Chapter 7

Thou shall not kill – But we will.

In July 2005, was sentenced to 22 years of impris- onment after a jury convicted him of an attempt to bomb International Airport on the eve of the millennium. Emphasizing the rule of law in punishing terrorists, US District Judge John C. Coughenour made the following comments during the sentencing hearing: I would like to convey the message that our system works. We did not need to use a secret military tribunal, or detain the defendant indefinitely as an enemy combatant, or deny him the right to coun- sel, or invoke any proceedings beyond those guaranteed by or con- trary to the US Constitution...Despite the fact that Mr. Ressam is not an American citizen and despite the fact that he entered this country intent upon killing American citizens, he received an effec- tive, vigorous defense, and the opportunity to have his guilt or inno- cence determined by a jury of 12 ordinary citizens. Most importantly, all of this occurred in the sunlight of a public trial. There were no secret proceedings, no indefinite detention, no denial of counsel. The tragedy of September 11th shook our sense of security and made us realize that we, too, are vulnerable to acts of terrorism. Unfortunately, some believe that this threat renders our Constitution obsolete. The war on terror is the antithesis of the criminal justice system that Judge Coughenour describes above. The criminal justice sys- tem is the peacetime legal infrastructure to arrest, indict, prose- War on Terror 249 cute, and punish persons accused of committing terrorists acts. The war on terror is an undertaking to eliminate militants suspected of committing terrorist acts. The criminal justice system is a com- plex legal framework consisting of law enforcement, intelligence, lawyers, judges, and appeals to high courts. The war on terror pri- marily consists of military operations designed to kill with speed and efficiency. Although these military operations are not lawless killings, the urgency of the battlefield minimizes legal restraints. When the traditional constraints of the laws of war are set aside or diluted, the war on terror furnishes a more liberal license to kill.1 The war on terror is thus a unique war with few legal con- straints on suppressive governments in pursuit of Muslim mili- tants. These minimal restraints against killing provide a vivid contrast to the criminal justice system, which is designed to assure a fair trial and conviction before a person is punished with capital punishment or life imprisonment. In waging the war on terror, suppressive entities are adopting aggressive unilateral and multilateral policies against Muslim mil- itants. Aggressive policies consist of surveillance of suspected ter- rorists, preventive detentions, renditions, torture, extra-judicial killings, deportations, convictions, indefinite imprisonments, and financial strangulation of businesses, charities, and any other orga- nization allegedly involved in supporting terrorism. In exceptional circumstances, suppressive states invade, attack, and occupy sup- portive states to stem the tide of terror. These aggressive policies are collectively known as “war on terrorism” or “war on terror.”

7.1 CHARACTERISTICS OF WAR

This section examines three important dimensions of the war on terror. First, the war appears to be lawless, though it is not. The US, like a classical Western hegemon, obeys the laws of war and other rules of international law but in doing so it carves out exemp- tions and exceptions to serve its warfare interests. Second, the war

1 Eric Posner, “Terrorism and the Laws of War,” 5 Chicago Journal of International Law 423 (2005)(arguing that laws of war do not apply to the conflict between the US and al Qaeda and that the US should continue to explore possibilities of nor- mative restraints that promote US interests).