U.S./allied view: (1) nature, magnitude, and definition of Islamist danger meant war rather than LE, (2) social science literature indicates it is war against Islamism, (3) “no question” about whether a state of war existed had a rogue state executed 9/11, so it is irrelevant that Islamist VNSAs were authors; (4) Even if 9/11 did not formally traverse the war threshold, LOAC entitled the U.S. to self-defend against perpetrators, (5) vested states with authority to detain/interrogate individuals indefinitely without charges and try Islamist detainees for pre-capture crimes in military commissions, (6) vested states with authority to use military force w/o warning against Islamist fighters whenever and wherever they can be found--geography of the battlefield is everywhere and temporal dimension is for as long as it takes to defeat them
CLOACA: (1) decriminalizes VNSAs and equalizes their status to lawful combatants while “superimpos[ing] the rhetoric of war” on a threat soluble with police and courts, (2) (9/11 provided an insufficient predicate to trigger LOAC as the unfolding battle was not defined with the geographic and temporal precision of previous wars, (3) peacetime civilian law remains applicable regime, (4) U.S. declaration that the entire world is a potential battlefield proves that selection of the war paradigm is a rhetorical ploy to “displace law and rights” globally with TK, rendition, torture
implication: U.S. is prosecuting an illegal war and only if it discovers “alternatives to self-defense”—in particular the LE model that proved ineffective in preventing serial attacks between 1993 and 2001 will it cease the systematic violation of LOAC and human rights
U.S./allied view: (1) Article 2(4) proscribes only the threat or use of force (a) prejudicial to the territorial integrity of states, (b) contrary to the political independence of states, and (c) “in any other manner inconsistent with the Purposes of the United Nations.”; (2) Article 51 codifies the inherent right of individual and collective self-defense in the event of an armed attack; (3) UNSCR 1368 recognized the inherent right of the U.S. to self-defend against those responsible for 9/11[;]” Resolution 1373 reaffirmed the right of self-defense and called on member-states to “take action against the perpetrators[.]”; (4) legality of allied armed force in self-defense against Islamists in Afghanistan, Iraq, Yemen, Somalia, Syria, Libya a settled question
U.S./allied view: (1) Article 2(4) proscribes only the threat or use of force (a) prejudicial to the territorial integrity of states, (b) contrary to the political independence of states, and (c) “in any other manner inconsistent with the Purposes of the United Nations.”; (2) Article 51 codifies the inherent right of individual and collective self-defense in the event of an armed attack; (3) UNSCR 1368 recognized the inherent right of the U.S. to self-defend against those responsible for 9/11[;]” Resolution 1373 reaffirmed the right of self-defense and called on member-states to “take action against the perpetrators[.]”; (4) legality of allied armed force in self-defense against Islamists in Afghanistan, Iraq, Yemen, Somalia, Syria, Libya a settled question
CLOACA view: (1) U.S.-led war against Islamists was illegal on four grounds: (a) one or more fronts constituted a “war of choice” and even an act of “aggression” inasmuch as there was no linkage to 9/11, (b) 9/11 was not an armed attack and the U.S. was therefore not legally justified in using force in response, (c) 9/11 was an armed attack but LOAC does not permit armed force in self-defense against a VNSA, and (d) 9/11 was an armed attack, entitling the U.S. to use force in self-defense, but because U.S. conduct in the resulting war was unlawful the resort to force in self-defense became unlawful as well
U.S. view: (1) no interrogation technique employed pursuant to U.S. policy constituted torture, and conditions at GTMO, where the average detainee gains eighteen pounds, recreates on a $750,000 soccer field, and receives his Qur’an from gloved guards “as if it were a fragile piece of delicate art[,]” are better than most federal prisons; (2) Obama Admin deems GTMO a “first-rate, Geneva-compliant facility” and, contrary to a 2009 executive order, kept it open, (3) military commissions comply with GC and U.S. law and isomorphic to military procedure/substance
U.S. view: (1) no interrogation technique employed pursuant to U.S. policy constituted torture, and conditions at GTMO, where the average detainee gains eighteen pounds, recreates on a $750,000 soccer field, and receives his Qur’an from gloved guards “as if it were a fragile piece of delicate art[,]” are better than most federal prisons; (2) Obama Admin deems GTMO a “first-rate, Geneva-compliant facility” and, contrary to a 2009 executive order, kept it open, (3) military commissions comply with GC and U.S. law and isomorphic to military procedure/substance
CLOACA claim: (1) U.S. interpretations of LOAC informing detention policies were legal ‘travesties” that turned GTMO into a “gulag,” a “horror,” and an “alien planet” rife with poor medical care, “sensory deprivation,” “beat[ings],” “rape,” and mock executions, (2) only shuttering GTMO and freeing detainees can “cleanse the nation of [GTMO]’s moral stain” and any resulting harm to national security is the moral price tag for having used torture, (3) military commissions unlawful
U.S. view: U.S. counterattack in Afghanistan, Iraq, and elsewhere was and is lawful under good-faith interpretations of LOAC
U.S. view: U.S. counterattack in Afghanistan, Iraq, and elsewhere was and is lawful under good-faith interpretations of LOAC
CLOACA view: (1) U.S. must investigate and punish senior civilian leaders, (2) only hearings, truth commissions, and civil and criminal prosecutions can atone for a conspiracy to commit serial war crimes so egregious that the only historical precedent is the Nazi regime, (3) senuor Bush Administration officials, including Vice President Dick Cheney, National Security Adviser Condoleeza Rice, Attorney General John Ashcroft, Secretary of State Colin Powell, Secretary of Defense Donald Rumsfeld, White House Counsel Albert Gonzales, and CIA Director George Tenet had a “common, unifying plan” to authorize, order, and abet the commission of war crimes, including allegedly torturous interrogations, disappearances, and forcible rendition; (4) administration lawyers “purported to immunize government officials from war crimes liability” and, like Nazi lawyers before them, are “criminally liable for participating in a common plan to violate [LOAC]”; (5) merely acknowledging that 4GW is distinct from “the traditional clash between nations adhering to [LOAC]” and suggesting that LOAC drafters may not have anticipated 4GW challenges earns allegations of war crimes
