The "War" on Terrorism: What Rules Apply? (New York Forum #1)

Dec 17, 2001

The attacks of September 11 have been described, variously, as "crimes," "acts of war," or "genocide." Does characterizing the attacks in these different ways change the laws and moral norms that apply to a response? Do established international norms provide an adequate framework?

George Lopez

Good evening. Thank you very much for being here at this important event.

Our concern at the Carnegie Council is considered discussion of new events and new trends, and in this session, we wanted to focus on the boundaries of this new war: What is our understanding of not only the new violence and the new terrorism, but the responses to it?

We have a distinguished panel but in the interest of time, agreed to dispense with longer and formal introductions.

To my far left is Richard Falk, Professor Emeritus of Political and International Affairs at Princeton University's Woodrow Wilson School for Public Affairs. Many of you, of course, know Dick's work as a public intellectual and as an international lawyer writing on issues from human rights, to nuclear weapons, to, more recently, global governance.

To my immediate right, Fawaz Gerges, the Christian Johnson Chair in International Affairs and Middle Eastern Studies at Sarah Lawrence. Many of you will know him as a regular appearance person and a consultant to ABC News in these most difficult months, and his insights, his work, as well on Islam and the West has appeared with Cambridge University Press.

Following Fawaz will be Major General William Nash, to my far right, U.S. Army (retired), who most recently has worked for the Center for Preventative Diplomacy at the Council on Foreign Relations here in New York, where he also holds the position of Senior Fellow.

And, to my immediate left, Ruth Wedgwood, the Edward B. Burling Professor of International Law and Diplomacy and Director of the International Law and Organization Program at the School of Advanced International Studies at the Johns Hopkins University.

Each of the panelists has agreed to limit their initial remarks to about ten minutes. We will proceed directly from one to the other, and then we will try to take about thirty minutes of questions from the audience.

We will begin with Richard Falk.

Richard Falk

Thank you. Good evening.

From the moment of the attacks on the World Trade Center and the Pentagon, two requirements of a response seemed paramount to me: the urgency of an effective response that would restore American and world security by significantly reducing the mega-terrorist threat posed on September 11th; and secondly, shaping this response in such a way as to limit recourse to force to that which was reasonably necessary to accomplish the goal.

As I understand this panel, its focus is on the second requirement, taking the idea of an effective response more or less for granted.

In the search for limits, or what rules apply, we encounter at once the unprecedented nature of the threat posed by the attacks and its special challenge to our political and moral imagination.

To begin with, the transnational network of al-Qaeda has a locus that makes it difficult to fit a response within the normal framework of international law governing the relations among sovereign states, and beyond this, I think one has to come to the important conclusion that a law enforcement approach or deference to the United Nations does not help much, at least initially, to satisfy the important requirement of finding an effective response.

For this reason, I think, reluctantly, that recourse to war based on a rationale of self-defense seems like the only suitable response pattern, but it must be coupled with a special sensitivity to the second requirement — that is, that the recourse to war be understood as contained within limits that apply both to the means of force used and to the goals for which it is used.

Clarifying this sensitivity to limits and rules in terms that are operationally relevant is a major challenge. The unprecedented magnitude and savagery of the threat posed has a tendency, particularly here in the United States, to put all of our emphasis on effectiveness — in other words, to suspend any kind of critical assessment of whether the means used or the goals pursued are appropriate and relevant. I think that is the most serious danger.

This has, in my view, also resulted in a natural, but potentially dangerous, form of patriotism that celebrates our country as it is rather than as it should be, and makes criticism of policy seem to be a departure from the requirements of loyal citizenship. So in the search for limits and rules, we have to be aware that there is this difficulty in the background, that there is a mood of vindictiveness, that there is an intensity of patriotism, and there is this feeling of vulnerability, all of which operate in a way of suspending the search for what our moderator called "boundaries" in his opening statement.

What has been said by President Bush that is relevant, I think, is the importance of respecting civilian innocents. In his speech to the joint session of Congress, Bush said, and I quote: "Unlike the enemy, we seek to minimize, not maximize, the loss of innocent life." That is an important sentiment, but it has to be tested by the operational tactics that are relied upon in the pursuit of the war.

Up to this point, I think one can say that the notion that the threat would be reduced by waging war against Afghanistan, by removing the Taliban government, and by trying to destroy the al-Qaeda leadership are all proportional goals that are relevant to the reduction of the threat. That doesn't, at the same time, excuse the pursuit of those goals in a way that is not respectful of limits on the way the war is waged.

I was disturbed by some of the use of B-52 bombers, cluster bombs, and some of the seemingly irresponsible attitudes expressed toward the protection of prisoners, toward the way in which the Taliban would be treated if they were captured, and the effort to impose on our allies on the ground restrictions as to what terms of settlement they could reach in order to end the combat phase of the war.

So that I think one needs to take the sort of risks that show we are serious about respecting civilian innocents. If we rely mainly on high-altitude bombing, on operations that expose our side to very few risks and yet inflict heavy civilian casualties on the other side, one begins to wonder how serious that commitment is to civilian innocents.

We also need to rely on the "Just War" framework to assess whether the kinds of undertakings that occur in the post-Afghanistan phase of this war have any persuasive relationship to the threat that was posed by the attack on September 11th and by the Osama bin Laden visionary terrorism that lies behind it. In that sense, I am deeply opposed to any extension of military operations beyond Afghanistan. Any post-Afghanistan efforts to address this threat of mega-terrorism should rely on a law enforcement approach — that is, police cooperation with foreign governments, trying to interdict financial support, trying to use covert operations - in order to weaken the capacity of other portions of the global terrorist network to function.

It also would seem to me a tragic mistake if we extend the sense of what is terrorism to dealing with essentially national struggles that involve political violence directed against civilians on both sides, both by states and by their opponents. In this sense, I think it would be a very serious mistake to extend the war to the Israel-Palestine setting, and the statements by the White House have suggested just such an extension, which I think would be very dangerous.

And finally, I think if we really want to win this war, we have to begin to listen to the grievances that have been posed by the Islamic world and directed towards the United States, and our role particularly in the Arab world. To the extent these grievances are based on mistakes of our policy, I think they should be corrected, and I think we should be much more intent on trying to forge a foreign policy that is committed to an equitable and just world, and not one that seeks to maximize our own power and wealth at the expense of others.

If we want peace in the world, we have to commit ourselves visibly and credibly to justice, especially for those who are weak and vulnerable.

Thank you very much.

GEORGE LOPEZ: Thank you. We turn now to Professor Gerges.

Fawaz Gerges

Thank you, George.

In the same spirit as Professor Falk, I will try to tackle the question of what international rules, if any, apply in the current war on terrorism by focusing mainly on the historical, political, and moral dimensions of the questions put to us on the table.

Let me stress one critical point. Osama bin Laden and his ilk do not subscribe to any international rules in their unholy struggle against the United States. As you know, since the establishment of the so-called Islamic International Front to fight the Jews and Christians in 1998, a fatwah or religious ruling held that to kill Americans and their allies, both civil and military, is an individual duty of every Muslim.

In bin Laden's eyes, targeting American civilians is seen as legitimately defensive, rather than an offensive operation, because — and here I am quoting verbatim — "of the fact that Muslims believe that Jews in America have overplayed their hands in humiliating, degrading, and punishing Muslims."

"These attacks" — and again I am quoting — "on American targets are legitimate public responses by the Muslim youth who are willing to sacrifice their lives to defend their people and Islam."

Ironically, the Saudi dissident and his lieutenants claim that the existing international rules are inadequate to address their grievances because the United States dominates the international system, including its institutions, particularly the United Nations.

Well, regardless of the veracity of this particular claim, it sheds light not only on bin Laden's twisted logic in justifying his hideous deeds, but also on the need to affirm the moral and political importance of the existing international norms and rules.

As you know, in the midst of the storm, it is expected that some would lose sight of this simple, powerful premise and would be emboldened to advocate changing the rules of the state system and pursuing an ambitious strategy to end states or regimes that support terrorism.

Well, these advocates claim that if we do not try to topple the existing regimes that harbor terrorists, we will certainly encourage people who hate us so much to attempt to kill us in appalling numbers. They further assert that states waging "proxy war" are, by definition, bound by no laws and combating them on the contrary assumption is to risk entering a one-sided suicide pact.

What these advocates, in my view, do not remember, or tend to forget, is that one of the major goals of terrorists like bin Laden is not only to change the status quo, but also to get rid of the existing norms and rules that govern international diplomacy and conduct.

For example, bin Laden is on record stating that his goal is to destroy the very foundation of international relations, to overhaul the system of the nation states, and the power politics that punishes Muslims and keeps them down. His is a revolt against secular history and heritage.

Bin Laden had hoped that, by killing thousands of innocent Americans, the United States would lash out irresponsibly, and of course angrily, not only against bin Laden and the Taliban regime, but against many Muslims in that part of the world, thus precipitating a clash of cultures of civilizations.

Well, in my view, bin Laden has already lost his gamble because the United States did not play into his hands and did not pursue an expensive and ambitious strategy.

Of course, despite the many question marks that remain unanswered about the U.S. war against terrorism, I think the Bush Administration has tried very hard to use existing international institutions to, first, successfully define the September terrorist attacks as an act of war, and, next, to put together an international coalition to go after the al-Qaeda organization and the Taliban regime.

The legal arguments aside, the Administration's strategy has found many buyers in the world, including many in the world of Islam. Of course, as we know, many Muslims have many grievances against the United States and many Muslims remain very skeptical of the U.S. campaign in Afghanistan itself, even though they do appreciate the narrow focus and the limited nature of the U.S. campaign in Afghanistan itself.

The danger lies, in my view, as Professor Falk has made very clear, in the lack of clarity and ambiguity in U.S. strategy regarding the second phase of the so-called "U.S. war against terrorism." Will the Bush Administration, for example, buy the arguments of the hard-liners and expand the war into Iraq or other critical theaters in the Arab and Muslim world? Will it sacrifice the legitimacy principles of the political and strategic calculations? Will the foreign policy establishment be so intoxicated with the victory in Afghanistan that it loses sight of the complex realities of world politics and its much-needed restraining mechanisms?

Let me conclude by stressing another critical point. The efficacy of the U.S. war on terrorism cannot just be measured in terms of enemy casualties on the battlefield. This is a highly simplistic perspective.

This will be a highly prolonged, exhaustive struggle, whose many battlefields will be found not only in the courthouse of world public opinion, but also in the "floating middle" of Arab and Muslim public opinion.

The way and manner in which the United States conducts this particular struggle will ultimately determine the nature and character of resistance to its campaign in the Muslim world, and also the future supply of foot soldiers to the unholy war against the United States itself.

GEORGE LOPEZ: Thank you. Major General Nash?

William Nash

It is a great pleasure to be here. In fact, I am honored to be with this panel and with you all.

What I thought I would do tonight is to try to talk from the perspective of the soldier, in my case an ex-soldier, and talk to you about the laws and the rules that apply to the military forces that are engaged in combat in Afghanistan.

I will begin with a story. It's a story from June of 1969 when I was a fairly new lieutenant in my second week in Vietnam. I was on my first operation and in a rather confusing situation, a couple of subordinate organizations of the battalion that I was assigned to were on an operation in the jungle when we encountered a small number of Viet Cong soldiers. There was really not much of a fight going on but it was a very confused situation. We had obviously happened upon some scouts from a Viet Cong organization.

There was a mad scramble and some firing. Then I was listening on the radio when suddenly I heard my boss - what I called then my "big boss," the lieutenant colonel - who was in a helicopter overhead, say in a very strong, loud voice on the radio, "Stop that. It's murder." What a powerful impact it had on me.

The situation was some soldiers had cornered these Viet Cong who had then jumped into the water and were trying to hide. There was also some shooting going on. Now the perspective from the helicopter at 1,000 feet and the perspective of a soldier on the ground facing the gun are different. But from the colonel's perspective in the helicopter, the Viet Cong in the water were not a threat. They were, in fact about to become prisoners and to continue shooting would be murder.

Now, contrary to some other stories you have possibly heard about Vietnam, I will tell you that this striking example of command leadership in combat against wanton killing and ensuring that we took prisoners rather than bodies was a very, very important lesson to a young lieutenant. It fully complied with the training that I had, though it reinforced it beyond my wildest imagination, because in fact, that colonel, by his leadership, was teaching us how to fight properly and within the Law of Land Warfare.

Now, the Army has a manual on this. It's Field Manual 27-10, originally written in 1956 but updated in 1975. The text, though, that you use to teach this Manual, to give you confidence, is more current; it's from June of 2000.

It talks about "the purpose of providing guidance to military personnel on customary and treaty law applicable to the conduct of land warfare." It is inspired "by the desire" — and I am quoting from the Manual — "to diminish the evils of war by protecting both combatants and non-combatants from unnecessary suffering, safeguarding certain fundamental human rights of persons who fall into the hands of the enemy, particularly prisoners of war, the wounded, the sick, and civilians," and of course "trying to establish the conditions that will facilitate the restoration of peace."

Early on in the text it talks about the fact that military necessity is not an excuse for exceeding the rules of war because the rules had been written with due consideration of the issues of military necessity. I'll talk more about that in a moment.

So my view is that as we fight this war on terror, when we employ military forces in armed conflict, they must abide by the Rule of War.

And it's a real thing in the military. The latest publication of the Department of Defense Directive was in 1998 and it was very clear that our Department of Defense policy was that the Law of War obligations of the United States are observed and enforced, and we have effective programs to prevent violations in that we report incidents immediately.

This Defense guidance was translated by the Chairman of the Joint Chiefs of Staff in a further Directive in 1999 that directed his Director for Operations to ensure that the planning system provided for a review of plans and all rules of engagement for compliance with the law. It reviews all requests from the combatant commanders for deployment orders or their rules of engagement to ensure conformity.

It further charges the combatant commanders — and the combatant commander in this case in Afghanistan is General Tommy Franks — to be responsible for ensuring that he has an effective program within his command to prevent Law of War violations, and that all his training programs incorporate issues that are relevant to improve compliance with the Law of War and that his legal advisors are appropriately trained.

You will recall that early in the campaign, there was quite a splash in the media over a decision General Franks made not to fire on a target because he had received legal advice that that attack was of questionable legal authority. Now, without debating the merits of that decision, I would just argue that the very fact that that was in his mind is very significant.

There are three major rules or treaties that apply to the United States: the Hague Conventions of 1907; the four Geneva Conventions of 1949; and, even though the United States Senate has not ratified them, the 1977 Protocols of the Geneva Convention. The United States recognizes the vast majority of those protocols. There are some provisions with which we take exception but none of which have been a factor, I believe, in recent conflicts.

There are two major issues that these rules address: the first is the targeting methods and means of warfare, the packaged weapons and targeting decisions that are made; and second, the issues related to the protection and respect of non-combatants, be they the wounded, be they prisoners of war, or be they civilians.

The principles are very clear:

They talk about a "military objective," as opposed to pure military necessity, which would justify unlimited action. Military objectives, whether they're targeting persons, places, or objects, make an effective contribution to military action;

Rules that apply with respect to minimizing unnecessary suffering, incidental injury to people, or collateral damage to property;

The issue of proportionality — the loss of life and damage to property incidental to the attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained; and

That we must discriminate or distinguish between combatants and non-combatants, military objectives and protected people and protected places.

These are very important principles that are followed on a day-to-day basis by military planners.

Are there mistakes? Yes. Are there accidents? Yes. Is there faulty intelligence? Yes. But in each and every case these are very deliberate, measured actions that are judged not only for their military necessity or military need, but also for their legal ramifications.

I'll wrap up with a recitation of what soldiers are taught, the soldiers who are the sons and daughters of America. They are taught the Soldier's Rule:

  • Soldiers fight only enemy combatants.
  • Soldiers do not harm enemies who surrender; disarm them and turn them over to your superiors.
  • Soldiers do not kill or torture prisoners.
  • Soldiers collect and care for wounded, whether friend or foe. I have seen that. I have seen it in Vietnam, I have seen it in Iraq. Soldiers collect and care for the wounded.
  • Soldiers do not attack medical personnel, facilities, or equipment.
  • Soldiers destroy no more than the mission requires.
  • Soldiers treat all civilians humanely.
  • Soldiers do not steal.
  • Soldiers should do their best to prevent violations of the Law of War.
  • Soldiers report all violations of the Law of War to their superiors.

It's very serious. It's one that is enforced by commanders like the one I worked for in Vietnam over thirty years ago.

On the morning of February 28, 1991, I woke up after about two hours' sleep, just as the cease-fire in the Gulf War went into effect. We had reached our final objective at about 3:00 o'clock in the morning. I had been up for about two days. After getting my first cup of coffee, I walked out of my command vehicle and I saw a string of concertina around some people about 100 yards away and there were about 34 Iraqi soldiers inside this very hastily-put-up barbed wire enclosure. They were laying there.

As I looked over, about five soldiers were carrying blankets and food to those prisoners. They had been rounded up while I had slept and they had been placed there. There was one guard watching them. The soldiers were bringing blankets from our medical kits, food and a couple of cans of water to share with them.

I just give you that as an example of what the people on the ground do to live up to these rules that I've talked to you about.

Thank you.

GEORGE LOPEZ: Thank you, Bill. Professor Wedgwood?

Ruth Wedgwood

I thought I would do a few things. One is to talk about some of the particular difficulties that the al Qaeda/bin Laden effort poses for liberal globalization. Secondly, I would like to talk about some of the building blocks in multilateralism that we are going to rely on, but also on the limits to multilateralism, and, in particular, the debate about whether this is a crime or whether this is war. Then, I would like to close with some adjustments in our domestic law that may be necessary in trying to meet the rather unprecedented nature of the threat that bin Laden has posed.

I think many of us felt a particularly personal sense of grievance when the events happened in downtown Manhattan — not just because we are all New Yorkers, but because it seemed to exploit what was the most liberal quality of our own society: we value privacy, we value freedom of movement, we are a deliciously multi-ethnic democracy where no one looks like they don't belong, and therefore there is nobody who is suspected as lurking or sleuthing around, because everybody in Manhattan is of a different hue and nature. So I think in some ways the attack that seemed so surreptitious was this kind of jujitsu of what we most value about our own political culture.

It was also an exploitation of globalization. We don't check people at the borders anymore because, under the Schengen Agreement, under WTO, borders don't matter. Alienage hardly matters. It seems archaic and atavistic to suppose that the distinction between citizen and alien matters all that much.

And on September 11, I think we were rather taken up short to suppose that anybody would so badly misuse the generosity of spirit that American society is about and that the UN political culture is about.

But things happened as they did, and now what we are faced with is a very trying period in attempting to discern the presence of folks who have failed to abide by yet another fundamental international norm, which is the duty of combatants to always distinguish themselves from civilians so that they will not by their own surreptitious identity endanger civilians. They shouldn't shoot at civilians and they shouldn't mask themselves as civilians.

The "bookend" violation by bin Laden is what has created our dilemmas here.

In the nature of our response, the UN has been doing a lot of, I think, very helpful things.

There are a number of treaties, which were begun in the 1970s but have continued into the late-1990s, trying to create the idea of international crime, whether it was airplane hijacking and airplane bombings in the 1970s, or attacks on diplomats, or hostage-taking, or torture.

And then, in the last part of this decade, two new treaties that forbade terrorist bombing and the financing of terrorism. What was most interesting in these latter treaties is they finally put to rest the idea that politically motivated violence should be considered immune. Rather, they said, no matter what your motivation, some kinds of attacks are so heinous that they can't be permitted. And so they created a duty on the part of every nation state to arrest such an offender and either try him or extradite him and it made these crimes international.

Then, in reaction to the 9/11 bombing, the Security Council met. The Council has rather peremptory authority — some would debate its limits — but rather extraordinary authority within the UN system. They did two things.

One is that they recognized the attacks were an armed attack on the U.S. which triggered a right of self-defense. There might have been debate among law professors before as to whether you could have a state of war with a non-state actor but in this case, the Security Council clearly ruled that the inherent right of self-defense was one that was available to the U.S.

The second thing they did was to make some law in their Resolution of September 28th, saying that any country that harbors terrorists or finances terrorists or aids and abets them as accessories before or after the fact is complicit and is itself committing an international crime.

In the Cold War, lots of countries had their surrogates, so I don't think you had quite as much of a demand for compliance by mentors and hosts, but now, in the period after the Cold War, there is a new consensus that this kind of instigation of violence is really not congenial and not useful to international commerce or culture.

So there has been norm-setting by the UN. There has been a blessing of a greater latitude of reaction in the right to go against countries that act as harborers and hosts.

I think if we look back at the profound mistake we may have made throughout the 1990s, it was not immediately before September 11th, but rather the decade-long period when bin Laden was running hundreds and thousands of young men through his camps- training them, brainwashing them or allowing them to brainwash themselves — and preparing them for work in the Philippines, in Malaysia, Indonesia, and all through the Middle East and Central Asia. And now to put the toothpaste back in the tube seems a very belated reaction and one that we are going to have a great deal of difficulty with.

So I wish that the Security Council Resolution might have come a bit earlier, that our own recognition that training is not harmless might have come earlier.

On how we are going to approach it, we are clearly going to have to rely on our allies and our medium-/half-baked friends for coordinated police work in trying to figure out who in their societies may be members of al-Qaeda or cooperating groups. And there's no way that we can substitute ourselves for those police agencies, other than to urge them on.

And secondly, as seems to be the current U.S. strategic dilemma and posture, we will rely on surrogate ground forces whenever we have a mortar fight in unusual areas. Part of our problem at times in seeing full compliance with the Law of War on the allied side is that we don't necessarily control these people like the Northern Alliance or command them. We can persuade them and urge them and try to monitor them but they don't work for us like with well-trained American ground forces.

So I think we are not going to have an entirely pleasant war on our own side at times.

But one of the greatest problems intellectually, I think, is to decide whether to regard this in the paradigm of crime or of war, and some of the most heartfelt conversations going on in New York and Washington and throughout the legal academy are how to think about reconfiguring the architecture of our civil liberties law and our criminal law and our national security law.

It used to be that the water's edge was the bright line that divided foreign affairs power from criminal justice. The FBI would do investigations onshore; CIA would do them offshore.

The FBI could send a friendly lead to an embassy to be followed up with the permission of the host government, but, in general, its collection capacities abroad were quite limited. Now, with a network that operates onshore and offshore at the same time, you need the pooling of information between criminal justice and intelligence agencies. Its a conclusion that many of us may come to reluctantly, but, at least in my case, come to without seeing any real alternative.

As one of my friends put it, it may take a network to catch a network, and the way that you discern the real-time operations of people who use false identities and fly back and forth requires a kind of puzzle palace of small pieces of circumstantial information, and if the two halves of the government can't talk to each other, there is no way to put it together.

Secondly, there is the very dismaying question of who do you question and what do you do about folks who may possibly have within their community somebody who means no good. In old-fashioned wars, there used to be the harsh rule that any enemy alien could be interred. German Jews in London, for example, were interred initially during World War II because the British thought they were more German than Jewish at the time. It gradually got sorted out but it must have been rather shocking to people persecuted by Hitler to discover that they were considered predominantly German.

In this case, there is that same-felt necessity: How do you go about figuring out in advance where there may be a problem is not quite so easily done because there is no state enemy and you can't inter everybody who has ever come from a Middle Eastern country who still lacks citizenship. That would be harsh and cruel and unwarranted.

But I think some of the measures that have been taken in Washington that may rankle — the idea, for example, of interviewing the young men who have come in on transit visas since 2000 — are, in a sense, an attempt to meet the same-felt need, that one can't always be reactive, one has to be preventative.

And finally, the hardest debate, I think, has been about how one might think of trying or detaining some of the people caught from al-Qaeda. We are used to using civilian force. We are used to using international tribunals. I think many of us at this table were great supporters of the Yugoslav Tribunal and the Rwanda Tribunal and have high hopes for what international courts may become. But at the same time, in the middle of an ongoing conflict, to suppose that we are going to share full intelligence with international judges is probably not realistic.

And so too in civilian courts, those of us who either used to be criminal lawyers or taught criminal law and evidence are dismayingly aware of how little juries are actually allowed to hear. They can't hear anything that is an out-of-court statement; they can't hear anything that is hearsay. Even things you rely upon in your everyday life for making serious decisions often cannot be introduced into evidence in court. So I think part of the felt necessity for innovating on the style of court is to allow fact finders to consider what information there is that is available to discern who has committed a war crime by targeting civilians and who has not.

One of the projects that I think will be interesting for the next several years is to think through whether there is a civilian alternative to military tribunals. Could you invent a civilian court that would allow hearsay, that would protect intelligence, that might even do without a jury? The difficulty in that is that it would probably require a constitutional amendment. I'm not sure we're up to that yet. So at the moment we are left with the rather stark choice of paradigms — between the old-fashioned O.J. Simpson-style civilian court, or the seemingly harsh "M" word, the military word, which has probably never quite recovered from the Vietnam schism between civil society and the military, but which I think, if gussied up with lots of civilian bells and whistles, like open trials and civilian judges and choice of defense counsel, can be made to seem much more consistent with a liberal culture than not.

And finally, I think one of the greatest challenges for our foreign policy — and here, as a Democrat, I say this with great sorrow about the last ten years — is that we cannot really continue to conduct an incident-by-incident, reactive foreign policy. We have to be aware that preemption is necessary, anticipation is necessary, that you don't just do this in an incident-specific way.

The one paradigm that may translate from war is the following: In real war, in old-fashioned war, with uniforms and people who stand in the battlefield and shoot each other, you don't just react to hostile acts or manifestations of hostile intent; you also react to hostile forces. I say so reluctantly, but we have to be a bit more Israeli in our approach, with care and proportionality and utter concern for civilians, but nonetheless to treat this network as an army.

Questions and Answers

GEORGE LOPEZ: My thanks to our panelists for a diverse array of responses to the question "what rules apply?"

And now we hear questions from the audience. We have grouped them a bit. I will read two or three of these at a time and then ask our panelists to take a shot at one or two, but each panelists shouldn't feel the compelling need to respond to all three.

QUESTION: What relationship must exist between criminal networks and a government in order for us to justify attacking the government or the state?

A second question: A lot of the criticism of U.S. foreign policy arrives on the basis of its inconsistency in the use of military force. How can we now justify military force to liberate a country or its repressive regime when we ourselves have been instrumental in the selling of weapons and supplying of various factions that have been part of that regime in the past?

And lastly: According to "Just War" theory, the principle of discrimination asserts that force should be directed only at military targets. Does the fact that the target of this war is neither a state government but a transnational network make a difference in applying this principle?

Three tough questions to begin.

RUTH WEDGWOOD: I think the first of those questions is going to be the toughest because there are a lot of situations of accommodation where some countries let criminal networks flourish because it's too hard to suppress them, and maybe they get a little cut of the revenue, or they fear that if they press down hard on the network, they will find themselves overthrown.

I do think many of our putative allies in the Near East have oftentimes exported their problems and created a certain latitude of operation in the hope that all these angry young men will go abroad and do their thing in Germany, or America now, and not be too direct at home. So it's going to be a tough question, and there have been lots of complicit governments.

So I guess on this there's really not much better than case-by-case. This attack certainly got the attention of all countries around the world that the old tolerance is probably not acceptable.

You face the dilemma really of territorial sovereignty. If you want a country's territorial integrity to be respected, then the country itself has to discharge its duties to police its own borders. If it fails to therefore control a network that is exporting terror, it becomes, if not complicit, certainly almost waiving its own right to have sovereign immunity of its territory.

So I think we're going to just take them in rank order.

RICHARD FALK: Well, just let me say a word about the inconsistencies in U.S. foreign policy because I think that is something the rest of the world sees as a very serious basis for questioning the leadership the United States has been exercising in international affairs.

I think even on the issue of terrorism we are quite vulnerable. If you think about the support for some of the Cuban exile activities, that would certainly qualify by most definitions of terrorism; for the contras that were fighting against the Sandinista regime in Nicaragua during the 1980s, where the International Court of Justice found that the CIA was training some of the contras in methods that seem to be very close to advocating torture; and in the administration of the School of Americas, where we have been, in the name of counterinsurgency and in supporting what was called in the Reagan era "freedom fighters."

So in order to clarify the normative standards of a policy that is credible to the rest of the world, we have to try much harder than we have in the past to be non-selective. One part of that is to recognize that when states attack and use violence against civilian society. It is not only non-state actors that are capable of terrorism.

FAWAZ GERGES: I want to add one footnote to Professor Falk's argument.

It seems to me that the thesis "United States versus Osama bin Laden" is a great distortion and simplification of the highly complex reality in that part of the world.

As you know, none of the hijackers came from Afghanistan. None of them really gave a damn about this bleeding country. Most of their hearts and passion lay somewhere else in the heartland of Islam. And yet, we are fighting a war far away from the underlying causes and the oil wells that gave this particular conflict its cause in the first place.

What I am trying to say here is that this is a much bigger conflict than "the United States versus Osama bin Laden." The polls we have from that part of the world show that while the overwhelming majority of Arabs and Muslims reject bin Laden's brutal and terrorist tactics, they overwhelmingly tend to be receptive to his message. Bin Laden's message resonates in the political imagination of most of the overwhelming numbers of Arabs and Muslims.

At the end of the day, anti-American sentiment has become the staple of Arab and Muslim politics. In fact, you cannot find a single social group in that part of the world that has positive views about America, American institutions, and American foreign policy. You may simply dismiss this particular anti-American sentiment as irrational and part of the hatred for American democracy and values, and so on and so forth, as some commentators would like us to believe, or as part of the Arab world's inability to really join modernity, which is partly true. Or we also may somehow raise critical, complex questions about America's imperial role in that part of the world.

What has the American foreign policy establishment done in the last forty-five years that has antagonized most of the rising social classes in that part of the world? And, as you know, the particular anti-American sentiment is neither intrinsic nor natural.

In the first part of the 20th century, America was seen as a progressive island, as a shining city on a hill, as one of the most progressive powers in the international system. Even today, under the thin layer of anti-Americanism lies a great deal of fascination with the American idea and the American dream.

The question in my mind isn't as irrational as some would like us to believe. I hope that at the end of this particular crisis we not only address the social, economic, and political questions in that part of the world, but we also take stock of what American foreign policy has done in the last forty-five years in that part of the world.

QUESTION: The first: To what extent was the United States within international law in forgoing the opportunity to go before the UN Security Council for a Resolution authorizing the use of force, and to what extent is our action justified or not justified as a provision of self-defense under the UN Charter?

Another question about military tribunals: What is the extent to which military tribunals as currently outlined by the Administration stand in opposition to some dimensions of the U.S. Army Manual for the fighting of war and the conduct of soldier responsibility in those wars, as has been discussed by Major General Nash?

WILLIAM NASH: Well, let me just make a comment.

First of all, the military tribunal is not a military idea. Some of us think that is an important point. The military tribunal that is defined in the Executive Order is not directed toward soldiers of the United States and it is not in compliance with military justice; it is not in compliance with anything associated with the dealings of persons captured during war or any related actions. So it is a system by which the United States will address those non-citizens who are believed to be a threat to the United States. I'll let Ruth talk about the technicalities.

Just a quick comment on "Just War" theory with respect to transnational networks vis-a-vis states and the issue of going to the UN. I personally would have liked to have had a UN Resolution but I also am very comfortable with the United States' action under the provisions of self-defense.

On the transnational networks vis-a-vis a state, I would just add the point that if it acts like a threat, tastes like a threat, feels like a threat, it probably ought to be treated like a threat. I could have used a lot of different words other than "threat."

But my point is that I am personally very comfortable with the fact that it is a state-like entity that has adopted a belligerent status. It is organized and it is led, and the only criteria that normally matters is it does not wear a uniform that is easily recognizable. But that does not prevent us from being justified in attacking.

RUTH WEDGWOOD: In the best tradition of being a disobedient panelist, let me pick up on Professor Gerges' point from before.

While we're thinking through the larger milieu in which this conflict occurs, there are two more points I think that need to be made.

One is to question the legitimacy of Europe's continuing and rather truculent rejection of the Arab world and the Islamic world. Just taking Turkey as the case in point, yes there are economic issues, yes there are human rights issues, yes there are issues in Turkey's entry into Europe and the European Union, but a lot of it is Charles Martel and the Battle of Tours and the Saracens and the Ottomans in Hungary and Austria, and even Bozanic. Europe is a Christian union, and until that rather dull version of jus sanguinis, or the Law of the Blood, is reexamined, I think that Arabs and Muslims in the Middle East will feel a certain sense of cultural imposition and cultural condescension which will not increase their congeniality towards Europe or the United States.

A final last, disobedient point: I do think the other challenge is for the Islamic intellectual community in North America and Europe to regain its voice of moderation, and not leave it all to a few brave daredevils to speak out.

Now, as to your question on military tribunals, it's true that no greater pain has been caused by this proposal than to the military lawyers who are used to trying cases their way under the Uniform Code of Military Justice.

But it is also true that historically the Law of War has not looked kindly on what President Lincoln called "jayhawks, bushwhackers, and saboteurs." Traditionally, if you were out of uniform, you could claim nothing under the Law of War. That's a contentious matter under the 1977 additional Protocol of Geneva, which we have not ratified, but which was drafted at a time that was sympathetic on the part of many countries toward wars of national liberation.

But the tribunals, I think, are an attempted cross-breed to the fact that this is not just trying a shoplifting case by a G.I. in Fort Bragg, this is about wartime degradations in the middle of conflict, and thus the latitude on what kind of evidence you could let in, thus doing without a jury or any kind of real panel of your peers, and thus the protection for intelligence information.

But I think the hope is to "civilianize" them so they look familiar. I think the press got some of this firestorm going, and I don't think that the Administration did a terrific job in rolling out their idea. So the press tended to call them "secret tribunals," and I think they were meant to be as open as possible.

RICHARD FALK: Well, I think Ruth has given as strong a rationale as is intellectually possible for military tribunals of this sort, but I don't think it is quite strong enough, at least to be persuasive.

The reason is it presupposes the kind of faith in the wisdom, restraint, and sense of fairness of a non-accountable leadership. It goes against the whole idea of checks and balances that governs the way in which law should be applied. The President has the authority to initiate these tribunals in secret and impose capital punishment with very undefined rules of evidence, and with no reviewing, no appeal. Now, this is, it seems to me, very dangerous as a precedent. If we do it, why shouldn't other governments that are faced with political struggles do it?

Secondly, with our present Attorney General, you have to have quite a commitment to a religious view of politics to feel he would use these military tribunals as Ruth would have us suppose they will be used. He doesn't run them, but he may run the President as far as the invoking of them is concerned.

It seems to me that we don't want to put our liberty and our reputation in such a non-transparent, unnecessarily suspicious, suspect frame of reference, because what the rest of the world is likely to see to the extent they are used is that we just don't have the evidence to convict people by procedures that would, for instance, adopt the Uniform Code of Military Justice, that we are using this as an expedient for weak cases. And again, we are fighting a political war that depends on how others view us, and that is something we should take very seriously.

These military tribunals confirm the most suspicious. It gives credence to the view that we know best about everything and we don't have respect for a framework where our actions are subject to judgment by others.

So I think it is a very serious mistake that we have embarked on this path.

GEORGE LOPEZ: Let me interject a bit as your Chair and take some license with a few of the good questions that have been brought to us near this topic.

If military tribunals are not the full answer, if we know that there needs to be some rules of law in dealing with terrorists but terrorists vary from locale to locale, and we may, in fact, be on the beginning of a global search and a global legal/military/criminal path towards dealing with networks, what kinds of trials are going to be appropriate for suspected terrorists and in what kinds of venues should they occur?

RUTH WEDGWOOD: I think it will vary by the case. European countries will often want to try folks who they find in their own home ground, in part because they differ with us profoundly on the question of capital punishment, although oftentimes their claim is overstated because even in European human rights law there is an exception for wartime in Protocol 6 of the European Convention on Human Rights that does permit capital punishment. But I think it will end up being, as most things in life, a combination of principle and politics and the exigencies.

While Dick and I weigh this with sobriety, there are many, many instances where it just isn't possible to put on a civilian-style trial in open court because you can't disclose everything. It's the irony of American justice. You can close a juvenile delinquency proceeding, but you cannot close an adult criminal trial. So whether it's the engineering testimony about the stability of the World Trade Center towers in the trial on the 1993 bombing, or the al-Qaeda training manual — which I wish they didn't know we knew, because it gives counter-surveillance techniques and methods of escape; it gives vignettes of "do's and don'ts" for good beginning terrorists.

It would be better if they didn't know what we knew about them. Bin Laden has changed telephone systems half-a-dozen times and whenever we act on information openly that he knows the source of, he will change his method of operation, and then we will lose track of him for two or three months.

WILLIAM NASH: I want to jump in on something that Dick said. We are fighting a political war now. Some of us believe that all your wars are fought for political reasons, but that is a different discussion.

The perception of fairness and justice is very important to the long-term success in this fight against terror and in developing or reestablishing our position in a large part of the world.

I also believe there are ways to establish methods of review in a way to give not only the citizens of the United States but the citizens of the world confidence that there has been a just and fair trial. I don't think we've found that quite yet.

On the other hand, we haven't done it yet, so don't give up all hope.

GEORGE LOPEZ: Let me go to this last round, which I think I would characterize as the longer term, or the medium-to-longer term, or the "at the end of the day" questions.

At the end of the day, do any of you envision public mechanisms or legal mechanisms where the grievances raised by bin Laden and others in the Muslim world against the United States might be accurately assessed and addressed?

At the end of the day, when the conduct of this war was much like that in Kosovo, and to some extent Iraq, largely conducted from the air, can we talk as credibly as we have about collateral damage and injuries and death to civilians?

And finally, at the end of the day, with President Bush having drawn a veritable line in the sand and marking those who are with us and against us in terrorism, has that not loosened for those who are with us the rules by which conflicts of a variety of kinds are fought, and the laws therefore become much more floating?

RUTH WEDGWOOD: If I could just address the first part on the public airing of grievances, I think one only has to open the New York Review of Books to see that. I mean, everybody agrees that the Saudi regime is living on borrowed time, that it doesn't allow political dissent or political representation; everybody agrees that Egypt has no business imprisoning people like Ibrahim Saeed, who are wonderful moderate intellectuals, and that they have exported their unemployment problem in this form; everybody agrees that there are any number of regimes in the Middle East that are loathsome and troublesome, questions how to change them, and how not to become too dependent on the oil they have to sell so that one doesn't dare change them. But I think if one wants to have a Truth Commission about Middle Eastern politics, sure, but I think the substance of the complaints of younger cohorts in those countries is well known.

And then, on the inevitable question of collateral damage from the air, it is a misnomer to suppose that ground wars are any cleaner than air wars. Often they are quite the opposite.

Talk to some pilots before you draw a judgment. They will often tell you that if you are doing targeting that's based upon fixed geographical coordinates, that it may not matter that much where you shoot from, and if you shoot a little higher up, then the pilot is not completely distracted as he tries to get an accurate bead on his target; whereas if he is low down and dodging antiaircraft, then civilians can suffer a different kind of harm from simply the erratic evasion of his own felt danger.

We did a conference recently in Washington with Michael Ignatieff, having human rights lawyers and military lawyers talk to each other about technology in warfare to try to iron out in operational terms how do you really make palpable the felt norms that sound good on paper but that are hard to apply.

RICHARD FALK: Let me follow on just a couple of the points that Ruth Wedgwood just made.

It seems to me the essence of the question as I heard it was not what the Middle Eastern governments were doing wrong, and therefore how we would like to see them do better; but rather, what we were doing wrong in relation to the Arab world. I think that is a much more difficult inquiry.

It is very easy to say we'd like to see these regimes be more democratic. We have been, of course, very comfortable until very recently with the Saudi regime, even though it has one of the most fundamentalist and repressive governments in the region.

And I think the hard question, and the point that Professor Gerges made so clearly — that the resonance of the message of Osama bin Laden is tied very much to the sense that the United States has been responsible for a lot of suffering in the region, and particularly the Palestinian ordeal. Until that is faced in some way that results in a fair solution that gives both people independent sovereign states that are equivalent in every sense, including being concerned about Palestinian security as well as about Israeli security — until that happens, it will be a very long road paved with illusions to think that we can satisfy that Arab "floating middle" that you referred to by complaining about human rights violations in the region.

That's why I think this patriotic mood, however understandable, is going to do us a disservice if it discourages self-criticism, because unless we can see ourselves critically and correct that which should be corrected and maintain that which should be maintained, I feel we are on a road that may deal with the al-Qaeda network but won't deal with its successors. And so I think it is a very serious challenge that we face at the moment.

FAWAZ GERGES: Let me address this question by making it very clear that there are some serious internal problems in the Arab and Muslim world and these internal problems cannot be addressed, cannot be tackled, cannot be resolved, except by Arabs and Muslims.

There are limits to what the United States can do. At the end of the day, in the final analysis, the United States is not responsible for the perpetuation and consolidation of authoritarianism and paternalism in the Arab world. At the end of the day, the United States is not responsible for the inability of the Arabs and Muslims to fully join modernity, to create and construct modern liberal institutions. At the end of the day, the United States is not responsible for the inability of Arabs and Muslims to create mechanisms which mediate between the individual and their governments.

Having said so, however, it seems to me that we not only have been very comfortable with some of the bloodiest deeds and regimes, be it Saudi Arabia or Saddam Hussein in the 1980s, or even Osama bin Laden himself at a certain historical point when the war was taking place in Afghanistan, but our leaders never really hesitated from going to bat against some of the most corrupt leaders in that part of the world.

Our leaders, by the way, have been on record stating that democracy is not in America's primary interest in that part of the world. Many people in that part of the world believe that somehow the United States does not practice what it preaches, and this is the message that Osama bin Laden and his ilk have been trying to exploit and manipulate to recruit tens of thousands of foot soldiers in the last ten years.

And again, to come back to Richard's point, I do not think the United States should impose its particular vision on that part of the world because their destiny at the end of the day is their own responsibility. I do hope that the United States, at least when this crisis is over, takes stock of its own policies, in the sense of trying to nudge and help its pro-Western Middle Eastern regimes — in particular, Saudi Arabia, Egypt, Jordan, Kuwait — at least to open up the political space, to integrate the rising social classes into the political field, to reform the bloody consolidated authoritarian structures, at least to give the 60 percent of the population who are between the ages of fifteen and twenty-five the particular hope that the United States is not against democracy, that the Arab and Muslim world is not somehow outside the realm of history, that somehow it is in the interest of the United States that reform takes place in that part of the world.

WILLIAM NASH: On the question about the difference in rules for soldiers' conduct in a war from the air as opposed to the ground, I would say basically there is no difference in the rules.

The problem from the air is the fact that you are dealing with targeting situations from remote sensors almost all the time. I'm not discussing close air support for ground forces engaged in direct combat. I'm talking about the attacks on command and control, air defense, and infrastructure. It is very difficult.

I guess one of the saddest examples of that does come from the Iraq War where we hit a bunker that 300 civilians were sleeping in. The whole story of that bunker is that it was protected by wire, it was guarded, and the reconnaissance information was that here was a military installation, with all the signs of a military installation.

What we did not know was that Iraqi civilians slept in there at night for protection. It appeared from all the intelligence that it was a military facility. We hit it at night so there wouldn't be as many people in there. But we didn't know that other piece.

There have been other examples. Now, Dick, I've been waiting. The B-52s are dropping precision munitions in all of the cases where they are near civilian personnel. They did do some dumb bombing on some of the ridges used by Taliban forces. But the B-52 also uses very accurate satellite-guided missiles, and a B-52 can just carry a lot of them and get them out, but it's not a carpet bombing-type situation.

The cluster bomb issue is one that I rolled over about a couple of times, but it certainly is a very effective weapon system. I think that once you do the studies, you'll find that it was used mostly in rural areas where there was very little impact on populated area.

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