I. War, Crime, and Detention

On September 11, 2001, al-Qaeda operatives attacked civilian and military targets on US territory, causing thousands of deaths and billions of dollars in economic loss. On September 12, the United Nations Security Council unanimously adopted Resolution 1368 characterizing the attack by al Qaeda as a “threat to international peace and security,” and reiterating the right of states to use armed force in self-defense. On the same day, NATO, for the first time in its history, invoked the obligation of collective self-defense under Article 5 of the NATO Treaty. On September 14, the US Congress passed the Authorization for the Use of Military Force, authorizing 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.” Terrorism, conceived until then as crime, was reconceived—as war.

Much of the debate on US counterterrorism policy has centered on the appropriate roles of the law of war and the criminal law in the detention of individuals engaged in armed attacks against the United States. In fact, however, neither “war” nor “crime,” alone or in combination, provides an adequate conceptual or legal model for responding to the threat currently posed by al Qaeda and its affiliates. The following sections identify the scope and limits of the criminal law and the law of war for these purposes, and then present a legal framework for counterterrorism detention that both integrates and supplements the two.

II. The Merits and Limits of the Criminal Law for Counterterrorism

Criminal justice is the appropriate legal vehicle for handling the bulk of terrorist activity. The criminal law is not, however, the appropriate mechanism for preventing the most serious forms of terrorist attack, those that threaten cataclysmic harm.

A grounding premise of the criminal law is that a society can tolerate some rate of serious crime. There is, however, no tolerable rate of the most serious forms of terrorism, which may include catastrophic nuclear, biological, or chemical attack, or a concerted series of conventional attacks that is cumulatively catastrophic. Counterterrorism directed to the prevention of high-magnitude terrorist attacks, therefore, rests on a set of assumptions critically different from those of the criminal law. The question is one of the grounding premises of the enterprise. While a Justice Department official might speak proudly of “the low rate of crime last year,” he would not speak proudly of the “low rate of nuclear attack”—unless it were zero.

Well known evidentiary and procedural problems limit the value of prosecution for counterterrorism. But the most fundamental problem—unpleasant to articulate—is the standard of proof. Criminal conviction requires proof beyond a reasonable doubt. That standard should not be eroded. Nor, however, should it be applied to the prevention of high-magnitude terrorism. Is it really smart to release an individual shown by “clear and convincing evidence” (the standard, one step below “reasonable doubt,” often used in civil cases) to have attempted a nuclear attack or a release of smallpox virus? If the answer is no, then criminal law is not the right tool for preventing catastrophic terrorism.

This incompatibility should not be taken to mean that criminal justice is an inappropriate tool for counterterrorism. Terrorism is not monolithic. Only its most virulent forms warrant a departure—an inevitably costly departure—from the balance struck, and the safeguards afforded, by the criminal justice system.

III. The Law of War and Private Actors

The law of war cannot rescue us here. Law of war is comprised of “jus ad bellum,” governing resort to the use of force, and “jus in bello,” governing conduct in the use of force. Jus ad bellum clearly permits the use of force by a state in responding to armed attack by a transnational, private actor such as al-Qaeda. But jus in bello offers no definition of the category of individuals subject to such detention, and specifies no procedures for their identification.

A schematic examination of the law of war demonstrates how—and why—it is silent concerning the standards for identifying the private actors subject to detention in an armed conflict with a transnational private entity. The jus ad bellum right to detain private actors is plain. The UN Charter states: “Nothing in the present Charter shall impair the inherent right of . . . self-defence if an armed attack occurs against a Member of the United Nations.” Consisting in a state’s “inherent” right to defend itself from attack, the right to use force in self-defense is not dependent on the source of the threat but, rather, applies equally to attack by a state or a transnational private actor. Force is comprised of the dual prongs of violence and detention. Detention is not only an inherent incident of the use of force, as reflected in both US law and the international law of armed conflict, but it is, in some circumstances, an obligatory alternative to killing.

But jus in bello, designed for interstate armed conflicts and (to a lesser extent) for civil wars within states, is virtually devoid of content concerning the use of force between a state and a transnational private entity. Jus in bello is composed of two parts: minimum standards of humane treatment applicable in all instances of use of force, and a set of additional and more specific rules applicable in armed conflicts between states. The former—minimum standards of humane treatment—are based on moral principles whose binding nature is not conditioned upon reciprocal conduct by the adversary. Those humanitarian standards constitute features of customary international law that are embodied in Common Article 3 of the Geneva Conventions of 1949 and elaborated in subsequent treaties. By contrast, the specific rules governing inter-state conflicts, embodied in the entirety of the Geneva Conventions of 1949 (of which only Common Article 3 applies to non-“international” armed conflicts), are based on reciprocal agreements entered into by states for their mutual benefit. Those rules extend beyond fundamental moral imperatives to include additional obligations designed to further reduce suffering in armed conflicts. The law of international armed conflict relies for its enforcement on a logic of reciprocity: states comply (to the extent they do) to obtain the benefits of compliance by their adversaries. Given the power differentials between states, asymmetrical military tactics, and the opportunity to conceal violations, it is unsurprising that the reciprocity mechanism elicits, at best, imperfect compliance by states. In a conflict with private actors such as “al-Qaeda and associated forces,” a reciprocity mechanism for compliance should not logically be expected to function at all. By both its terms and its logic, then, the law of international armed conflict is inapplicable in the use of force against a non-state actor.