If conventional warfare consists of an armed conflict between states conducted by regular armies, then the al-Qaeda attacks against the United States clearly constitute non-conventional warfare. The enemy does not employ regular armies. Using terrorist tactics, as it does, the enemy ignores traditional rules of war, most especially those concerning the treatment of prisoners (e.g., torture, beheadings) and the rights of non-combatant civilians (e.g., non-combatants as direct targets). Moreover, the enemy is not a state, nor is it associated with a specific state, nor indeed, with any specific geographical location. Nevertheless, it is more than a criminal cartel, for while its proclamations rarely express a coherent grievance, it implicitly challenges the political legitimacy of the United States.
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Hamdi v. Rumsfeld, 504 U.S. 547 (2004).
Preemption: A Knife That Cuts Both Ways (New York: W.W. Norton, 2006), p. 121.
To be sure, there were occasional military strikes: October 1983, Pres. Reagan ordered retaliatory strikes for the bombing of U.S. Marine barracks in Beirut; April 14, 1986, the U.S. bombed military bases in Tripoli, Libya, for its alleged connection to terrorist bombing of discotheque in West Berlin frequented by U.S. servicemen; President Clinton ordered missile attack against Iraq’s intelligence facilities in 1993 in retaliation for alleged plot to assassinate former President George H. W. Bush; In 1998, U.S. launched cruise-missile attacks on a pharmaceutical plant in Sudan and on terrorist training camps in Afghanistan following terrorist attacks on U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. With these few exceptions, virtually all instances of terrorism in the 1980s and 1990s were handled as criminal cases.
In afternoon of September 11, President Bush met with his principle advisers by means of video teleconference and began the meeting with the words, “We’re at war”. The 9/11 Commission Report, authorized ed. (New York: W.W. Norton), p. 326.
Pres. George W. Bush, Address to a Joint Session of Congress and the American People (September 20, 2001), emphasis added. It has been pointed out ad nauseam that terrorism is only a tactic and that one cannot make war on a tactic. For example, in December 1941, President Franklin Roosevelt did not ask Congress to declare war on air power; instead, he asked for a declaration of war against Japan because of its aerial attack on Pearl Harbor. Nevertheless, it is clear enough that the phrase “war on terrorism” is intended to denote a war against those individuals and groups throughout the world who are intent on engaging in terrorist attacks against the United States, its friends and allies.
Any number of distinctions have been made among various possible forms of warfare. While conventional warfare is between states employing regular, uniformed armed forces, ‘irregular warfare’ has been used to denote warfare between states and non-state actors, while unconventional warfare has been used to refer to guerrilla and covert operations, operations conducted with irregular forces. “Unrestricted warfare” refers to the title of a monograph by Qiao Liang and Wang Xiangsui, two army colonels from People’s Republic of China, who envision warfare by both military and non-military means, including hacking into web sites of financial institutions, terrorism, the use of media for propaganda, etc.
Attacks attributed to al-Qaeda include at least: The simultaneous bombings of U.S. embassies in Nairobi, Kenya, and Dar al Salaam, Tanzania, in 1998, and the bombing of the American destroyer U.S.S. Cole as it was refueling in Aden Harbor, Yemen, in 2000, as well as the attacks of September 11, 2001.
In 2003, Osama bin Laden sought and received a fatwa from a radical Saudi cleric that the use of a nuclear bomb against U.S. civilians would be permissible under Islamic Law: “If a bomb that killed 10 million of them and burned as much of their land as they have burned Muslims’ land were dropped on them, it would be permissible”. See: Matthew Bunn and Anthony Wier, “The Seven Myths of Nuclear Terrorism”, Current History (April 2005), p. 153.
See: Richard Falk, The Great Terror War (New York: Olive Branch Press, 2003), especially chapters 1 and 2.
David Luban, “The War on Terrorism and the End of Human Rights”, Philosophy & Public Policy Quarterly, v. 22, n. 3 (Summer 2002), p. 10.
The issue of indefinite detention of terrorist detainees has not been addressed by the U.S. Supreme Court and was not addressed in the Supreme Court case of Hamdan v. Rumsfeld (June 2006).
“We’re detaining these captured combatants not to punish them and not to keep them in detention pending criminal charges, but to prevent them from continuing the fight against the United States and its allies, and to obtain intelligence necessary in the on-going global war on terrorism”. [Stated by Navy Rear Adm. James M. McGarrah, director of Office of Administrative Review for Detained Enemy Combatants., as reported in Kathleen T. Rhem, “Review Boards Assessing Status of Guantanamo Detainees”, American Forces Information Service/News Article (July 8, 2005)]. Referring to the detention of Jose Padilla as an “unlawful enemy combatant”, Defense Secretary Donald Rumsfeld stated, “Our interest is not trying him and punishing him. Our interest is in finding out what he knows”. CNN, June 11, 2002.
A traditional example of indefinite, preventive detention is civil commitment of a person who is a danger to him/herself or to others as the result of mental disorder. The length of the commitment is indefinite, depending on the person’s recovery to mental health. When the mental disorder indicates a lack of responsibility, or at least diminished responsibility, the mentally disabled person is not considered deserving of punishment. Like the person with a highly infectious disease who is put in quarantine to protect other members of the community, the mentally ill person is put in confinement for somewhat similar reasons. In criminal law, sexual-predator statutes provide for continued commitment after the sexual offender has completed his sentence in prison. In Kansas v. Hendricks (1997), the U.S. Supreme Court permitted indeterminate confinement of dangerous individuals who have completed their sentences and have committed no new crime. Unlike persons civilly committed because of severe mental impairment, sexual offenders are regarded as responsible individuals; thus, they are deserving of punishment. Nevertheless, they are liable for further commitment after they have served their prison term when they are believed to pose a continuing danger to society. The dangerousness rationale for preventive detention plays a role in many other places as well. Judges often consider an offender’s dangerousness in determining the length of criminal sentences. Parole boards consider dangerousness when deciding whether or not to grant parole. There are also “habitual-offender” or “repeat-offender” laws that typically require state courts to hand down greatly extended sentences to persons convicted of serious crimes on three or more occasions.
Moussaoui stated, for example, “I will be delighted to come back one day to blow myself into your new W.T.C. if ever you rebuild it”. Philip Shenon, “Man Charged in Sept. 11 Attacks Demands that Qaeda Leaders Testify”, New York Times (March 22, 2003) at B-12.
I consider myself a “moral pluralist” in the sense that I believe utilitarianism must be augmented with other, non-utilitarian principles.
See “Guantanamo Detainees”, at: http://usinfo.state.gov/dhr.Archive/2004/Mar/17–718401.html.
Referring to military “screening” processes, the Hamdi Court remarked: “An interrogation by one’s captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker”. 542 U.S. 507, 537.
Michael J. Corrado, “Punishment and the Wild Beast of Prey: The Problem of Preventive Detention”, 86 Journal of Criminal Law & Criminology 778, 793 (1996). This example is also discussed in Christopher Slobogin, “A Jurisprudence of Dangerousness”, 98 Northwestern University Law Review 1, 7 (2003).
For a theory of punishment along these lines, see: Don E. Scheid, “Constructing a Theory of Punishment, Desert, and the Distribution of Punishments”, The Canadian Journal of Law & Jurisprudence, v. X, n. 2 (July 1997), pp. 441–506. See also: Phillip Montague, Punishment as Societal Defense (New York: Rowman & Littlefield, 1995).
It may give one pause to consider that some anticipatory crimes create a very high percentage of false positives. For instance, drunk driving is presumably treated as a crime in order to prevent the future harm of automobile accidents. In fact, the vast majority of those drivers stopped and convicted of DUI (driving under the influence) would not have caused an accident if they had not been stopped. Thus, most people convicted of DUI are false positives. The justification for making drunken driving a crime is that, even if only a small percentage of drunk drivers ever cause accidents, the harm that is risked can be very great, namely, the maiming or death of one or more persons.
Initially, the United States held prisoners at Guantanamo without access to any court to challenge their detention. Combatant Status Review Tribunals (CSRTs) were first implemented in July 2004 in response to the Supreme Court’s Hamdi and Rasul decisions. The CSRTs conduct a one-time review of Guantanamo detainees to ascertain whether they are or are not enemy combatants by providing a venue for detainees to personally challenge (in a very limited way) their status as enemy combatants. Administrative Review Boards (ARBs) conduct annual reviews to determine whether detainees are of any further intelligence value and whether they present a continuing danger to U.S. security.
Michael Walzer mentions this view in Just and Unjust Wars 4th ed. (New York: Basic Books, 2006), p. 36.
Michael Davis has argued that some preventive detention can be justified as punishment for reckless endangerment. If a dangerous person is informed of his condition, but refuses to take measures that could eliminate his condition, then he is not exercising the care a reasonable person could be expected to exercise. As such, he is guilty of reckless endangerment—for which he deserves punishment. See: Michael Davis, “Arresting the White Death: Preventive Detention, Confinement for Treatment, and Medical Ethics”, APA (American Philosophical Association) Newsletters, v. 94, n. 2 (Spring 1995), pp. 92–98.
A possible example is that of Yaser Esam Hamdi. Hamdi was a U.S. citizen apprehended in Afghanistan and held as an “enemy combatant” in military detention in the United States. In June 2004, the U.S. Supreme Court ruled in Hamdi v. Rumsfeld that a U.S. citizen labeled “enemy combatant” could not be held indefinitely in a U.S. military prison without the assistance of a lawyer and without an opportunity to contest the allegations against him before a neutral arbiter. At that point, he was released to Saudi Arabia (October 11, 2004) without being charged. In exchange for this release, Hamdi agreed to renounce his American citizenship and to never engage in any terrorist activities. He agreed not to aid or assist the Taliban or any member of al-Qaeda or any terrorist organization designated as such by the United States. Furthermore, Hamdi formally renounced terrorism and violent jihad and promised to notify officials of Saudi Arabia and the U.S. Embassy in Saudi Arabia if he were solicited or came into contact with any known terrorists or terrorist organizations, or if he became aware of any planned acts of terrorism. Yaser Esam Hamdi v. Donald Rumsfeld: Settlement Agreement (September 17, 2004). I leave aside here all questions about the possibility and morality of “brainwashing”, reconditioning with or without psychotropic drugs, forceful indoctrination, hypnosis, brain surgery, and all other techniques of coercively reorienting a person’s beliefs, attitudes, and commitments.
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Scheid, D.E. (2008). Indefinite Detention for Mega-Terrorists?. In: Reidy, D.A., Riker, W.J. (eds) Coercion and the State. The Philosophical Foundations of Law and Justice, vol 2. Springer, Dordrecht. https://doi.org/10.1007/978-1-4020-6879-9_10
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