With memorials and various observations making headlines today, I will break with protocol and comment some of the legal ramifications of the war on terror. In response to the attacks against the Pentagon, the World Trade Center, and the failed attack that crashed in Pennsylvania, the Bush administration launched the “war on terror”; a military response targeting terrorist organizations – notably al-Qa’ida. On September 18, 2001, the U.S. enacted Senate Joint Resolution 23: Authorization for Use of Military Force (AUMF). This stated that;
"…the President is authorized 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons."
Additionally, Bush, on November 13th, 2001, issued a military order entitled "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism", in which he stated "The term "individual subject to this order' shall mean any individual who is not a United States citizen with respect to whom I determine…" (emphasis added) was involved with a terrorist organization.
These statements have been used by the Bush administration as the justification to detain foreign nationals for suspected involvement with terrorists. In response to a succession of Supreme Court cases, however, the Bush administration was forced to reconfigure various legislation to conform with the U.S. Constitution, notably Article I, Section 8, which states it is within congressional authority to declare wars and “make rules concerning captures on land and water.” In response, Congress passed the Military Commissions Act of 2006, which defines the rules for prosecuting individuals accused of being terrorists, and classifies conspiracy – and other charges – are violations of the laws of war, according to U.S. law.
The use of terrorism is employed primarily to gain attention and to serve as a tool of propaganda. The attacks of militant groups are more propaganda than deliberate acts of retaliation or retribution. Violence for the sake of violence does not correlate to the intended influence of terrorist acts in the aftermath of attack. The targeting of "soft targets", such as the sarin attacks in Tokyo's subway by the Aum Shinrikyo cult, serve to provoke the "CNN effect" without the the need for conventional, military action. The objectives of militant groups are not served if nobody is left to watch.
The threat, or perceived capability, of attack may be more effective than the actual attack itself. This is the use of terrorism as policy. Yet, small scale attacks with large impacts may serve the ultimate agenda of militants. The U.S. departure from the port of Aden following the attack against the USS Cole in 2000, for example, was an exemplary consequence of terrorism. The loss of life was a secondary aim.
Islamic fundamentalism should be understood as an ethno-nationalistic struggle against colonial influence and an effort to establish an Islamic region free from dependency on Western nations. This is not to extend sympathy, but to prioritize strategic doctrines in response. The 21st century may be perceived as the dawn of the age of globalization where international markets and technological advances have resulted in what Robert Keohane, professor of political science at Princeton, has termed "the emergence and thickening of networks of connections". In the decentralized post-Cold War system of international order, the discreet notions of national identity are being blurred. “Old Europe”, to use Donald Rumsfeld's term, is being overshadowed by a new Europe in the form of the European Union – where being French and being European have new meanings.
The mode of operation of al Qa’ida in its post-9/11 structure is loose and decentralized. Cells appear to operate rather independently with membership typically less than a dozen or so. Sleeper units may remain inactive for years, marrying, developing families, and integrating into society. Citizenship of the country of operation is not unique to the targeted nation. The Lackawanna Six cell, for example, consisted of United States citizens of Yemeni descent. The "networks of connections" linking the world together in globalization, however, reaches beyond economics. The effects of non-state actors, such as al Qa’ida, are emerging in the post-Cold War international order as having the influence of states. With the dissolving of the conventional notion of state unity – European v. French – comes the influence of unconventional ideologies on states and state conflict.
Since the attacks against the United States on September 11, 2001, the Bush administration has expressed that the world is a safer place because of its “war on terror.” But since 2001, the military progress against al Qa’ida and its affiliates has had mixed results. Largely centralized in Afghanistan prior to U.S. military action, al Qa’ida has evolved from “the base” (it's loose translation), to widely dispersed brand name – Mc al Qa’ida, if you will. The U.S. has faced international criticism for its treatment of suspected terrorists in CIA black sites, condemned for its rendition techniques, and faced several legal challenges for its procedures in the naval detention facility at Guantanamo Bay, Cuba.
Because it is largely based on non-state aggression, terrorism as a strategic tactic has been typically associated with a criminal act. Language from the United Nations classifies these tactics as “criminal acts intended or calculated to provoke a state of terror in the general public.” International law has widely recognized terrorism as a crime punishable by law. The legal system was effective in prosecuting those responsible for the bombing of the World Trade Center in 1993 and the legal system was effective in prosecuting those responsible for the bombing of the Alfred P. Murrah Federal Building in Oklahoma City. With a customary usage in place to prosecute acts of terrorism, the use of state conscripted military forces may be an incident of using 20th century tactics to fight a 21st century challenge.
