ETHICAL CONSIDERATIONS IN COMBATING ASYMETRIC WARFARE
LCDR David C. Hagen, USNR
Thesis Statement: Terrorism is the product of a rational
decision-making process, whereby the weak may asymmetrically attack the strong.
Without fear of proportional retaliation, physical harm and psychological fear
is instilled upon many, with the expected costs of terrorism far outweighed by
its gains. The imposition of sanctions that are limited in scope (i.e. trade)
provide terrorist groups and their supporters with limited consequence for
their actions. When it is determined that an act of international terrorism has
been committed against the
ethical obligation of the
Relations between states are based upon the belief that all are politically equal sovereigns.<![if !supportFootnotes]><![endif]> While in a venue such as the United Nations General Assembly this may be correct, there exists a practical, “realpolitik” distinction between the large, powerful and developed nations and the non-developed or developing nations.
This gap between weaker, rogue or
developing states <![if !supportFootnotes]><![endif]>
and stronger sovereigns may often be dealt with legally through the use of
alliances, trade agreements and voting coalitions. At times throughout history,
a state or an individual may search for power <![if !supportFootnotes]><![endif]>
in violation of laws and moral codes of conduct to influence a stronger nation
to take, or refrain from taking some action. While one may argue that a state
has an obligation to take (or refrain from taking) any and all actions
reasonably necessary to advance its own interests <![if !supportFootnotes]><![endif]>
modern day morality requires that this thesis be modified to fall within
acceptable norms of conduct<![if !supportFootnotes]><![endif]>.
The unprecedented attack of
Is a sovereign morally obligated to traditional procedures that may not advance its best interests? How may a nation best protect itself when confronted with an unconventional enemy brandishing an asymetric threat? Does the United States have a obligation, (predicated upon its Constitution) to afford a public criminal trial (with western due process protections) to accused international terrorists, when in doing so it provides an open forum within which for them advance a justification or defense to the attack?
Are the best interests of the
<![if !supportLists]>I. <![endif]>TERRORISM ENABLES WEAKER/NON-STATE ACTORS TO ATTACK POWERFUL SOVEREIGNS IN A COST-EFFECTIVE MANNER, DEVIOD FROM MODERN LEGAL AND MORAL CONSIDERATIONS
may be acquired in many ways. An individual, non-governmental actor may seek to
use terrorism in an effort to influence a nation that normally would not
diplomatically or politically recognize him, such as Osama bin-Laden<![if !supportFootnotes]><![endif]>.
A nation may use terrorism to attack a much stronger country, as was observed
in the 1986 Libyan bombing of a German Disco <![if !supportFootnotes]><![endif]>
and also in its 1988 attack on Pan American flight 103 over
What are the distinctions between those with those power and those without? Is it as simple as abundant natural resources combined with a limited need for resources from others? <![if !supportFootnotes]><![endif]> I argue that power is a product of natural and economic resources, and military strength combined with a demonstrated commitment to use them in a manner to protect or advance the legitimate interests of the sovereign and/or her allies. It is the desire to use these resources (i.e. power) to advance legitimate, just <![if !supportFootnotes]><![endif]>and ethical goals<![if !supportFootnotes]><![endif]> in a manner that respects human life<![if !supportFootnotes]><![endif]> that sets government action apart from terrorist attacks.<![if !supportFootnotes]><![endif]>
There are a number of avenues available for a powerless state or individual to influence a sovereign for what may be perceived (by them) is the advancement of a greater purpose. Traditional diplomatic, political <![if !supportFootnotes]><![endif]>and conventional military resources may not be enough to achieve the desired level of influence. If these resources are not available, or if the disparity between the parties is significant, the use of military styled force to advance non-legitimate goals is often considered by those who do not consider themselves bound by international law and custom.<![if !supportFootnotes]><![endif]>
II. A PROSECUTION IN A MILITARY TRIBUNAL OR AN AD HOC INTERNATIONAL CRIMINAL TRIBUNAL IS ETHICAL AND IN THE BEST INTERESTS OF THE UNITED STATES.
allows a smaller sovereign or group (frustrated due to a lack of success or
to attack a larger, more powerful sovereign with relative impunity, and by doing, impose a psychological cost of
fear that may actually result in the influencing of events and/or decisions.<![if !supportFootnotes]><![endif]>
In many cases, the response of the
for such a tribunal point to the 1942 case of the German Saboteurs who entered
Opponents to such tribunals point to the Fifth and Sixth Amendments to the Constitution<![if !supportFootnotes]><![endif]> The Fifth Amendment speaks to the due process protections that attack to domestic criminal defendants. Where an argument may be made by supporters of the tribunals that traditional constitutional protections do not apply to non-military attackers, our Constitution represents the moral and ethical underpinnings of society. Irrespective of jurisdiction, I believe our ethical obligation is best represented in the part of the Fifth Amendment that states “(n)or shall be deprived of life, liberty or property without due process of law”<![if !supportFootnotes]><![endif]>
The Constitution and its Amendments need to be read as a collective instrument and not individually. The nation’s ethical requirement to the defendant(s) is due process, i.e. fundamental fairness. We look to the Sixth Amendment and see that this requires notice of the charges, an opportunity to be heard, present and cross examine witnesses and have the matter heard before an impartial jury.
The proposed military tribunals and the International Criminal Tribunals of the past (and present)<![if !supportFootnotes]><![endif]> provide these guarantees. The significant issue with the military tribunal is whether the accused should be afforded a public trial with international coverage.
The purpose for the founding of our nation is best depicted in the preamble to the Constitution<![if !supportFootnotes]><![endif]>. Our primary moral and ethical obligation is to take all reasonable actions that advance the best interests of the nation, as represented by the preamble. Thus, we are obligated to “(e)stablish Justice, insure domestic Tranquility, provide for the common defense, promote the general welfare”. The subsequent test is whether a military tribunal or a non-televised International Criminal Tribunal advances these fundamental interests in a fair and ethical manner. I maintain that the potential of an internationally televised criminal trial for terrorists provides them with a forum from which to attempt to portray themselves and their cause as righteous and therefore sets the stage for additional terrorist activity. A completely public trial with western procedural due process may also lead to disclosures of intelligence gathering, informants and our understanding of bin Laden’s Order of Battle and operating procedures<![if !supportFootnotes]><![endif]>. The release of any of these does not pass the ethical (apart from the legal or military) “best interests test”<![if !supportFootnotes]><![endif]> articulated above, in a time of conflict. Since the providing of this platform, limited primarily by Rules of Evidence and Judicial discretion may act to significantly disrupt our government’s operations and threaten our citizens, it is not in our best interests and should not be allowed. The moral obligation, based upon our Constitution is to act in our nation’s best interests and ensure fundamental fairness (i.e. due process). We are not morally obligated as a nation to possibly create a situation whereby additional violence may occur. We are morally obligated to be fair. The drafters of the Constitution produced a document whose flexibility has withstood growth and development of our society and the world at large. The ultimate act of this document’s flexibility is its guidance in a crisis where the defendant’s arguably do not fall under its protection.
III. A MILITARY TRIBUNAL IS SUPPORTED BY THE “JUST WAR” DOCTRINE.
IV. THE COST EFFECTIVENESS OF TERRORISM REQUIRES ALL REASONABLE STEPS BE TAKEN TO ADVANCE AND PROTECT UNITED STATES INTERESTS.
A terrorist attack may be done with weapons that are not cost prohibitive and executed by those without uniforms or conventional military operations. The lack of military restrictions, a low risk of disproportionate retaliation, no risk of escalation and limited political risk makes terrorism both politically and economically effective.
military operations that are governed by doctrine that limits civilian
causalities, collateral damage to significant social and religious areas and a
reasonable and proportionate response,<![if !supportFootnotes]><![endif]>
terrorists operate freely. Recognizing that the
Lastly, it is the difficulties inherent in the defense, individually, collectively or through an international force<![if !supportFootnotes]><![endif]>; the determination of where, how and how much to defend (the tradeoff between physical security and civil liberties) and the belief that overt signs of defense and the imposition of restrictions generate a tactical advantage to the terrorist.
Striking a superpower using inexpensive, limited weapons, a reduced chance of detection, no constraints on innocents and non-combatants, fear of retaliation usually through law enforcement/criminal justice assets in connection with due process protections is a rational and cost effective means of attempting to influence behavior. Those who contend that a terrorist act must be the product of mental disease or defect fail to appreciate that once the decision is made to ignore the moral, <![if !supportFootnotes]><![endif]>ethical and legal constraints, the next decision is only for the planning and execution of the use of such force, often against those most vulnerable<![if !supportFootnotes]><![endif]>.
Our open system of government and the moral constraints<![if !supportFootnotes]><![endif]>we place on ourselves clearly empowers a potential terrorist. Once an attack is threatened or executed, the preparations for protection are in a way a victory for them. The psychological cost of fear is perhaps the ultimate weapon.
<![if !supportLists]>V. <![endif]>TRADITIONAL FORMS OF RETALLIATION ARE NOT EFFECTIVE AGAINST TERRORISM.
deterrence “(r)equires both the capability to do the damage and the
creditability that the weapons will be used.<![if !supportFootnotes]><![endif]> The
Is collective security a viable tool in responding to asymetric warfare? Sovereigns often respond to threat through the use of armaments <![if !supportFootnotes]><![endif]>, a position not truly applicable here. If we look to others for security, we are seeking to apply non-violent sanctions. This process is constrained by both procedures and politics that may add a significant time delay (and speculative certainty) to the imposition of sanctions. Accordingly, I question the effectiveness of economic sanctions as a primary weapon in retaliation to a terrorist attack.
the Lockerbie case, the
There are other issues with collective security. As the United Nations sanctions took place, were they actually impacting those with decision-making authority, or harming “(w)omen and children”?<![if !supportFootnotes]><![endif]>As was shown in the Lockerbie case, there were issues over the venue of the case, who would be the finders of fact, and what law would apply. These issues, affording the civilized world’s wide spectrum of due process to (then) alleged terrorists resulted in significant time delays and virtual impunity for the sovereign that sponsored the attack.<![if !supportFootnotes]><![endif]>
<![if !supportLists]>VI. <![endif]>IS IT POSSIBLE TO DETER TERRORISM?
Deterrence is also a cost/benefit analysis. If is “(p)ersuading an enemy that attacking you will not be worth any potential gain. <![if !supportFootnotes]><![endif]> If the benefits outweigh the cost, “(o)nly once, deterrence will fail”<![if !supportFootnotes]><![endif]> In an open and modern society, it is difficult to protect against an attack, and impart a message to potential terrorists that their efforts will not be effective.
In traditional warfare, the tactical benefits usually go to the defender. In assuming such a posture, it is easier to identify your weak points and construct redundant and complementary defenses. These plans are designed to protect against traditional military operations. Asymetric warfare does not readily lend itself to such ease of analysis.
terrorist’s goals are to influence and change behavior. Radicals possibly
associated with the Palestine Liberation Organization (PLO) sought to gain
recognition and obtain land now in the possession of
answer is that total deterrence is not possible. When dealing with an enemy who
does not value human life,<![if !supportFootnotes]><![endif]>the
rigid application of our standards of conduct is ineffective. Consider the
international press coverage on the
has developed from the days of hand-to-hand conflict<![if !supportFootnotes]><![endif]>
through the cold war, the 1989 collapse of
does a weaker sovereign or a non-state actor, frustrated by a lack of power
attempt to influence a regional power such as
a country or individual determines that they will not adhere to the accepted
forms of conflict/conduct, as codified through law, convention, treaty and
practice, terrorism is an easier course of action than are traditional military
operations. Terrorist weapons are inexpensive, may be delivered by individuals
that are poorly trained, clothed and equipped. As technology improves <![if !supportFootnotes]><![endif]>
military forces will have newer weapons available to them and it is only a
short time before terrorists have them as well. <![if !supportFootnotes]><![endif]>
With the attempted development of biological weapons by Saddam Hussain,<![if !supportFootnotes]><![endif]>
the world has been given notice that their development is inexpensive and easy
to conceal. If an effective delivery system were to be developed, <![if !supportFootnotes]><![endif]>
There is no concern with civilian causalities, in fact, the targeting of civilians adds to the psychological cost of fear. There is no concern with collateral damage to a significant religious or social location; in fact these may be sought out for their publicity. With the advent of continuous news coverage and the Internet, <![if !supportFootnotes]><![endif]>terrorist activity may have international coverage in a short period of time.
warfare presents its participants with far less risk than does traditional
armed conflict. A terrorist, especially one attacking the
The collective security apparatus in the United Nations is slow, bureaucratic and political. The result is a product that is removed in time from the attack. The use of embargoes and trade sanctions often impacts the weakest of the population, and rarely influences those with actual decision-making authority to a degree that changes their behavior.
The total deterrence of an attack is not a viable option. As a nation prepares to defend itself, the terrorist has succeeded in gaining notoriety or publicity. The bottom line here is that when dealing with an enemy that does not value human life, any loss of American life is disastrous.
Strategy of conflict is changing. Unable to match a powerful country with military force, rogue states and groups have shifted from victory being defined as the defeat of the enemy to inflicting the power to hurt.<![if !supportFootnotes]><![endif]> Terrorism, the deliberate targeting of civilians and innocents in an attempt to influence policy is the perfect tool to inflict pain. This shift in strategy will continue as the opportunity and possibility for traditional military conflict between major powers (super and regional) decreases.
American center of gravity is human life. The recognition of this provides a
terrorist a wide variety of targets from which to choose, and presents an
impossible span of targets to protect. The openness of western society, the
proliferation of news organizations and the low cost of weapons have led
terrorism to be a cost effective course of action for a weaker, frustrated and
angered enemy. Our defense is best through knowledge and proactive action to
remove the opportunity for an attack. The
<![if !supportFootnotes]><![endif]> “Basic Texts in International Relations” Selected and Introduced by Evan Luard (New York: St. Martins Press, 1992) p. 266
<![if !supportFootnotes]><![endif]> Richard
J. Halloran, Global Beat:
<![if !supportFootnotes]><![endif]> Plato, writing in The Republic” on justice between sovereigns addressed the issue of “unjust” actions, stating “Would you agree that a state may be unjust and may try to enslave other states or to hold a number of others in subjection unjustly” While in those times enslaving was perhaps actual enslaving, in modern times taking illegal and immoral actions that result in the influence of behavior may be considered enslaving as well. Cite: Luard, “Basic Texts”, p. 19
<![if !supportFootnotes]><![endif]> Luard, “Basic Texts”, p. 271. The author asserts, “(t)he search for power is the dominant motive influencing state actions”. I maintain that terrorism is the search for and the use of illegal and/or immoral power to influence or threaten others. The readings give other definitions, such as John T. Rourke, who argues that “(t)errorism is gain(ing) attention for a cause and creating widespread anxiety that will, in turn, create pressure on governments to negotiate with terrorists and accede to their every demand. Cite: John T. Rourke, “International Politics on the World Stage”, 7th Ed. (Guilford, CT: Dushkin Publishing Group, 1999), p. 350. My position is that the goal is altering some form of behavior through the actual or potential use of non-conventional force without regard to civilians, non-combatants, or religious/social locations and not necessarily to reinforce the need for negotiation or the mere acceding to demands.
<![if !supportFootnotes]><![endif]> Luard, Basic Texts”, p. 131. The author cites Machiavelli and believes that “(t)he interests of the state are paramount and if that makes a breach of faith or fair dealing necessary, then this must be taken”. Machiavelli believed that all resources available to the sovereign should be used to advance its interests, stating that when a leader (or a nation) is given the choice between being loved or feared “(I)t is much safer to be feared”, Cite: Nicolo Machiavelli, “The Prince” (Translated by W. K. Marriott)(Chicago: The Great Books, Encyclopedia Britannica Press, Inc., 1988) p. 24.
<![if !supportFootnotes]><![endif]> Machiavelli would not agree with these constraints. Daniel Burstein, in “Turning The Tables: A Machiavellian Strategy for Dealing with Japan” (Simon & Schuster, New York, NY: 1993) 11, the author quotes from The Prince, “Taking everything into account, [the wise prince] will find that some of the things that appear to be virtues will, if he practices them, ruin him, and some of the things that appear to be vices will bring him security and prosperity”.
<![if !supportFootnotes]><![endif]> Daniel C. Maguire and A. Nicholas Fargnoli, “On Moral Grounds: The Art/Science of Ethics” (Crossroad Publishing Company, New York 1996), 15. The authors articulate a belief that “Every moral ought derives from the foundational awareness of the value of persons. Because persons are so valuable, we owe them fidelity and truth and justice”. Is there a limit to our obligations to a person solely due to this theory that each person has an inherent value predicated upon their existence as a fellow human being? The authors speak of a “(m)oral sense of profanation, the disturbing sense of aversion and withdrawal that we experience in the face of that, which offends the value of persons and their environment. The foundational moral experience is also manifested in the moral shock and horror that we feel when persons are abused and desecrated” at page 15.
<![if !supportFootnotes]><![endif]> Author’s Note: Some criminal acts committed outside of the United States and its territories may still afford a suspect traditional “domestic” forms of due process; For example; See The United Nations Convention For the Suppression of Unlawful Seizure of Aircraft (Agreed upon 12/70), The Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal Convention, agreed 9/71) and the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, (agreed 3/88). In these agreements (and others), the signatories agreed that should, for example, an American citizen be injured or killed outside of the United States and its territories, the “receiving” country has the option of local prosecution or extradition. If the latter occurs, the defendant(s) would presumably receive a traditional criminal trial.
<![if !supportFootnotes]><![endif]> Non-governmental actors include “the Hizballah in Lebanon, Al-Gama Al-Islamiyya in Egypt, the Palestinian HAMAS and the Irish Republican Army” Richard J. Halloran, Global Beat: U.S. Defense Policy, September 9, 1988.
<![if !supportFootnotes]><![endif]> Craig R. Black, CDR, USN “Deterring Libya: The Strategic Culture of Mummar Quaddaafi” United States Counter proliferation Center, Maxwell Air Force Base, AL, Paper Number 8, page 3. This bombing killed two American Servicemen and resulted in the United States conducting airstrikes against Tripoli and Benghezi
<![if !supportFootnotes]><![endif]> Rourke, International Politics, 430.
<![if !supportFootnotes]><![endif]> Rourke, International Politics, 425
<![if !supportFootnotes]><![endif]> History provides significant support for a sovereign’s use of power to advance its interests. Saint Augustine (354-430) argued that there are times when, under the authority of law, deadly force may be used without committing murder. St. Augustine, The City of God, Book 1, ch. 21(Chicago: The Great Books, Encyclopedia Britannica Press, Inc., 1988) p. 141. This reference was cited in the “Statement on the Morality of the War in the Persian Gulf by American Catholic Theologians and Professors of Religious Studies” (p.2) in concluding that the “just war” theory cannot be argued in support of Operation Desert Storm. Saint Augustine’s early position that force may, at times, be justified was further refined by St. Thomas Aquinas (1225-1274), writing in Question XL (Of War), “In order for war to be just, three things are necessary. First, the authority of the sovereign by whose command the war is to be waged * * * Secondly, a just cause is required, namely, that those who are attacked should be attacked because they deserve it on account of some fault. Therefore Augustine says (q. x, superJos) “A just war is usually described as one that avenges wrongs, when a nation or state has to be punished: * * * Thirdly, it is necessary that the belligerents should have a right intention, so that they intend the advancement of good, or the avoidance of evil” Thomas Aquinas, Volume II (Chicago: The Great Books, Encyclopedia Britannica Press, Inc., 1988) p. 579. If, under certain conditions the “just war” theory allows the use of deadly force to avenge a wrong (and hence, advance a nation’s interest), an argument may be made that a sovereign is justified in taking actions less than war to redress a wrong. I contend that actions such as a non-public trial, trade embargos, economic sanctions and the like would be justified under a “just war” theory.
<![if !supportFootnotes]><![endif]> Author’s Note: Terrorist actions fail muster under a “just war” test. While Saint Augustine required the cloak of governmental authority as a condition precedent to the use of force, St. Thomas Aquinas combined the governmental authority with a “ just cause”. Here is why terrorists fail under a “just war” test. While a person or group may believe that their intentions are just (for example, the PLO believing that they should have sovereign land) and believing that different nations have different standards (See Hans J. Morgenthau: “The Struggle for Power and Peace” Brief Edition (Revised by Kenneth W. Thompson)(New York: NcGraw-Hill Inc., 1993) p. 246) the use of force against non-combatants and civilians cannot pass the right intentions (e.g. the “just”) test. For that test is not just the ends sought, it includes the means to those ends as well.
<![if !supportFootnotes]><![endif]> Douglas W. Kmiee “Military Tribunals Are Necessary In Times Of War”, Opinion Section, Wall Street Journal, November 15, 2001 “Terrorism is not ordinary crime within an ordered society. It is the indiscriminate killing of innocents and the destruction of property. As such, it is the quintessential crime against humanity, it is not a social or cultural dysfunction capable of rehabilitation or rectification by means of ordinary law enforcement and prosecution.” (Emphasis supplied)
<![if !supportFootnotes]><![endif]> “Those who question the legitimacy of such acts argue that what constitutes terrorism is often in the eye of the beholder, and * * * killing civilians with a bomb dropped on a building by a warplane is no different than killing civilians by planting a bomb in a building. (See Rourke, “International Politics” 347). Author’s Note: The distinction here is that if an air strike kills a civilian in a building, perhaps the building is (was) a military target, or the civilian’s death was the product of non-intentional damage. It is reasonable to assume that responsible, moral and ethical sovereigns would not target innocent civilians and therein lies the distinction between acts of legitimate force and acts of terrorism.
<![if !supportFootnotes]><![endif]> Author’s Note: Political efforts between states may include actions before the United Nations General Assembly as well as travel, economic and other types of treaties.
<![if !supportFootnotes]><![endif]> Rourke, International Politics, 346.
<![if !supportFootnotes]><![endif]> Rourke, International Politics, 329
<![if !supportFootnotes]><![endif]> “Most terrorists possess political objectives, whether Basque independence, Kashmiri separatism or Palestinian Marxism. Neither crazy nor stupid, they strive to gain sympathy from a large audience and wish to live after carrying out any terrorist act to benefit from it politically. As terrorist expert Brian Jenkins has remarked, terrorists want lots of people watching, not lots of people dead” Ehud Sprinzak “The Great Superterrorism Scare”, Foreign Policy, Fall, 1998, p. 3 (located via www. Findarticles.com) Author’s Note: The September 11, 2001 attack intended to create a massive loss of human life and the destruction of infrastructure and economic resources. While that objective may initially seem to run counter to Mr. Jenkin’s theory of limited loss, I argue that September 11, 2001 was perhaps the final assault in a series, and was designed to dramatically strike the American center of gravity, our value on human life. Through this, Osama Bin Laden, the al-Qaida network and the Taliban sought to advance his ultimate political goal, the influencing of U.S. Foreign policy in the Middle East.
<![if !supportFootnotes]><![endif]> At the First Handel International Strategy Conference at the United States Naval War College, Newport, Rhode Island 13-14 November 2001, Dr. Mark M. Lowenthal commented (in my words) that there is a significant difference between law enforcement (whose function is criminal investigation and the collection of evidence for subsequent prosecution and the military, whose role is the application of military force to further national interests.
<![if !supportFootnotes]><![endif]> “Military Order (on the) Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism”, signed November 13, 2001, specifically section 1, Findings (c) “Individuals acting alone and in concert involved in international terrorism possess both the capability and the intention to undertake further terrorist attacks against the United States that, if not detected and prevented will cause mass deaths, mass injuries, and massive destruction of property, and may place at risk the continuity of the operations of the United States Government” (emphasis supplied). Section 1 Findings, (e) “To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order pursuant to section 2 to be detained, and when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals”
<![if !supportFootnotes]><![endif]> The Military Order cites 10 United States Code 821 (The Uniform Code of Military Justice (UCMJ) is not exclusive and does not impair the jurisdiction of Military Tribunals, and 10 USC 836, which allows for the establishment of uniform procedures in the establishment and performance of duty of the Military Tribunals. The latter of these statutes is critical as it allows for the promulgation of procedures that ensure fundamental fairness and due process for the defendant, while balancing the needs of the sovereign in protecting and advancing its best interests.
<![if !supportFootnotes]><![endif]> Logistical concerns include securing the actual trial site and the safety of the jury and the Bench. See Review & Outlook, “Terrorists on Trial-II”, The Wall Street Journal, December 4, 2001 p. A18, citing a year’s preparation for the Pan Am Flight 103 trial in the Netherlands, and “The usual rule in civilian terrorist trials is anonymity for the jurors. But it’s hard to believe that jurors are going to consider that adequate protection after September 11. Judges are even more at risk; two federal judges in New York remain under tight security to this day, long after the end of their terror trials” Author’s Note: The United States Government have an ethical, legal and moral obligation to ensure the safety of the citizens that may be involved in such a trial. Given the nature and magnitude of the attack and the potential danger to those involved, the ethical obligation is to structure a procedure that acts in the best interests of the citizens and the government.
<![if !supportFootnotes]><![endif]> Henry Weinstein, Times Legal Affairs Writer “A Trial Too Big For U.S.?” Los Angles Times, October 26, 2001 quoting Beth Wilkinson, a former Justice Department Lawyer, “Our system was not designed to try someone who declares war on the U.S. and is willing to use all imaginable means—or what to me were unimaginable means before Sept 11—to carry out that war” and Professor Anne-Marie Slaughter of Harvard University “We risk winning the battle but loosing the war. By making this an American Event, we would shift attention away from the global nature of the attack. We loose enormous legitimacy, certainly in Muslim countries”.
<![if !supportFootnotes]><![endif]> 317 U.S. 1, 87 L. Ed. 7 (1942)
<![if !supportFootnotes]><![endif]> Chief Justice Stone, writing for the Court found constitutional support for military tribunals through a combination of the preamble (Congress and the President, like the courts, possess no power not derived from the Constitution. But one of [317 U.S. 1, 26] the objects of the Constitution, as declared by its preamble, is to 'provide for the common defence), (and) * * * 'To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations', Art. I, 8, cl. 10 (and) * * * that The Constitution confers on the President the 'executive Power', Art II, 1, cl. 1, and imposes on him the duty to 'take Care that the Laws be faithfully executed'. Art. II, 3) Ex Parte Quirin, et. al 317 U.S. 1, 87 L. Ed. 7 (1942).
<![if !supportFootnotes]><![endif]> The Constitution of the United States, Amendment V (1791) holds “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when, in actual service in time of War or public danger; nor shall any person he subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor shall be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation. (Emphasis supplied). The Sixth Amendment (1791) holds “In all criminal prosecution, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel for his defense.”
<![if !supportFootnotes]><![endif]> Amendment V, The United States Constitution
<![if !supportFootnotes]><![endif]> For examples of other International Criminal Tribunals include Nuremberg (1945), Tokyo, The Former Republic of Yugoslavia (See Julia Preston, “U.N. Creates Tribunal to Try War Crimes in Yugoslav Warfare” The Washington Post, February 23, 1993, Volume 113, Number 3, page 3), as mandated by United Nations Security Council Resolution 827 of May 25, 1993, United Nations Security Council Resolution 955 of November 8, 1994 establishing a tribunal for Rwanda. The establishing charters of these tribunals provide the procedures for ensuring due process.
<![if !supportFootnotes]><![endif]> “We, the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general welfare, and secure the blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Preamble, The Constitution of The United States of America, September 17, 1787.
<![if !supportFootnotes]><![endif]> “Terrorists on Trial-II”, The Wall Street Journal, December 4, 2001, Review & Outlook, page A18.
<![if !supportFootnotes]><![endif]> The apparent conflict with this theory is the domestic prosecution of Zacarias Moussaoui on six counts of conspiracy. “The indictment said Mr. Moussaoui was tied to the attacks because he engaged in activities that paralleled those of the 19 hijackers. Like the others, Mr. Moussaoui bought knives, enrolled in flight training classes, joined a gymnasium, sought information about crop dusting and global positioning devices and received money from Germany and the Mideast. Mr. Moussaoui was arrested on August 16 on immigration charges” Katharine Q. Seelye, “Justice Department Decision To Forgo Tribunal Bypasses Pentagon” The New York Times, December 13, 2001. A possible explanation for this is that the Justice Department’s decision may be an opportunity to present to the American public and the world evidence supporting Al qaeda’s direct involvement, and since this is a conspiracy trial, without having to disclose the actual specifics, whose disclosure may be harmful to our interests. See David Johnston and Benjamin Weiser, “U.S. Seems Intent On Focusing On Al Qaeda In First Sept. 11 Trial, The New York Times, December 13, 2001.
<![if !supportFootnotes]><![endif]> Rourke, International Politics, 347
<![if !supportFootnotes]><![endif]> Peter Paret, “Napoleon and the Revolution in War” in “Makers of Modern Strategy: From Machiavelli to the Nuclear Age” (Edited by Peter Paret), (New Jersey: Princeton University Press, 1986), p. 134, 136.
<![if !supportFootnotes]><![endif]> Morgenthau, “The Struggle for Power and Peace” p. 320.
<![if !supportFootnotes]><![endif]> Morgenthau, “The Struggle for Power and Peace, p. 246, citing the “(a)lmost complete lack of respect for human rights in many nations”
<![if !supportFootnotes]><![endif]> “Further, no terrorist becomes a terrorist overnight. A lengthily trajectory of radicalization and low-level violence proceeds the killing of civilians. A terrorist becomes mentally ready to use lethal weapons against civilians only over time and only after he or she has managed to dehumanize the enemy. Sprinzak, “The Great Superterrorism Scare” p. 3 (Author’s Note: While the al-Quida attack on the World Trade Center was part of a series of bombings against the United States, the domestic bombing at Oklahoma City, OK proves the exception to his thesis.)
<![if !supportFootnotes]><![endif]> Morgenthau, “The Struggle for Power and Peace” p. 228
<![if !supportFootnotes]><![endif]> Joseph S. Nye, Jr, Understanding International Relations: An Introduction to Theory and History 3rd Ed., (New York: Harper Collins College Publishers, 2000) p. 136.
<![if !supportFootnotes]><![endif]> Prior to the military offensive in Afghanistan (Operation Enduring Freedom), an example of a military response to a terrorist attack is (then) President Clinton’s Tomahawk missile attack against the Iraqi Intelligence Headquarters in retaliation for Sadam Hussain'’ plans to assassinate President George H. Bush in 1992.
<![if !supportFootnotes]><![endif]> The Air Force News, August 20, 1988 reporting on attacks in Afghanistan and the Sudan quoted (then) President Clinton as saying “I ordered our armed forces to strike at terrorist related facilities in Afghanistan and Sudan because of the threat they present to our national security. I have said many times that terrorism is one of the greatest dangers we face in this new global era. We saw its twisted mentality at work last week in the embassy bombings in Nairobi and Dar es Salaam, which took the lives of innocent Americans and Africans and injured thousands more. Today we have struck back “(emphasis supplied).
<![if !supportFootnotes]><![endif]> Morgenthau International Politics, 430
<![if !supportFootnotes]><![endif]> Rourke International Politics 430
<![if !supportFootnotes]><![endif]> Rourke, International Politics 431
<![if !supportFootnotes]><![endif]> Author’s Note: My position here implies that sanctions were designed to force Quadaffi to turn over the suspects for trial, and that they were not intended to punish either him, or Libya for the support of this attack. If the economic sanctions were designed to punish Libya, the country would have been a party to the proceedings, and the sanctions would continue, or some type of enforcement action or punishment would have occurred.
<![if !supportFootnotes]><![endif]> Rourke, International Politics 358
<![if !supportFootnotes]><![endif]> Rourke, International Politics 346
<![if !supportFootnotes]><![endif]> Rourke, International Politics 350
<![if !supportFootnotes]><![endif]> Luard, Basic Texts in International Relations 246
<![if !supportFootnotes]><![endif]> Luard, Basic Texts in International Relations 234
<![if !supportFootnotes]><![endif]> Luard, Basic Texts in International Relations 252
<![if !supportFootnotes]><![endif]> Rourke, International Politics, 346, where the author states: “The official U.S. price for a Stinger is about $30,000; the CIA was offering a reported $68,000 per missile, but it was being considerably outbid by eager rebels, terrorists and other arms shoppers willing to pay a reported $200,000 for a Stinger”
<![if !supportFootnotes]><![endif]> Rourke, International Politics 352, “The UN led inspections of Iraq since the Persian Gulf War indicated that the country also had a germ warfare program that had, at a minimum, produced 132,000 gallons of anthrax and botulism toxins.
<![if !supportFootnotes]><![endif]> Author’s Note: In the fall of 2001 the world saw that anthrax could be delivered via the mail. The delivery systems I reference here are those that would facilitate an attack by a military styled platform such as a missile or an aircraft.
<![if !supportFootnotes]><![endif]> Author’s Note: The Internet provides a terrorist with a number of benefits; first it provides coverage of the attack immediately, 24/7 and to countries where the government controls the media. Secondly, it provides a computer literate terrorist with an additional venue from which to launch his/her attacks, with the parallel and collateral issues of how to investigate and where to prosecute (if found).
<![if !supportFootnotes]><![endif]> Rourke, International Politics 338