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Assessing the Proportionality Doctrine and U.S Cornell Law Review Volume 88 Article 4 Issue 1 November 2002 Here, There, and Everywhere: Assessing the Proportionality Doctrine and U.S. Uses of Force in Response to Terrorism after the September 11 Attacks Michael C. Bonafede Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Michael C. Bonafede, Here, There, and Everywhere: Assessing the Proportionality Doctrine and U.S. Uses of Force in Response to Terrorism after the September 11 Attacks, 88 Cornell L. Rev. 155 (2002) Available at: http://scholarship.law.cornell.edu/clr/vol88/iss1/4 This Note is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. NOTE HERE, THERE, AND EVERYWHERE: ASSESSING THE PROPORTIONALITY DOCTRINE AND U.S. USES OF FORCE IN RESPONSE TO TERRORISM AFTER THE SEPTEMBER 11 ATTACKS Michael C. Bonafedet INTRODUCTION ................................................. 156 I. THE ORIGINS OF THE PROPORTIONALITY DOCTRINE ....... 163 A. Early Developments and the Laws of Armed C onflict ............................................ 163 B. The Caroline Incident and Article 51 of the United N ations Charter .................................... 165 II. ANALYZING PROPORTIONALITY IN PAST U.S. RESPONSES TO TERRORISM ............................................. 171 A. The 1986 Bombing of Libya ........................ 171 B. The 1998 Cruise Missile Attacks on Sudan and Afghanistan ......................................... 178 III. Is THE U.S. RESPONSE TO THE SEPTEMBER 11 ATTACKS PROPORTIONAL? ......................................... 181 A. The Debate over How to Calculate the Proportionality of Responses to Terrorist Attacks ... 183 B. Can the War on Terrorism Fit Within the Rules of Self-D efense? ....................................... 185 C. Proposal for an International Terrorism Exception to the Proportionality Doctrine ..................... 188 D. What the Proportionality Exception Would Look L ike ................................................ 193 E. Fighting Terrorism While Avoiding Anarchy in the International System ................................ 200 1. The Current Shift in State Practice ................. 203 2. The Formation of Customary InternationalLaw ..... 205 F. The Second Battlefield: Addressing the Root Causes of Terrorism ........................................ 208 t B.A., University of California, Los Angeles, 1999; candidate for J.D., Cornell Law School, 2003. My thanks to Professor David Wippman, Professor of Law at Cornell Law School, for his help and guidance with the development of this Note. CORNELL LAW REVIEW [Vol. 88:155 G. The Struggle Against International Terrorism Should Be Beyond Politics .......................... 210 CONCLUSION ...................................................... 212 "Let every nation know, whether it wishes us well or ill, that we shallpay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty." -President John F. Kennedy January 20, 19611 From this day forward, any nation that continues to harboror support terror- ism will be regarded by the United States as a hostile regime.... I will not forget this wound to our country and those who inflicted it. I will not yield; I will not rest; I will not relent in waging this strugglefor freedom and security for the American people. - President George W. Bush September 20, 20012 INTRODUCTION These words by Presidents Kennedy and Bush are separated by four decades of international history, conflict, and political transfor- mation. However, their purpose is the same: to prepare the United States for long periods of global battle. But unlike the Cold War, 3 the "War on Terrorism ' 4 is not directed against an easily identifiable and I John Fitzgerald Kennedy, Inaugural Address (1961), rernted in INAUGURAL AD- DRESSES OF THE PRESIDENTS OF THE UNITED STATES FROM GEORGE WASHINGTON 1789 TO RICHARD MILHOUS NIXON 1969, at 268 (1969). 2 President's Address to Joint Session of Congress, 37 WEEKLY COMP. PRES. Doc. 1347, 1349, 1351 (Sept. 20, 2001). 3 The Cold War period lasted from the mid-1940s (starting after the Second World War) until the end of the 1980s (with the collapse of the Soviet Union). See Cold War in 3 THE NEW ENCYCLOPAEDIA BRITANNICA 444 (15th ed. 1994). 4 Under the "Frequently Asked Questions" heading on the White House website, the Bush Administration defines the "War on Terrorism" as follows: What is the War on Terrorism? Nineteen terrorists hijacked four commercial airplanes on September 11, 2001 and crashed two of the planes into the twin towers of the World Trade Center in New York City, and one into the Pentagon in Washington, D.C. A fourth plane crashed in Pennsylvania. As a result, thousands of innocent individuals from more than 80 nations lost their lives. The evening of Sept. 11, President Bush spoke to the American people from the Oval Office in a nationally televised address: "The pictures of airplanes flying into buildings, fires burning, huge structures collapsing, have filled us with disbelief, terrible sadness, and a quiet, unyielding anger. These acts of mass murder were intended to frighten our nation into chaos and retreat. But they have failed; our coun- try is strong. "A great people has been moved to defend a great nation. Terrorist attacks can shake the foundations of our biggest buildings, but they cannot touch the foundation of America. These acts shattered steel, but they can- not dent the steel of American resolve. 2002] PROPORTIONALITY DOCTRINE AFTER SEPTEMBER 11 157 locatable enemy.5 Rather, the United States now finds itself in the unenviable position of swinging mightily at hidden bands of loosely connected international terrorist networks, and at even smaller indi- 6 vidual terrorist cells in locations worldwide. "America was targeted for attack because we're the brightest beacon for freedom and opportunity in the world. And no one will keep that light from shining." These terrorist attacks were an act of war against the United States. In a meeting on September 12 with his National Security Team, Presi- dent Bush said, "The deliberate and deadly attacks which were carried out yesterday against our country were more than acts of terror. They were acts of war. This will require our country to unite in steadfast determination and resolve. Freedom and democracy are under attack. "The American people need to know that we're facing a different en- emy than we have ever faced. This enemy hides in shadows, and has no regard for human life. This is an enemy who preys on innocent and unsus- pecting people, then runs for cover. But it won't be able to run for cover forever. This is an enemy that tries to hide. But it won't be able to hide forever. This is an enemy that thinks its harbors are safe. But they won't be safe forever. "This enemy attacked not just our people, but all freedom-loving peo- ple everywhere in the world. The United States of America will use all of our [sic] resources to conquer this enemy. We will rally the world. We will be patient, we will be focused, and we will be steadfast in our determina- tion. This battle will take time and resolve. But make no mistake about it: we will win." Frequently Asked Questions About the War on Terrorism at Home and Abroad, at http:// www.whitehouse.gov/response/faq-what.html (last visited Sept. 7, 2002). 5 See Thom Shanker, Rumsfelds Searchfor a Way to Fight a New Type of Foe, N.Y. TIMES, Sept. 3, 2002, at Al. The deadliest strength of America's new adversaries is their very fluid- ity, Defense Secretary Donald H. Rumsfeld believes. Terrorist networks, un- burdened by fixed borders, headquarters or conventional forces, are free to study the way this nation responds to threats and adapt themselves to pre- pare for what Mr. Rumsfeld is certain will be another attack. Al Qaeda, for example, has leaders and budgets and command-and- control and has proved it can inflict terrible damage, yet it cannot be at- tacked in a traditional battle. Mr. Rumsfeld ...focuses on maneuvering a steel-and-circuitry military so its forces can better fight a "virtual enemy." Id.; see also Anne-Marie Slaughter & William Burke-White, An International Constitutional Moment, 43 HARv. INT'L L.J. 1, 2 (2002) ("It is a new kind of war, a war against stateless, networked individuals. The goal of this war is not economic advantage, territorial gain, or the submission of another state. It is to bring individuals to justice and to punish and deter the states that harbor them." (citation omitted)). 6 See Mike Boettcher, Al Qaeda Forming New Cells Worldwide, CNN.com, at http:// www.cnn.com/2002/US/07/31 /al.qaeda.super.cells/index.html (July 31, 2002) ("Al Qaeda members who fled Afghanistan after the U.S.-led counter-terrorism offensive began last fall are forming what anti-terror coalition intelligence analysts are calling 'super cells' in locations stretching from North Africa to Southeast Asia."); Danny Hakim, 4 Are Charged with Belonging to a Terrorist Cell, N.Y. TIMES, Aug. 29, 2002, at Al ("The government indicted four ...men in federal court here today, saying they were part of a terrorist cell operating in the Detroit area and were planning attacks in the United States, Jordan and Turkey."); Nic Robertson & Mike Boettcher, Tapes Give Evidence of Al Qaeda's Global Reach, CNN.com, at http://www.cnn.com/2002/US/08/22/terror.tape.main/index.html (Aug. 23, 2002) ("A careful examination of an al Qaeda video archive ... shows ... evidence of the terror- CORNELL LAW REVIEW [Vol. 88:155 By the winter of 1961, the Cold War was already in its sixteenth year. Soon after President Kennedy's inauguration, tensions between the United States and the Soviet Union escalated rapidly with the Cu- ban Missile Crisis, 7 the Berlin Wall Crisis,8 and eventually, the steady intensification of the Vietnam Conflict.9 Similarly, the U.S.
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