterrorism congressional oversight of policy, 89–90, 92, 94–95 FBI efforts, 95 human rights and, 193–255 National Counterterrorism Center, 96 Spain’s measures, 38n141, 54n215 stories’ role in, 257–83 covert operations by private security companies (PSCs), 166–67, 169 Cowell, Alan, 5n16, 32n119, 140n209 Craik, Neil, 343–375, 348n23, 370n133 Crawford, James, 200n26 Crenshaw, Martha, 261n13 Crewdson, John, 35n134 Cribb, Robert, 131n159 crimes against humanity in Sudan, 114, 157–58 criminal law Darfur case before International Criminal Court (ICC), 125–26 effectiveness in addressing genocidal conduct, 109–10, 126–27, 146–47 ethnic cleansing as genocide, 126 model for detaining terrorism suspects, 1–54 administrative detention compared, 53–54 disadvantages of, 16–20 Presidential strategy for national security, 103 and private military and security companies (PMSCs), 171–173, 175–76, 189–90 Crittenden, Michael R., 78n174 Croatia, use of private military and security companies (PMSCs) in, 168 Crook, John R., 32n120 Crosbie, William, 367n122 cruel, inhuman or degrading treatment of punishment (CIDTP), 220–23 cruelty as motivator of suicide bombers, 304–05 cultural identity formation, 279–82 cultural intelligence and narratives, 271 cultural law and women’s rights, 311–341 cultural motivations of suicide terrorists, 285–310 Curran, Ericka, 20, 311nn19, 317n28 custody of children under Shari’a law, 338–39

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customary law international humanitarian law, 174, 174n48 in South Africa, 315–17 and women’s rights, 311–341 Customary Marriages Act, 316–17 cyber network President’s national security strategy, 103 vulnerability to terrorist attacks, 82–83

D Dagne, Ted, 80, 118nn76–78, 140n212, 141nn225–26 Daley, Beth, 399n116 Daly, M.W., 111n14, 112n25, 113n30, 119n86, 120n91 Danelius, Hans, 221n137, 222n143 Danish, Kyle, 373n147 Danish Environmental Protection Agency, 354 Danner, Allison, 147n263 Dao, James, 186n103, 271n42 Darfur Darfur Peace Agreement (DPA), 150–51 genocide and oil exploration, 107–61 Report of the International Commission of Inquiry on Darfur, 108, 108nn4–5, 114n43, 122–23, 132–39, 142 2004 massacres in context of worldwide terrorism, 77 use of oil revenues, 142, 147–61 Daschle, Tom, 72 data mining, 86–87 Database of State Incentives for Renewable Energy (DSIRE), 405–09 Davis, Matthew, 198n22 Davis, Walter A., 304–05, 304–05nn85–89 Davis, Zadvydas v., 52n209 d’Aymery, Gilles, 292n33 de Mabior, John Garang, 112 de Waal, Alex, 113n28, 120n89, 134n172, 140n216, 150n281 DeCapua, Joe, 125n134 Declaration of Intent for the Conservation of North American Birds and their Habitat, 361 defense budget, U.S., 73, 101 Defense Science Board, 272 definitions genocide, 111 group rights, 321 mercenaries, 176–77, 186 relational rights, 313–14 renewable energy source, 385 story, 258–59

definitions (cont.) terrorism, 211–220 torture, 221–23 DeMeo, Edgar A., 395n100 democrats vs. theocrats, 250 Denbeaux, Joshua W., 35n134, 44–45n181 Denbeaux, Mark, 35n134, 44–45n181 Denmark’s wind power use, 387 Dennett, Daniel, 260n11 Department of Defense (DOD), 91 deployment, psychological, 303 deportation administrative model for detaining terrorism suspects, 23, 25, 27, 52–53 evasion of criminal process by, 35–36 as genocide, 127 security-based detention of terrorism suspects, 37–40 Derogy, Jacques, 146n262 Dershowitz, Alan, 224, 224nn153–55, 225n161, 229n183 Detainee Treatment Act of 2005, 43n171, 44n174 detaining terrorism suspects, 1–54 administrative model for, 1–54 armed conflict model for, 1–54 Bush Administration record, 93 cost-benefit summary of alternatives, 30–31 criminal model for, 1–54 Detainee Treatment Act of 2005, 43n171, 44n174 international standards for, 1–54, 103 Presidential strategy for standards for, 103 by private security companies (PSCs), 169 pure security-based detention, 27–30 secret detention centers, 93 Dew, Andrea J., 83n207 differentiated citizenship in relational rights culture, 314–15, 314n8 DiMento, Joseph, 343–375 Dingley, James, 310n98 Dinka, 111 mass starvation of, 112–13 systematic attacks on, 115–16, 140 Dinstein, Yoram, 21n74 Director of National Intelligence, 96 disaggregated state and environmental cooperation, 343–75 disarmament progress and use of private military and security companies (PMSCs), 183 divorce under Shari’a law, 336–38 Djazairouna, 251–52 Dobbs, Lou, 364n106 Dobbs, Michael, 39n147 Doi, Abdur Rahman I., 108, 332nn105, 337n145

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419

Index

domestic regulation of private military and security companies (PMSCs), 184–85 domestic violence and relational rights, 315, 319–20, 337 Donnan, Shawn, 18n63 Doswald-Beck, Louise, 14n49 Douglas, Major Karen L., 178n73 Dowell, Alan, 37n139 dower rights under Shari’a law, 336, 337 Downs, George, 373n147 Dreyfuss, Robert, 248n260 Drumbl, Mark, 147n263, 328n80 Drumbl, Mark A., 327n78 Dubai Ports World deal, 81 Dubinsky, Paul R., 150n278, 152n290 Dukakis, Michael, 224 Dunoff, Jeffrey L., 136n185 DynCorp, 172, 173, 182 Dynes, Michael, 143n235

E Eaton, Leslie, 228n173 Ebbert, Stephanie, 390n75 Ebbeson, Jonas, 372n141 Eckholm, Erik, 1n1, 3n7 Economic and Social Council (ECOSOC). See U.N. Economic and Social Council (ECOSOC) economics and genocide from oil exploration in Sudan, 107–61 and limits of Presidential maximum-security state, 87–88 wind energy subsidies and incentives, 407–09 wind energy’s benefits, 394–95 Efrati, Noga, 329n87 Eggen, Dan, 206n50 Egypt constitutional protection of religious law, 324n60 establisment of Muslim state in, 80 Red Sea town terrorist bombing, 79 Eide, Asbjorn, 237n209 Eigen, Michael, 296n50 Eisley, Matthew, 190n121 Ek, Carl, 347n71 El Fadl, Abou, 327n78 El Fadl, Khaled M. Abou, 327n78 El Manara, 194–97, 194n1, 224n157, 242, 254–55, 281 El Salvador’s use of geothermal power, 386 electoral college, 63 electricity from wind power, 379–411 Elliott, D.L., 389n67 el-Masri, Khaled, 4, 36n138

420

El-Sarraj, Eyad, 210n76, 310n98 Elsea, Jennifer, 167n10 Emancipation Proclamation, 101 emergencies declaration of nonwar emergencies, 70 detention during national, 15n51 President’s national security strategy, 103 protocols for terrorist attack response, 85 public health measures in U.S. post-9/11, 74 uniform radio frequency for workers, 94 enemy combatants, 76, 93, 223 energy conservation, 378 efficiency, 409–10 renewable wind power, 377–411 vulnerabilities to terrorist attacks, 82–83 Energy Information Administration (EIA), 382 Energy Working Group of SPP, 356n68, 360 English law commentators, 55–60 environmental protection President’s national security strategy, 103 renewable wind power, 377–411 and Security and Prosperity Partnership of North America (SPP), 343–75 enXco, 389n65 Erickson, W.P., 400n124 Esposito, John L., 334n114 Eteraz, Ali, 247n258 ethanol production, 386 Ethiopia Dinka refugees, 113 use of private military and security companies (PMSCs) in, 168 ethnic cleansing as genocide, 126 and oil exploration in Sudan, 107–61 Europe electricity from wind power, 380, 380n16 renewable energy targets, 404 siting constraints for wind farms, 387 wind power use, 387 See also specific countries European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 15n51, 21–22n76, 21nn73, 47n191, 75 administrative detention model, 24–30 arbitrariness standards for detention of terrorism suspects, 21–22 European Court of Human Rights, 23n79, 24–30, 36n137, 213 security threat determinations by, 50 evidence for criminal prosecution of terrorist suspects, 19–20, 46–47

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Executive Outcomes, 168, 172, 179 expert legitimacy, 347, 370

F Fadlallah, Grand Ayatollah Muhammad Hussein, 273, 278, 280 Falk, Richard, 206n52 Fallah, Katherine, 173n46, 175n54, 176n61 famine in Sudan, 115 Farberow, Normal L., 297n56 Farrior, Stephanie, 204n41 Farrow, Mia, 142n228 Farrow, Ronan, 142n228 Fauconnier, Giles, 259, 260n9, 266n26 Fava, Giovanni Cladio, 33–34n126 Favretsaada, Jeanne, 250n276 Federal Bureau of Investigation (FBI), 90, 95 Federal Energy Regulatory Commission (FERC), 403 federal Renewable Portfolio Standard (RPS), 404 Federalist essays, 64–65 Fein, Helen, 130n154 Ferguson, Niall, 122n111 Fidler, Stephen, 10n32 financial regulators’ cooperation, 344–45 financing renewable energy, 407–11 financing terrorism Bush Administration action on, 93, 95, 96, 103 International Convention for the Suppression of the Financing of Terrorism, 50n203, 212n83 Presidential strategy for national security, 103 U.S. legislation, 73 first responders protocols for terrorist attack response, 85 uniform radio frequency for, 94 Fischer, Horst, 12n41 Fish, Robert, 173n41 fisher, Louis, 93n266 Fitzpatrick, Joan, 3n12, 198–99n22, 229n178 Fitzpatrick, Stephen, 18n63 Fleishman, Jeffrey, 38nn146, 39n148 Fletcher, Laurel E., 147n263 Flynn, Stephen, 82–86nn200–228 Food and Agriculture Group, 362n98 food contracts with private military and security companies (PMSCs), 167 food supply vulnerabilities, 82–85 Foot, Richard, 365n113 Foreign Intelligence Surveillance Act (FISA), 79 Fort Sumter, 98–99 Fortescue, Sir John, 57–58 fossil fuels, 378–79, 383, 384, 393–94 Foucault, Michel, 210n71 foundational myths, 262

Fouquet, Helene, 5n16 framing process and organizational change, 273–74 France detention of terrorism suspects, 38–39, 38nn142, 54n215, 145 use of private military and security companies (PMSCs), 167 Franck, Thomas, 248n263 Frazer, Jendayi E., 119n85 Freedman, Jacob, 78n174 “freedom fighters,” 213 freedom of movement, 335 Fremont, General John C., 100 Freytag, Gustav, 258 Freytag Triangle, 258–59 frist responders uniform radio frequency for emergency workers, 94 Frye, Ellen L., 166n7 Fukuyama, Francis, 101–103, 102nn341–343, 103n348 Fuller, Jack, 104n358 Fur people, 111, 120, 123, 150–51

G Gagne, Christopher, 41n159 Galic, Prosecutor v., 214, 214n99 Garang, John, 266 Garnett, Richard, 214n103 Garreau, Joel, 395n103 Gasch, Robert, 387n52 Gaston, E.L., 163–192 Gates, Bismullah v., 44, 48 Gatton, Adrian, 143n241 Gay, Lance, 132n164 gay rights and surrogate consciousness, 276 Gaza, 77–78 Gaza Strip, 280 Geifman, Anna, 307n96 Gellman, Barton, 226n164 generation disclosure rules, 406–07 Geneva Conventions applicability to private military and security companies (PMSCs), 173–74, 173n47, 175, 177nn65–67, 180, 180nn80–82, 187 armed conflict law, 10–14 enemy combatant designation of Afghan war detainees, 76 international humanitarian law’s applicability, 240n226 “outrages upon human dignity, 222 Genocide Convention applicability to Darfur, 126–27

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421

Index

Geneva Conventions (cont.) applicability to Sudan, 109, 109n6, 111, 111n19, 126–27, 136, 160–61 genocide in Sudan, 107–61 admissions by Sudanese officials regarding, 133–35 comparing other cases of genocide, 127–39 criminal law’s effectiveness in addressing genocidal, 109–10, 126–27, 146–47 in Darfur region, 119–39 historical context, 110–11 international community’s failure to respond, 121–26 oil exploration’s role in, 139–46 in Southern Sudan, 111–19 geothermal power, 383, 385, 386 Gerhart, Gail M., 115n49 Germany extra-criminal detention system, 33–34n126 wind power use, 386, 387 Gettlean, Jeffrey, 141n225 Gettleman, Jeffrey, 124n128 Gettysburg, 100 Ghafour, Hamida, 172n40 Ghana’s use of private military and security companies (PMSCs) in, 168 Gibbs, Nancy, 292n33 Gillard, Emanuela-Chiara, 176–77n64 Gilligan, James, 289n26 Gipe, Paul, 390n71 Glanz, James, 38, 164n1, 172nn35 Glennon, Michael, 252n286 global energy, 381–83 “Global Jihad,” 79–83 “global war on terror,” 272 globalization and private security industry growth, 166 Goldberg, Marc L., 135n176 Goldsmith, Jack, 4n15, 17n58, 49n200 Goldstein, Bohunka, 52, 174nn48–50, 175n53, 176nn59–60, 178n70 Goldstone, Richard, 152n292 Gonzales, Alberto, 76 Goode, Virgil, 364n106 Goodman, Amy, 165n4 Goodman, Ryan, 49n198, 188n110 GPS chip technology, 86 Graesser, Arthur C., 260n11 Graham, David E., 7n21 Grant, Ruth W., 353n50 Great Britain number of terrorist incidents since 9/11, 80–81 See also United Kingdom Great Lakes locations for wind power sites, 397

422

Greater Nile Petroleum Operation Co. of Sudan (GNPC), 141 Greek genocide compared to Darfur, 128–33 Greek history, 61 green power policies, 407 Greenaway, Norma, 365n113 Gresh, Alain, 153n302 Grobman, Alex, 129n151 Grono, Nick, 152n293 Gross, Oren, 8n23, 17n57, 18n59, 24n83, 224–25, 224n156, 225nn159–60, 228n175 Grostein, James S., 303n84 group psychology and suicide bombing, 290–95 group rights and relational rights, 321–23 Guantanamo Bay Bush Administration record, 93 detention standards, 1, 32–33 pure security-based detention, 42–45 suicide attempt rate, 224 guardians’ power over marriage decisions, 332–33 Gunaratna, Rohan, 310n98 Gutmann, Amy, 372n144 Guttenplan, D. D., 129n151

H Haas, Peter, 355n61 habeas corpus suspension, 99, 100 Haddad, Yvonne Yazbeck, 334n114 Hafez, Mohammed M., 285n2, 286–88nn3–16, 286–89, 299, 299n66, 300nn67–70 Hague Convention’s applicability to private military and security companies (PMSCs), 173n47 Haiti, private military and security companies (PMSCs) in, 167n12 Hajjar, Lisa, 229, 230n181, 334n114, 337n136 Hakimi, Monica, 1–54, 32n116, 33n123 Hale, Matthew, 57–59, 59nn23–24 Halliburton, 167 Hallidan, Denis J., 153n303, 154nn305, 306 Hamas 2002 attacks by, 74 al-Manar broadcasts and, 281 asymmetrical resources as rationale for suicide bombings, 287–88 majority in 2006 Palestinian parliamentary election, 79 Hamblett, Mark, 110n10 Hamdi v. Rumsfeld, 42–43n169 Hamilton, Alexander, 61, 63–65 Hampson, Francoise, 176n61 Hanafi school of Sunni thought, 329 Handl, Günther, 373n146 Hannum, Hurst, 136n185

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Haroun, Ahmed, 133 Harper, Prime Minister Stephen, 343 Harrison, Mark, 310n98 Harrison, Selig S., 9n29 Hart, Michael, 359–60n84, 360n89, 363n104, 374n149 Harvey, Fiona, 397n106 Hasan, Syed Shoaib, 210n76 Hathaway, Oona A., 188n110 Hau, Erich, 387n52 Haughney, Christine, 155n310 Hawk, David, 136n185 Hayes, President Rutherford B., 69n94 Healey, Teresa, 364n106 Hebrew history, 60 Heckman, Gerald, 26n96 Heffernan, John, 124n129 Hélie, Anissa, 242n232 Hélie-Lucas, Merieme, 245, 245n247 Hemingway, Thomas, 2n6 Henckaerts, Jean-Marie, 14n49 Heraclides, Alexis, 27, 112nn21–23 Herndon, William, 98 Herodotus, 61 heroism of suicide bombers, 301–02 Herring, Eric, 154n306 Hersch, Seymour, 222n145 Herzegovina’s transfer of terrorism suspects to U.S. or other state for detention, 35n134 Hessini, Leila, 195n9 heuristics, 264 Heymann, Philip b., 196n13 Hickley, Matthew, 40n158 Hidayat, Taufan, 18n63 Higgins, Judge Rosalyn, 211–12, 212n79, 213n94, 219, 222, 222n147 Hilal, Sheik Musa, 134 Hill, Felicity, 242n236 Hite, Katherine, 210n74 Hizballah, organizational change, 273–83 Hizb-I Islamic Gulbuddin jihadist group, 81 Hoagland, Jim, 19n65 Hodge, Nathan, 185n97 Hoff, Samuel, 143n243 Hoffman, Bruce, 277n55 Hoffman, Dr. Bruce, 10n32 Hoffman, Stanley, 97 Hogan, Patrick, 259 Hoge, Warren, 33n125, 125n139, 126n140, 142n234 Holocaust, 129, 133, 136 reparations to victims of, 149–50, 151–52, 155–56

holy war Nuba people, 115 in Sudan, 113 See also jihad Holyoak, Keith, 259–60n7 Homans, Peter, 301n71 Home Secretary, A. v., 40, 41, 52n211, 53n212 homeland security department of, 73, 78, 83–84, 93, 101 financing, 94 9/11 Public Discourse Project, 93–96 office of, 72 President’s efforts to create maximum-security state, 83–93 Homer’s Odyssey, 200n27 Hooglund, Eric, 110n13 Hoover, President, 69 Horne, Marc, 399n117 Horney, Karen, 301n73 Horowitz, David, 247n258 hospitals’ protocols for terrorist attack response, 85 Howe, Peter J., 399n116 Howland, Courtney, 249n266 Hroub, Khaled, 217, 217n118 Hsu, Shi-Ling, 348n23 Huddy, Leonie, 275n50, 276n51 human dignity from perspectives of all, 206 Human Rights First, 218, 279 human rights law balance in protecting from terrorism and torture, 193–255 detention of terrorism suspects and, 7–9, 14–16 enforcement against private military and security companies (PMSCs), 163–192 private security contractors’ involvement in violations of, 166, 178 and relational rights embedded in Iraqi and Afghan constitutions, 332–41 terrorism as violation of, 233–39 Human Rights Watch Afghan counterterrorism operations, 206n51 compensation fund for Darfur victims, 152, 152n295 counter-terrorism’s threat to human rights values, 236, 236nn206–7 Darfur, 114n44, 138n198, 142nn229–233, 144n247, 152, 152n295 diplomatic assurances against mistreatment of suspects, 35n135 fundamentalist terrorism, 196n15 Spain’s detention of terrorism suspects, 38n141 Sudan, 58–60, 113n38, 114n44, 116, 116nn56 “terrorism” term use, 218

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Human Rights Watch (cont.) torture absolutely prohibited, 220 women’s rights in Egypt, 328n79 Human Security Center, 197n20 Hume, David, 61 humiliation as motivator of suicide bombers, 304–06, 309–10 Huntington, Samuel P., 260n8 Hurley, Adele, 364n107 Hurricane Katrina, 78, 95 Hurvich. Marvin, 299n64 husband and wife and relational right, 311–341 Hussein, Saddam, 74, 102, 147 Hutus’ foundational myths, 265 hydropower, 379, 382, 383, 385–86

I Ibbitson, John, 343n3 Ibrahim, Youssef, 194n7 Iceland’s use of geothermal power, 386 ID cards, 86, 95 identity formation, 279–82 Ignatius, David, 33–34n126 immigration asylum laws and human rights law, 251 predicate for detention of terrorism suspects, 23, 25, 27, 37–40, 52–53 Presidential strategy for national security, 103 income tax incentives for renewable energy production, 408–09 India Mumbai train system attacked by Islamic terrorists, 79 number of terrorist incidents since 9/11, 80–81 ratification reservation of International Covenant on Civil and Political Rights (ICCPR), 28–29, 28n102, 29n105 security-based detention of terrorism suspects, 40–41, 41n159, 50 “indigenous” populations defined, 107n2 indoctrination of suicide bombers, 293–94 Indonesia genocide in, 131 Jemaah Islamiyah jihadist group, 81 number of terrorist incidents since 9/11, 80–81 transfer of terrorism suspects to U.S. or other state for detention, 35n134 use of private military and security companies (PMSCs) in, 168 “informed divergence” of network members, 355 infrastructure President’s national security strategy, 103 vulnerabilities to terrorist attacks, 82–83

424

institutional implications for counterterrorism narratives, 271–72 insurance for terror claims, 78 intelligence functions by private security companies (PSCs), 169–70 Intelligence Reform Act, 91–93 intelligence systems centralizing, 96 President’s national security strategy and, 103 resistance to Presidential reform, 90–92 U.S. reorganization, 76, 77 use of private security companies (PSCs), 169–70 See also CIA; Federal Bureau of Investigation; homeland security interconnection rules for electrical generation sources, 407 International Atomic Energy Agency (IAEA), 75 International Commission of Jurists administrative detention and counterterrorism, 20–21n72 Berlin Declaration, 236, 236n205 “terrorism” term use, 218 International Committee of the Red Cross, 12n39, 13nn45–46, 14n48, 187n109 International Convention for the Suppression of the Financing of Terrorism, 50n203, 212n83 International Council on Human Rights Policy, 197n18 International Court of Justice Judge Rosalyn Higgins, 211–12, 212n79, 213n94, 219, 222, 222n147 reparations, 147–48 International Covenant on Civil and Political Rights (ICCPR) human rights obligations as to detentions, 15n51, 21nn73, 22n77, 47n191, 75 reparations, 148 respecting and ensuring human rights in contexts of terrorism and torture, 201–6 International Criminal Court (ICC) and Darfur case, 125–26 International Energy Agency (IEA) and global energy consumption, 381, 384 International Federation for Human Rights (FIDH) and use of term “terrorism,” 218 international humanitarian law (IHL), 240 International League for Human Rights, 224n152 International Monetary Fund’s austerity program in Sudan, 112 International Network for Environmental Compliance and Enforcement (INECE), 351 International Organization of Securities Commissioners, 351

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international standards for detaining terrorism suspects, 1–54 interrogation Bush Administration tactics, 93 by private military and security companies (PMSCs), 172 by private security companies (PSCs), 169 interstate oil and natural gas pipeline security in U.S. post-9/11, 74, 82–83 intestate succession in South Africa, 316–17 Iontcheva, Jenia, 147n263 Iowa’s wind power capacity, 391–92 Ip, John, 53n213 Iran and Hizballah, 277–78 Islamic terrorist threats distinguished, 80 nuclear activities in, 75, 79 Pakistani official’s sale of nuclear secrets to, 78 presidential election in 2005, 78 state-initiated attacks by, 71 See also Persia Iraq Al-Zawahiri jihadist group, 81 Ansar Al-Islam jihadist group, 81 authorization of U.S. military force against, 73 budgets for U.S. war in, 75 detention of enemy combatants in, 93 establisment of Muslim state in, 80 illegal invasion of, 248 mass trampling of Shiite pilgrims, 238 private military and security company use in, 163–192 2004 activities in, 76–78 2005 activities in, 78 2006 activities in, 78–79 U.N. Compensation Commission, 152–53 war destruction in Baghdad, 74 women’s rights in Iraqi constitution, 311–341 Ishikida, Miki Y., 146n262 Islam cartoons of Prophet Muhammad, 79, 250 constitutional protections in Iraqi and Afghan constitutions, 311, 325–341 imposition of Islamic law on Christian areas of Sudan, 112 religious aspects of suicide terrorism, 285–310 Women Living Under Muslim Laws, 243 Islami International Battalion, 81 Islamic fundamentalists stories’ power, 259, 267 terrorism of, 244–52 Wahhabis, 264 Islamic militants, Saudi Arabia’s experience with, 77

Islamic terrorists Egyptian Red Sea resort town attacks, 79 “Global Jihad,” 79–83 Mumbai train system attacks by, 79 support level among Muslims, 81 World Under Fire map of attacks by, 7n22 Israel asymmetrical resources as rationale for suicide bombings, 287–88 detention of “bargaining chips,” 48 and Hizballah, 280 human rights issues in Palestinian conflict, 250 mythmaking in, 265 ratification of International Covenant on Civil and Political Rights (ICCPR), 28–30, 28n102, 29nn106, 108–109 security-based detention of terrorism suspects, 40–41, 41n159, 50 technological innovations to prevent terrorist attacks, 86 2002 attacks on, 74 2003 terrorist attacks in, 75 2004 activities in conflict with Palestine, 77–78 unresolved Palestinian conflict as contributing factor in rise of Islamic fundamentalist armed groups, 248 Italy, Saadi v., 36n137 Italy’s support of CIA detentions, 33–34n126 Ivory Coast’s use of private military and security companies (PMSCs) in, 168 Iyob, Ruth, 144n244

J Jacobson, Edith, 305n90 Jamail, Dahr, 329n88 Janjaweed in Sudan, 77, 120, 122–25, 133–36, 138–39, 150 Jansen, Godfrey, 248n262 Jansen, Yakaré -Oulé, 335n123 Japan Aum Shinrikyo cult, 290, 291n28 kamikaze self-sacrifice, 297–98, 298n63 kidnapping by North Korea, 74 photovoltaic power use, 386 Sudan trading partner, 144 Jefferson, Thomas, 60n36, 61, 66–68, 98 Jemaah Islamiyah jihadist group, 81 Jensen, Viggo V., 297n56 Jews Masada Jews, 305, 305n91 misinformation about as motivator of suicide bombing, 294–95 See also holocaust; Israel

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425

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jigsaw puzzle model for homeland security, 83–93 jihad “Global Jihad,” 79–83 international standards for detaining terrorism suspects, 1–54 Palestine martyrs’ treatment, 300 Sudanese constitution, 37, 113, 113nn36 “Jihad versus McWorld,” 260 Jinks, Derek, 8n23, 28n102, 49n198, 188n110 Johnson, Lyndon, 69 Johnson, Mark, 259–60n7 Johnston, David, 1n1, 3n7, 200–201n31 Johnston, Philip, 42n164 Joinet, Louis, 20–21n72 Joint Public Advisory Committee, 372 Jones, Sidney, 232n188, 249n270 Jong-il, Kim, 75 Joseph, Suad, 10, 313–14, 313nn3–6, 314nn9, 320, 320nn39–43, 340 Jouhana, Dina, 1n3 Juarrero, Alicia, 260n11 judges in Sudan constitution, 114 judicial review administrative model for detaining terrorism suspects, 46–48 of detention, 51–52 Guantanamo Bay detainees, 76 Presidential power in national security matters, 92–93 Juergensmeyer, Mark, 263–64, 263n18, 268, 310n98 Julian, Peter, 367n119 Justinian Code, 58

K Kahneman, Daniel, 264n20 Kakar, Mohammad Hassan, 127–28n150 Kalayjian, Ani, 292n32 Kalshoven, Frits, 175n54 kamikaze self-sacrifice, 297–98, 298n63 Kansas and wind power, 391–92, 405 Kaplan, Jeffrey A., 329n84 Kaplan, Robert D., 83n207 Kapur, Ratna, 243n240 Kapuscinski, Ryszard, 265n22 Karzai, Hamid, 170, 173 Katel, Peter, 80–81nn187–197 Katyal, Neal, 4n15 Kelleher, Kevin, 391n80 Kellogg, Brown & Root, 167, 167n12 Kennedy, Paul, 93n268 Kenya AK-47 availability, 82

426

Kenya (cont.) evidence in terrorism cases, 54n215 geothermal power, 386 number of terrorist incidents since 9/11, 80–81 Keohane, Robert, 347n19, 350n32, 353n50 Kernberg, Otto F., 290n27, 291nn29–31, 294n45 Kernger, Otto F., 290n27 Kerr, Al, 323nn55–56 Kessler, Glenn, 32n120 Khalaf, Roula, 10n32 Kheddar, Cherifa, 251, 252n284 Khul divorce, 336–38 kidnappings by Hizballah, 277 in Sudan, 117–18 Kiffner, John, 292n33 Kim, Suzanne A., 35, 318n31, 319nn32 King George III, 62–63 Kingsley, Jeremy, 20n71 Kiser, Stephen D., 260n11 Klein, Pierre, 349n27 Knollenberg, Congressman Joe, 218 Knox, John, 350n36 Koh, Harold Hongju, 188n110 Kokinov, Boicho, 259–60n7 Kosovo genocide, 131, 132 Koufa, Kalliopi, 236n203, 237n209 Krahmann, Elke, 167n12 Krauthammer, Charles, 226n165 Krayem, Nayef, 281 Kressel, N.J., 292n34, 292n46 Kristof, Nicholas D., 116n61, 118n79, 134n175, 138n195 Kuckes, Niki, 17n56, 47n190 Kurzwel, Ray, 86n230, 87n234 Kuwait compensation commission, 152–53 private military and security companies (PMSCs) in, 167n12 Kuwait Petroleum Corporation, 153 Kwakwa, Edward, 175n54, 176n62 Kymlicka, Will, 48, 314n8, 321nn44, 322n52

L La Barre, Weston, 291nn29–31 Lacadaemonian constitution, 61 Lakoff, George, 259–60n7 Landler, Mark, 19n68, 33–34n126, 34–35n132, 36n138 Lashkar-e-Jhangvi jihadist group, 81 Lashkar-e-Tayibba jihadist group, 81 law enforcement agencies’ protocols for terrorist attack response, 84

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Le Vine, Victor T., 144n244 League of Arab States, 216 Leahy, Senator Patrick J., 72 Leaning, Jennifer, 120n93 lease payments for wind farms, 395 Lebanon constitutional protection of religious law, 324n60 former prime minister killed in car bombing, 78 Hizballah and organizational change, 273–83 relational rights in, 313, 320 sanctions against, 75 Leddy, Nicholas, 124n126 LeDoux, Joseph, 294n44 Lee, Henry, 141n222, 145n255 legislative branches excluded from Security and Prosperity Partnership of North America (SPP), 345–46, 365 Lehman, Mel, 154n306 Leigh, David, 143n241 Lemkin, Raphael, 109, 111–12n20, 133n168 Lesch, Ann Mosely, 116n54 Levant, 80 Levitt, Jeremy I., 123n122 Lewis, Anthony, 130n155, 292n33 Lewis, Neil A., 4n13 libertarian mentality as psychological limitation on President’s security measures, 89 Libya, Pakistani official’s sale of nuclear secrets to, 78 Liechty, Daniel, 299n64 life cycles of terrorist organizations, 260–62 Lifton, Robert Jay, 291n28, 299n64 Lincoln, Abraham, 68–69, 97–105 Lindsey, Tim, 20n71 Linklater, Andro, 364n106 Linzer, Dafna, 32n120 Liptiak, Adam, 228n173 Liu, Melinda, 149n276 Livingston, William, 63 Loeb, Vernon, 19n65 Loenen, Titia, 323nn55–56 logistical support by private supply firms, 167 London terrorist bombing in 2005, 78 Lord, Carnes, 104n353 Louisiana Purchase, 66, 67 Lowe, Chris, 265n22 Luban, David, 222n148, 229n177 Ludsin, Hallie, 15, 311–341, 316nn14 Lynch, Colum, 108n3, 145n258, 154n307

M Macartney, Jane, 108n3 MacDonald, Heather, 226, 226n166

Macedonia’s transfer of terrorism suspects to U.S. or other state for detention, 35n134 Macewan, Elias J., 258n2 Machiavelli, 60, 60n36 Macinnis, Laura, 144n244 MacKinnon, Catherine, 138nn195, 197, 241n228, 243n240 Macmichael, Harold Alfred, 111n15 MacWilliam, Ian, 206n51 Madison, James, 63, 66, 98 Madrid railway station bombing, 77, 246 Malaysia Jemaah Islamiyah jihadist group, 81 security-based detention of terrorism suspects, 41, 41n160 Mälksoo, Lauri, 127n147 Maltsberger, John T., 297n56 Mann, Thomas E., 90n250 Mansbridge, Jane, 275n48 Mansfield, Peter, 249n271 Manufactured Goods and Sectoral and Regional Competitiveness Working Group, 360 Manufactured Goods Working Group, 362n98 Marcus, Jonathan, 211n78 Margulies, Joseph P., 93n266 Mariam, Mengiustu Haile, 127 Mariner, Joanne, 41n159 Markell, David, 350n36, 372n140 Marks, Susan, 201–2n34 Marr, Phebe, 94–95, 330n92, 330nn92 marriage rights as relational rights under Iraqi and Afghan constitutions, 332–33 Marsden, Eric, 113n29 Martin, Prime Minister, 356n65 Martinez, Jenny, 147n263 Marty, Martin, 245n249 Masaai culture, 267 Masalit tribe, 116, 151 mass murder oil exploration in Sudan, 107–61 See also genocide Matheson, Michael, 184n99 Max Planck Institution, 329, 329n86 maximum-security state, 83–93 Mayer, Jane, 227n168 Mazetti, Mark, 32n119 Mazzetti, Mark, 3n8 McAdam, Doug, 274n44 McAlea, Dominic D., 18n60 McClain, Linda C., 320n38, 333n113 McCoy, Alfred, 221n138, 226n166 McDonald, Avril, 3n12 McDonald, Forrest, 56–70nn9–105, 56–108

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427

Index

McDonough, Challis, 125n139 McDoom, Opheera, 126n141 McDougal, Myres, 229, 229n182 McKinley, James C. Jr., 115n49 McKinley, President, 69 McMahan, Jeff, 208n59 McManus, Barbara, 258n3 McQuaig, Linda, 346–47n17 McWilliams, Nancy, 296n50 media attention on private military and security companies (PMSCs), 179, 191 Meetings of the Parties (MOP), 371 Megargee, Geoffrey P., 127n150 Mekhennet, Souad, 34–35n132, 245n246 Mello, Sergio Vieira de, 74 mental illness civil commitment of mentally ill persons, 51n208 and suicide bombings, 289–90, 293–96 merceranism. See private military and security companies (PMSC) Meron, Theodor, 15n50, 147n263 metaphors’ role in human psychology, 259–60, 266 Mexico and Security and Prosperity Partnership of North America (SPP), 343–75 Mguema, Francisco Macias, 127 Michaels, Jon D., 77, 179nn76, 180nn78–79, 181n83 Middle East Watch, 127–28n150 military bases guarded by private security forces, 166 Military Commissions Act of 2006, 43n171 military downsizing and growth of private military and security options, 166 Military Professional Resources Incorporated (MPRI), 180 military sales. See weapons sales and purchases military support by private security companies. See private military and security companies (PMSCs) Miller, Bill, 155n310 Miller, Judith, 26, 112nn24, 153nn300, 303 Miller, Lisa, 211n78 Miller, Russell, 348n23 Miller, Teresa A., 39n147 Minerals Management Service, 397 Minnesota’s wind power capacity, 391–92 Mishima, Yukio, 298, 298n62 Missouri’s secession threat, 100 Mobbs, Phillip M., 140n213, 141n219 Moghadam, Valentine, 243, 243nn238–39, 249n267 Moghissi, Haideh, 244n242 Mohammad, Khalid Shaikh, 1–3 Moir, Lindsay, 9n27 Mollica, Marcello, 310n98 money laundering prohibitions, 93

428

Montejo, Victor D., 149n277 Morocco number of terrorist incidents since 9/11, 80–81 Salifiya Jihadiya jihadist group, 81 Morris, Aldeon, 274n47 Morris, Gouverneur, 63 Morris, Robert, 63 Moses-Hruschovski, Rena, 303, 303n90 Moss, Michael, 245n246 Mourning, Paul W., 174n52 Movahedi, Siamak, 300n67, 301, 301n76 Mozambique, 82 Muhammad as foundational mythic figure of Islam, 263 Mukasey, Attorney General Michael, 222–23n148 Mukasey, Michael, 4n15 Mulrine, Thomas V., 46n187 Munro, D.H., 231–32, 232n187 Murphy, John F., 152n290 Murphy, Sean O., 8n25, 11n36 Musial, Walt, 75, 390nn73, 397n106 mutual recognition agreements, 352, 368 myth creation and suicide bombing, 292–93, 300–301, 310 and war on terrorism, 257–83

N Nabarro, David, 124n128 NAFTA, 357 “NAFTA superhighway,” 364 Nagel, W.H., 200, 200n23 Nagi, John A., 83n207 Nakamura, Glenn V., 260n11 Namibia’s constitutional status of customary law, 325n61 Nandai, 298, 298n57 nanotechnology use to prevent terrorist attacks, 87 narrative importance of, 272 role in war on terrorism, 257–83 strategic principles, 270–71 surrogate consciousness, 274–76 typology, 262–64 of victimization, 306 Nash, Jennifer c., 319n32–33 Nasir, Jamal J. on women’s rights under Muslim law, 332nn103–107, 332nn109–10, 334nn115–16, 334nn118–23, 335n129, 336nn131–35, 337nn137–44, 337nn146–48, 338nn149–54, 339nn155–58 Nasrallah, Sheikh Hussein, 273–83, 278 Nathan, John, 298n58

TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008

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National Commission on Terrorist Attacks upon the U. S., 18n61 National Counterterrorism Center, 96 national ID cards to prevent terrorist attacks, 86 National Renewable Energy Laboratory, 390 National Security Agency program of warrantless surveillance of terrorism suspects, 78–79 National Security Decision Directives, 69–70 national security strategy and narrative ‘s role in, 257–83 NATO countries’ use of private security companies (PSCs), 167, 169–70 Natsios, Andrew, 115n45 Natural Resources Defense Council, 387n49 Nazzal, Muhammad, 287 N’diaye, Bacre, 239 Nebehay, Stephanie, 154n307 Neely, Bill, 208n62 Neff, Stephen C., 9n29 Nesbitt, Katherine, 41n161 net metering laws, 408 Netherlands, Ramzy v., 36n137 networks to coordinate transnational activity, 344, 347–56, 370–75 Nevins, Joseph, 149n277 New Mexico’s wind power capacity, 391–92 New York Review of Books, 97 New York’s wind power capacity, 391–92 Newton, Michael A., 154n304 Nguesso, Denis Sassou, 124n127 Nicolaidis, Kalypso, 344n9, 352n44 Nieuwoudt, Stephanie, 125n135 Nigeria, private security companies in, 170 Nikiforuk, Andrew, 364n107 Niksch, Larry A., 149n276 9/11 al Qaeda attacks on U.S., 70–71 U.S. national security after, 71–83 9/11 Commission limitations of, 90 Public Discourse Project as unofficial successor to, 93 report of, 76–77 timing of creation of, 101 9/11 Public Discourse Project, 93–96nn270–299 Nixon, Richard, 69 noise from rotating wind turbines, 399 non-battlefield detainees, international standards for, 1–54 non-state actors human rights violations by, 234–41, 253 private military security companies’ status, 163–92 violent non-state actors (VNSA), 261

Nordhaus, William, 378n6 North American Agreement on Environmental Cooperation, 350, 361, 361n94, 371 North American Bird Conservation Initiative, 361, 361n95 North American Commission for Environmental Cooperation (NACEC), 348n25, 350–51, 354, 372 North American Competitiveness Council (NACC), 347n69, 356, 358–59, 358n79, 365, 372n142 North American Electric Reliability Council, 361 North American Energy Working Group, 360, 360n85, 361 North American Steel Strategy, 360 North American Steel Trade Committee, 360 North Korea Islamic terrorist threats distinguished, 80 nuclear bomb development, 74, 75 Pakistani official’s sale of nuclear secrets to, 78 state-initiated attacks by, 71 North Sea location for wind farms, 387 Nowak, Manfred, 35–36n136, 200n29, 201, 201n37, 204nn41–43, 205n46 Nuba people, 115–18 nuclear weapons availability, 82–83 and Iran, 75, 79 Pakistan officials sale of nuclear secrets, 78 port security and, 81–82 psychological limitations to President’s security measures, 88–89 terrorist attacks using, 10 Nuremberg tribunal, 111 Nye, Joseph, 347n19, 350n32

O obedience duty of wives under Shari’a law, 333–35 O’Brien, Kevin, 171n30 O’Brien, Natalie, 18n63 Observe-Orient-Decide-Act (OODA), 270 occupying military presence as prime motive for suicidal terrorism, 288 O’Connell, Mary Ellen, 8n24, 223n160 Oette, Lutz, 238n212 offshore sitings for wind power sites, 397 Ohnuki-Tierney, Emoko, 298n63 oil exploration and genocide in Sudan, 107–61 oil pipeline destruction in Iraq war, 74 Okin, Susan Moller, 318n31, 321n47 Oklahoma’s wind power capacity, 391–92 Olivier, Nij, 22–23, 25, 311n19, 316nn19, 317nn24 Omar, Abu, 1, 35n134, 36–37n138

TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008

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Index

O’Neill, William G., 233–34n193, 233n193, 249n273 ONGC Videsh, 160 Operation Iraqi Freedom, 55 operational support by private firms, 167 oppositional consciousness, 274–75 oppression as motivator of suicide bombers, 304–05 Oregon energy siting boards, 405 wind power capacity, 391–92 Organization of the Islamic Conference (OIC), 216–17 Ornstein, Norman J., 90n250 Osiatynski, Wiktor, 324n59 Osiel, Mark, 147n263 Otterman, Susan, 328n83 Ottoman Empire’s genocide, 129 Outer Continental Shelf and for wind farm location, 387 Owen, Richard, 1n2, 36–37n138 Oxford Companion to American Law, 70n106 Ozanne, Julian, 113n31

P Paddock, Richard C., 1n3, 18n62, 19n64 Padilla, Rumsfeld v., 42–43n169 Pakistan Lashkar-e-Jhangvi jihadist group, 81 Lashkar-e-Tayibba jihadist group, 81 9/11 Public Discourse report, 95 nuclear secret sales, 78 number of terrorist incidents since 9/11, 80 Palestine asymmetrical resources as rationale for suicide bombings, 287–88 Hizballah’s organizational change and, 273–83 human rights issues in Israeli conflict, 250 martyrs’ treatment, 300 psychological motivators of suicide bombings, 302–05 2004 activities in conflict with Israel, 77–78 unresolved Israeli conflict as contributing factor in rise of Islamic fundamentalist armed groups, 248 Palti, Leslie, 201n33 pandemic influenza, 359 Pape, Robert A., 82, 288, 288nn17–23, 299, 302–03, 302n78, 303nn81, 310n97 Papua New Guina’s use of private military and security companies (PMSCs), 168 paranoid anxiety of suicide bombers, 293–96 Paris, Roland, 344n4, 360n91, 366n115 Parker, Ned, 173n43, 181n87 Parker, R.A.C., 127–28n150

430

Parrish, Austen, 348n23 Partsch, Karl Josef, 9n28, 14–15n50, 49n201, 50n202 Pasha, Talaat, 147 Pasqualetti, Martin J., 395n98 Passaro, David, 172, 189–91 Passaro, United States v., 189, 189n113 passive presidency, 64 Patriot Act, 73, 90, 101 Paul, Ron, 364n108 Paust, Jordan J., 7n21, 8n24 peacemaking prospects with use of private military and security companies (PMSCs), 180 Peel, Jacqueline, 371n135 Pejic, Jelena, 15n52, 49n197 Pelton, Robert Young, 17, 23, 168nn14, 169nn21, 170n27 Pentland, Ralph, 364n107 Percy, Sarah, 79, 176n61, 180nn78, 184n100, 188n111, 189n112 Perlez, Jane, 37n139, 115n49 Peronas oil exploration in Sudan, 107–61 Perrin, Banjamin, 186n105 Persia history, 61 wind power use, 387 See also Iran Persian Gulf War and U.N. Compensation Commission, 110 personal status law and individual rights, 325–341 Peruvian counterterrorism, 269 pesticide regulation, 366–67 Petcheskey, Rosalind, 243, 244n241 Peters, William C., 173n45 Petraeus, Bridgadier General David, 267, 268n268 Petronas Carigali Overseas Shd. Bhd. of Malaysia, 141, 160 Petty, Thomas A., 297n56 Pfanner, Toni, 165n4 Philippines Abu Sayaf jihadist group, 81 geothermal power, 386 Phillips, Kevin, 245n249 photovoltaic energy sources, 385 Phuong, Catherine, 323n57 Pinckney, Charles, 63 Pinochet, 210 Piotrowski, Tadeusz, 127–28n150 Pious, Richard M., 56–n5 pipelines’ vulnerability to terrorist attacks, 74, 82–83 Piven, Jerry S., 56, 285–310, 297nn54, 298nn59–61, 301n72 Plato’s Republic, 265, 265n21

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Pleming, Sue, 171n31, 172n39 plutonium’s availability, 82–83 Poland’s Iraq war troops, 74 Polgreen, Lydia, 122n109, 124n129, 138n199 political strategy of suicide bombing, 288–89 politics and limits of Presidential maximum-security state, 89–92 Polk, President James K., 69n94 Pollack, Mark A., 344n5 pollution control in using wind power, 394 Popper, Karl, 271, 271n39 Popular Defense Force (PDF) in Sudan, 113, 119–20, 122–23 population displacement in Sudan, 139–46 port security in U.S., 81–82, 94–96 Portugal airspace, CIA use of airspace, 36–37n138 Posner, Eric A., 93n266 Posner, Richard A., 87–89, 87nn236–237, 88–89nn239–246, 90–91, 90nn252–253, 91nn255–258, 93n266, 96n302 Post, Jerrold M., 289, 289n24, 292nn47–48, 293nn36–43, 294n49, 297n54, 303n83 Pot, Pol, 127 Powell, C. H., 54n215 Powell, Colin L., 121nn99–100, 130n158 Powell, H. Jefferson, 104–105n358 Powell, Sian, 127–28n150 Powers, Thomas, 86n231 Pozner, Jennifer L., 241n227 Prah, Pamela M., 81–82nn198–200 Pratt, Nicola, 90, 328n82, 330nn89 preemptive war by U.S., 74, 101–102 Prendergast, 152n293 President (U.S.) Cleveland, Grover, 69n94 communication strategy, 104 executive orders, 70 “grand strategy” for national security, 102–105 Hayes, Rutherford B., 69n94 historical evolution of, 65–71 intellectual history of, 56–108 McKinley, 69 National Security Decision Directives, 69–70 national security presiprudence, 55–105 oath of office, 55 Polk, K., 69n94 as sentinel of national security, 56–71 Speech on Military Commissions, 3n9, 32n116 timing of initiatives, 101–02 See also Bush, President George W. preventing terrorism administrative model’s focus, 23 criminal model’s shortcomings, 17

preventing terrorism (cont.) detention justification, 3, 50–51 motivations of terrorism as factor in strategies for, 285–310 Priest, Dana, 226n164 private military and security companies (PMSCs), 163–192 private military firms (PMFs), 168 private security companies (PSCs), 163–192 procedural safeguards in Security and Prosperity Partnership of North America (SPP), 369 production tax credit (PTC) for wind power, 401–02 projective identification, 303 property ownership rights under Shari’a law, 336 property tax incentives for renewable energy production, 408 property values and wind turbines, 400 Prosecutor v. Galic, 214, 214n99 psychological motivations of suicide terrorists, 285–310 psychology and limits of Presidential maximum-security state, 88–89 narrative’s role in counterterrorism, 257–83 of terrorism, 259, 285–310 public health emergencies post-9/11 measures in U.S., 74 protocols for terrorist attack response, 84 public scrutiny of private military and security companies (PMSCs), 179 Pullman strike, 69n94 Putin, Vladimir, 77 Putnam, Constance, 227n172

Q Qassam, Sheikh Naim, 281 Qatar and oil exploration in Sudan, 108n3 Quigley, John B., 126nn145–46, 127n148 Qureshi, 263n17

R Rabin, Yitzhak, 292n33 Raddack, Jesselyn A., 53n213 Radelet, Michael, 227n172 Raleigh, Sir Walter, 60n36 Ramzy v. Netherlands, 36n137 Ranneberger, Michael E., 119n85 Rao, Govind C., 130n157 rape El Manara movie, 195, 197 in Sudan, 114–16, 121, 122–23, 125, 138 Rasul v. Bush, 42–43, 76 rationality of suicide bombings, 296–97

TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008

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Index

Ratner, Michael, 3–4n12 Ratner, Steven, 4n14 Ratner, Steven R., 136n185 Raustiala, Kal, 7, 56–57, 344nn5, 354, 354nn53, 355, 355n63, 368, 368n127, 374, 374n148 Ray, Amy, 195n10 Rayment, Sean, 172n36 reconstruction operations and use of private military and security companies (PMSCs), 181–82 Red Cross’ Geneva Convention commentary, 12n39, 13nn45–46, 14n48, 187n109 Reeves, Eric, 120n89, 136n187 refoulements of terrorism suspects, 35–36 refugee protection by private security companies (PSCs), 169 regulatory approach to private military and security companies (PMSCs), 186–192 Reinisch, August, 238n212 Reisman, W. Michael, 13n44, 43n170, 63, 207, 207n55, 208, 208nn60, 217n113, 244n243 relational right as individual rights, 311–341 religious freedom in Sudan constitution, 114 religious fundamentalism El Manara movie, 194–97, 254–55 suicide bombings, 285–310 See also Islamic fundamentalists religious law and women’s rights in constitutional provisions, 311–341 remoteness of wind power sites, 395, 396 renewable energy, 377–411 Renewable Portfolio Standard (RPS), 404, 405–06 rent-a-cop security protection and growth of private security industry, 166 reparations to other genocide victims, 149–50 to Sudan genocide victims, 107, 147–61 reproductive rights, 334–35 Restatement (Third) of Foreign Relations, 21n75, 22n77 Reston, James Jr., 250n274 retaliation as motivator of suicide bombers, 291–92 revolutionary experience as shaping U.S. presidency, 62–63 Revolutionary United Front, 179 Reynolds, Paul, 229n179, 244n245 Rhines, Neil, 400n123 Rice, Secretary Condoleezza, 2n6, 228n173 Rice, Xan, 125n136 Richardson, Louise, 208n58 Risen, James, 167n10, 200–201n31 Risse, Thomas, 348n20 Rivkin, David Jr., 226n165 Roach, Kent, 17n56, 39n153

432

Roberts, Hugh, 194n3 Robins, Robert S., 289, 289n24, 292nn47–48, 293n42, 295n49, 303n83 Robinson, Glenn, 283n77 Robinson, Mary, 207, 240, 240n224 Rodley, Nigel, 198n21, 225, 225n160 Rohde, 184n100 Rohde, David, 169n20, 181n87 Rolandsen, Øystein H., 116n57 Roman history, 61, 64 Rome Statute of the International Criminal Court, 213, 213n93 Rona, Gabor, 10n33 Roosevelt, Franklin, 69, 70 Roosevelt, Theodore, 69 Rosenau, James, 348n24 Rosenberg, Ronald H., 377–411 Rosky, Clifford, 179n76 Rottensteiner, Christa, 136n182 Roy, Olivier, 247n259 royalty payments for wind farms, 395 Rozenburg, Joshua, 40n158 Rubenberg, Cheryl A., 313n3, 314n7, 315n11 Rubin, Alissa J., 164n1, 172n38 Rubin, Barnett R., 183n93 Rubin, Elizabeth, 114n44, 119n88, 120n90 Rumsfeld, Hamdi v., 42–43n169 Rumsfeld v. Padilla, 42–43n169 Rushdie, Salman, 250 Russell, Jago, 37n140 Russell, James A., 279n63 Russia bodyguard services by private security companies, 170 genocide and oil exploration in Sudan, 108n3 number of terrorist incidents since 9/11, 80–81 2004 terrorist activities in, 77 Rutledge, John, 63 Rwanda foundational myths of Hutus and Tutsis, 265 International Criminal Tribunal for, 130, 132, 137–38, 152 private military and security companies (PMSCs) in, 167n12

S Saadi v. Italy, 36n137 sacredness of self-sacrifice, 307–08 Safferling, Christoph J.M., 19n66 Safwat, Safia, 110n12 Saghie, Marc, 249n269 Sahgal, Gita, 241n229, 253n289

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Salafist Group for Preaching and Combat jihadist group, 81 Sale, Richard, 248n260 sales of arms. See weapons sales and purchases sales tax incentives for renewable energy production, 409 Salifiya Jihadiya jihadist group, 81 Samar, Sima, 124nn124, 125, 127, 151n288 samurai warriors, 298 Sanders, Edmund, 120n89 Sandline, 168 Sands, Philippe, 207n56, 349n27 Sanger, David E., 32n119 Sary, Ieng, 127 Saudi Arabia establisment of Muslim state in, 80 regulation of charities in, 95 sponsor of Islamist fundamentalists, 243 Sudan trading partner, 144 2004 terrorist attacks in, 77 Wahhabis, 264 Savage, Luiza, 359n84 Scahill, Jeremy, 169n21, 170n27 Schabas, William, 127n148 Schabas, William A., 131n161, 139n204 Schmitt, Eric, 198n22, 271n42 Schmitt, Michael N., 3n12 Schneider, Elizabeth M., 36, 319nn32 Schoenman, Ralph, 292n33 Scholz, Adrienne, 155n310 Schulz, William, 217n118, 225n162, 232n189 Schwartz, Barry, 305n91 Sciolino, Elaine, 5n16, 32–33n120 securities regulation and international economic networks, 354 Security Agenda of SPP, 358 Security and Prosperity Partnership of North America (SPP), 343–75 self-hatred as motivator of suicide bombers, 304–305 self-identification of combatants, 14 Sells, 263n17 Semple, Kirk, 146n262 Senate Committee on Foreign Relations, 68 Senate Intelligence Committee’s Report on Pre-War Intelligence On Iraq, 76 Serafino, Nina M., 167n10 Seward, Secretary of State, 100 sex-trafficking by private military and security companies (PMSCs) in, 172 Shachar, Ayelet, 46, 49, 321nn45, 322, 322nn50–51, 331n99 shadow flicker from wind turbines, 399, 399n120 Shaffer, Gregory C., 9, 344nn5, 352n44

Shahin, Miriam, 194n7 Shalmon, Dan A., 141n222, 145n255 Shane, Scott, 169n21, 200–201n31 Shanker, Thom, 32n119, 198n22 Shari’a law and women’s rights in Iraqi and Afghan constitution, 311–341 Sharon, Prime Minister, 77–78 Shaw, Bernard, 225n158 Shaw, George Bernard, 206–7, 206nn53–54 Shehada, Nahda Younis, 248n265 Shelton, Dinah, 155n308 Shepherd, Joanna M., 147n264 Sheridan, Mary Beth, 206n50 Sherman, Steven J., 264n20 Shermer, Michael, 129n151 Sherwell, Philip, 122n107 Shi’a and Afghan constitutional provisions, 325–341 and Iraqi constitutional provisions, 330 of Lebanon, 273, 276, 277, 293 Shneidman, Edwin s., 297n56 Shue, Henry, 227n169, 228n174 Shultz, Richard H., 83n207 Sidahmed, Abdel Salam, 111n16 Sidahmed, Alsir, 111n16 Sierra Leone’s use of private military and security companies (PMSCs) in, 168, 178–79 Sievert, Ronald L., 20n69 Sifaoui, Mohamed, 250n274 Silke, Andrew, 296–97, 296nn51–53, 297n55 similarities between terrorism and torture, 209 Singapore’s security-based detention of terrorism suspects, 41 Singer, P.W., 18, 23, 166nn8–9, 167–168n13, 167n11, 168nn14–16, 169nn19, 172n34, 173n45, 176n63, 181n84 Sinnar, 111 Slackman, Michael, 31n114 Slaughter, Anne-Marie Governing through Government Networks, 348n24, 350n35, 351n42, 352, 352n47, 369n132 “informed divergence” of network members, 355, 355n64 network defined, 349n26 network examples, 31, 349nn28 “new world order,” 344, 344nn5–8, 345, 345n11, 347, 347n18, 348n21, 353n50, 368n124 norms in transgovernmental networks, 373, 373n145 regulation of information as soft power, 353, 353n48 socialization of network members, 62, 355nn60

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Index

slavery freeing in U.S., 102 reparations for U.S.slaves, 150 in Sudan, 120 Smallwood, K.S., 400n124 Smith, Craig S., 5n16 Smock, David, 330n91 Snidal, Duncan, 353n49 Snow, D. a., 274n46 socialization of network members, 355 solar power, 379, 383, 385, 386–87 Solf, Waldemar A., 9n28, 14–15n50, 49n201, 50n202 solid wastes from fuel production, 394 Solomon, Jay, 87n232 Somalia, private military and security companies (PMSCs) in, 167n12 South Africa Bill of Rights, 324, 324n58, 331n98 customary law in, 315–17, 320, 322, 325n61 domestic regulation of private military and security companies (PMSCs), 184 Executive Outcomes private military firm, 168 primogeniture and, 316, 322 private security firms and contractors, 164n2, 168, 184 prosecution of private security firms and contractors, 184 Revolutionary United Front, 168 South Carolina’s threat to fire on Fort Sumter, 98 sovereign immunity and crimes against humanity, 157–58 sovereignty erosion by Security and Prosperity Partnership of North America (SPP), 345 Soviet Union threats distinguished from those of Islamic terrorists, 80 Spain CIA use of airspace of, 36–37n138 counterterrorism measures in, 38n141, 54n215 Madrid railway station bombing, 77, 246 number of terrorist incidents since 9/11, 80–81 Spear, Joanna, 166n8 speech, prosecutions for, 93 Sponeck, H.C. Graf, 154n305 SPP Regulatory Cooperation Framework, 369 Sprinzak, Ehud, 277n56 Squires, Susan, 400n123 Sri Lanka reports on terrorism in, 16, 196nn15 Tamil Tigers, 239, 288, 299 Sriram, Chandra Lekha, 143n241, 144n249 standards and Security and Prosperity Partnership of North America (SPP), 368 Stannard, David E., 129n151

434

starvation in Sudan, 112–13, 115–16, 121 state action definitions of terrorism, 216 by private military and security companies (PMSCs), 177–92 and women’s rights, 323–34 Stein, Ruth, 297n56 stereotypes and myth creation, 264 Stern, Jessica, 198n21, 205n49, 289, 289n24 Stern, Nicholas, 378n6 Sternberg, Ernest, 206n50 Sterzinger, George, 400n125 stewardship theory of U.S. presidency, 69–70 Stewart, Richard, 369n131 Stewart-Patterson, David, 367n123 Stinnett, Nathaniel, 172n34 Stockman, Farah, 19n64, 35n134, 164n1, 172n35 stories of terrorists, 257–83 of victimization, 306 Strauss, Scott, 117n66, 119n87, 120n95 Straw, Jack, 38n141, 54n215 Straziuso, Jason, 166n6 Sudan Darfur massacres, 77, 119–20 genocide and oil exploration in Sudan, 107–61 Sudan Liberation Army, 119, 150 Sudan People’s Liberation Army (SPLA), 112, 113, 140–41 Sudanese People’s Liberation Army, 266 Suhrke, Astri, 129n152 suicide Cato’s suicide, 297 kamikaze self-sacrifice, 297–98, 298n63 Masada Jews, 305 See also suicide bombings suicide bombings in Iraq, 76 by Islamic terrorists, 80 psychological aspects of, 285–310 thanatological aspects of, 285–310 Suleiman, Lt. Gen. Ibrahim, 134 Sulmasy, Glenn M., 8n26 Sulzberger, C. L., 131n160 Sumiya, Mikio, 149n276 Sunga, Lyal s., 174n49 Sunni Muslims in Sudan, 111 Sunni personal status law in Afghan constitution, 326 Sunstein, Cass, 204n41 Supreme Council of the Islamic Revolution in Iraq(SCIRI), 330 Suresy v. Canada, 36n137

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surveillance by private military and security companies (PMSCs), 167 technological innovations to prevent terrorist attacks, 86, 87 Sweden’s transfer of terrorism suspects to U.S. or other state for detention, 35n134, 36–37n138 Syria, sanctions against, 75–76

T Taliban detention of members or supporters of, 44 gender apartheid in, 242 9/11 Public Discourse Project report, 95–96 Pakistani activities, 95 timing of U.S. attacks in Afghanistan, 101 2004 attacks by Taliban and al-Qaeda, 77 2003 attacks in Afghanistan, 72 Talisman Energy, 107, 140–41, 159–60 Tamil Tigers, 239, 288, 299 Tangler, James L., 388n53 Tanzania, 54n215, 267 Tarzi, Amin, 326n67 Tate, Julie, 45n182 Tayler, Wilder, 249, 249n272 Taylor, Shelly E., 275n50 Taylor, Stuart, 4n15 technological choices for electricity generation, 384–86 technological security innovations, 83–87 Teitel, Ruti, 205n47 Tenet, George, 3n11 terrorism definitions, 211–220 as violation of human rights, 233–39 See also counterterrorism; detaining terrorism suspects Terrorist Screening Center, 76 Terwilliger, George J. III, 4n15 Texas’ wind power capacity, 391–92 Thailand’s transfer of terrorism suspects to U.S. or other state for detention, 35n134 thanatological aspects of suicide bombings, 285–310 Thelander, C.G., 400n124 theocrats vs. democrats, 250 Thirteenth Amendment, 101 Thomas, Troy S., 14, 260n11, 261, 261nn12, 264n19, 278n62, 279n64 Thompson, Dennis, 372n144 Thornton, Emily, 391n81 Tibi, Bassam, 267 Timberg, Craig, 124n128, 125nn130–33 Titan, 172

Tomlinson, Chris, 169n22 Tomuschat, Christian, 158n325 Toope, Stephen J., 373n147 torture Bush Administration record, 93 human rights law balance in protecting from terrorism and torture, 193–255 in Sudan, 118 Victim Protection Act, 155–56 Tory history of England, 61 Total Information Awareness (TIA), 86 trade agreements Canada-United States Free Trade Agreement, 357 NAFTA, 357 Security and Prosperity Partnership of North America (SPP), 343–75 trains’ vulnerability to terrorist attacks, 82–83 transcendence in suicide bombing, 306–08 transnational jihadi groups and international standards for detaining terrorism suspects, 1–54 transponder implants, 86 transportation corridors in North America, 364–66 transportation system vulnerability to terrorist attacks, 82–83, 95 Travis, Hannibal, 107–161, 154n304 treaty-based international law, 374 Trent affair, 100 trucks’ vulnerability to terrorist attacks, 82–83 Tsekos, Mary Ellen, 215n106 Tuller, David, 124n129 Tunisia, 84, 329 tunnels vulnerable to terrorist attacks, 82–83 Turkey’s terrorist incidents since 9/11, 80–81 Turner, Mark, 10, 259, 260, 260nn9, 266n26 Tutsis’ foundational myths, 265 Tversky, Amos, 264n20 TWA hijacking, 277 Twele, Jochen, 387n52

U Uganda AK-47 availability, 82 evidence in terrorism cases in, 54n215 fundamentalist terrorism in, 196n15 use of private military and security companies (PMSCs) in, 168 Ulfstein, Geir, 351nn38–39, 371n137 Ulpian, 58 U.N. Baghdad headquarters destruction, 74 Convention against Mercenaries, 58, 175–76, 175nn53, 177nn65–67

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435

Index

U.N. (cont.) Development Programme, 197n20 limits on Presidential power in national security matters, 93 mercenaries, use of, 51, 174nn50 use of private security companies (PSCs), 169 U.N. Assistance Mission in Afghanistan (UNAMA), 183 U.N. Compensation Commission, 110, 152–61 U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, 220–22, 228–29 U.N. Economic and Social Council (ECOSOC) administrative model for detaining terrorism suspects, 46n184 Guantanamo Bay criticisms, 32–33n121 Human rights in Sudan, 118n71 “indigenous” populations, 107n2 private military and security companies, 164n2 rape as act of terrorism, 195n10 Rwanda report, 130n157 security-based administrative detention, 20n72 Sub-Commission on the Promotion and Protection of Human Rights, 235 Sudan reports, 114n42 U.N. High Commissioner for Human Rights, 207, 207n57, 214, 235 U.N. High Commissioner for Refugees, 118n72 U.N. High Level Panel on Threats, Challenges and Change, 92, 212–13, 212nn82–85, 213nn88–89, 215, 215nn104–5, 218n122 U.N. Human Rights Commission administrative detention, 20–21n72 Guantanamo Bay criticism, 33 mercenary use, 178–79n74 security-based detention, 30n112, 41n160 U.N. Human Rights Committee administrative detention, 20–21n72, 21–22n76, 22n78, 24–30 Guantanamo Bay criticism, 33, 33n122 judicial review of detention, 51n205 non-arbitrariness of detention, 48 security threat determinations by, 50 states’ duties to respect and ensure rights under Article 2 of ICCPR, 205, 206n44 U.N. Human Rights Council, 15n52 U.N. peacekeeping missions in Darfur, 125–26 U.N. Secretary-General Guantanamo Bay criticism, 33 Report of the International Commission of Inquiry on Darfur, 108, 108nn4–5, 114n43, 122–23, 132–39

436

U.N. Secretary-General (cont.) Report of the Situation of Human Rights in the Sudan, 117n70 See also Anan, U.N. Secretary-General Kofi U.N. Sub-Commission on the Promotion and Protection of Human Rights, 235 Union of Concerned Scientists, 394n93, 398n113 United Iraqi Alliance (UIAI), 330 United Kingdom A. v. Home Secretary, 40, 41, 52n211, 53n212 detention of terrorism suspects, 37–38, 38nn141, 41–42, 143 domestic regulation of private military and security companies (PMSCs), 184–86, 189 Immigration and Refugee Protection Act, 53 Iraq war troops, 74 number of terrorist incidents since 9/11, 80–81 Prevention of Terrorism Act, 41nn162, 53n212, 164 Trent affair, 100 use of private military and security companies (PMSCs), 167 United Kingdom, Chahal v., 25nn88–90, 50 United Kingdom Brogan v., 25, 25nn85–86 United Nations. See U.N. United States armed conflict model for detaining terrorism suspects, 31–33 austerity program in Sudan, 112 domestic regulation of private military and security companies (PMSCs), 184–86 energy production and consumption patterns, 383–86 Environmental Protection Agency, 354 ethanol production, 386 Security and Prosperity Partnership of North America (SPP), 343–75 use of private military and security companies (PMSCs), 167 See also U.S. agencies United States Institute for Peace, 330 United States v. Passaro, 189, 189n113 Universal Declaration of Human Rights, 22n77, 205n47, 240, 240n225 uranium availability, 82–83 in Iran, 75, 79 U.S. Agency for International Development (USAID), 170, 172 U.S. Committee for Refugees, 117n65, 129n153 U.S. Department of Energy costs of wind power electricity, 398

TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008

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U.S. Department of Energy (cont.) potential for utility-scale wind power projects, 389, 390 renewable energy sources, 385 U.S. Department of the Interior, 397, 403 See also Bureau of Land Management U.S. Forest Service and wind energy, 403 U.S. Immigration and Naturalization Service, 114n42, 117n63 U.S. Justice Department and warrantless surveillance of terrorism suspects, 78–79 U.S. Protection and Investigations (USPI), 183 U.S. State Department International Religious Freedom Report, 114n41 Lebanese Hizballah, 277n57 Secretary Colin Powell’s testimony on Darfur, 121, 121nn99–100 Sudan, 113n35, 114n41, 118, 118nn73–75, 141n221 use of private security companies, 170 utilitarian justifications for deliberate infliction of suffering, 231 utility regulatory policies, 406–07

V Vagts, Detley, 229n177 Valentino, Benjamin A., 127–28n150 Venezuela’s threat distinguished from that of Islamic terrorists, 80 Vermeule, Adrian, 93n266 victimization mythology, 292–93, 310 Vietnam War, 69 violent non-state actors (VNSA), 261, 265–67 Virginia, 100 Vise, David A., 19n65 Vlahos, Michael, 262–63, 263n16, 267, 267n31 Volkan, Vamik, 292n32, 293n35, 306, 306n95

W Wadhams, Nick, 154n307 Wahhabis, 264 Waldron, Jeremy, 225n162 Wallach, Lori, 368n128 war crimes among mercenaries, 178 Passaro prosecution, 190 in Sudan, 114 “war on terrorism,” 72–73 empathy and, 257–83 Islamic fundamentalists, 244–52 Warbrick, Colin, 5n16

warrantless surveillance Americans, 93 terrorism suspects, 78–79 Washburn, Gary, 87n253 Washington, George, 63, 65, 66, 98 Washington’s wind power capacity, 391–92 water exports from Canada, 364–66, 365n109 water supply vulnerabilities, 82–83 Wax, Emily, 120n94, 124n128 weapons availability, 82–83 weapons maintenance by private military and security companies (PMSCs), 167 weapons of mass destruction, 75, 76, 88, 95, 102 weapons sales and purchases genocide and oil exploration in Sudan, 107–08, 141–46, 160 by private military and security companies, 178 Wedgwood, Ruth, 196n13 Weigl, Andrea, 121, 164n1, 172n37, 190nn117 Weinstein, Harvey M., 147n263 Weir, Allison, 292n33 Weisberg, Marian, 292n32 Weissbrodt, David, 3n12 Welchman, Lynn, 31n114, 339n158 West Bank, 280, 287–88 West Virginia, 100 White, Josh, 45n182 Whitlock, Craig, 19n68, 20n70, 32–33n120, 35n132, 35n134, 36–37n138, 39n147, 45n182 Whytock, Christopher A., 344n5 Wiesel, Elie, 224 Wilkens, Tracy, 33–34n126 Wilkes, Captain Charles, 100 Willard, Andrew R., 31n113 Williams, Margot, 3n8 Wilson, James, 63 Wilsop, Sir Charles, 111n15 Wind Energy Development Program, 403 wind power, 377–411 Winfield, Mark, 354nn58–59 Winter, Roger, 124n128 Winter, Roger P., 113n30 Wippman, David, 136n185 Wirth, John, 366n116 Wisconsin’s wind power siting regulation, 405 Wittes, Benjamin, 4n15 Women Living Under Muslim Laws, 243 Women’s International League for Peace and Freedom, 242, 242nn234–35 women’s rights and human rights approach to terrorism, 241–44 relational right as individual rights, 311–341 Wong, Mabel Chau-ping, 260n11

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Index

Yugoslavia (cont.) U.S. federal courts, 155–56

wood waste as energy source, 385 work, right to, 335–36 working groups of Security and Prosperity Partnership of North America (SPP), 356 World Bank, 353 World Conference on Human Rights, 235 World Under Fire, 7n22 Wouters, Kees, 251n22

Z

Y Yalom, Irvin D., 299n64 Yemen constitution’s protection of religious law, 324n60 Yoo, John, 93n266 Yugoslavia genocide in, 132 International Criminal Tribunal for, 126n143, 131, 132, 137–39, 152

438

Zadvydas v. Davis, 52n209 Zaghawa people, 151 Zambia, use of private military and security companies (PMSCs) in, 168 Zaring, David, 54–55, 344n5, 350n33, 354nn52 Zegveld, Liesbeth, 175n54, 239nn218–19 Zerubravel, Yael, 265n23 Zhu, Ling, 108n3 Zieck, Marjoleine, 130n154 Zionist conspiracy, 292, 295 Zlotnick, David M., 315n12 Zolberg, Aristide R., 129n152

TOP TEN GLOBAL JUSTICE LAW REVIEW ARTICLES 2008