Portal de Periódicos da CAPES

Terrorism, Counterterrorism, and the Rule of Law

2011; Taylor & Francis; Volume: 23; Issue: 5 Linguagem: Inglês

10.1080/09546553.2011.622699

1556-1836

Paul Kamolnick,

Terrorism, Counterterrorism, and Political Violence

Click to increase image sizeClick to decrease image size Notes Indictment, United States v. Usama bin Laden et al., S(2) 98 Cr. 1023 (LBS) (S.D.N.Y. Nov. 4, 1998). See, esp. Declaration on Measures to Eliminate International Terrorism, UN General Assembly, Res. 49/60, 9 December 1994, http://www.un.org/documents/ga/res/49/a49r060.htm (accessed 14 June 2011); International Convention for the Suppression of Terrorist Bombings, UN General Assembly, Res. 52/164, 15 December 1997, http://untreaty.un.org/cod/av1/pdf/ha/icstb/icstb_ph_e.pdf (accessed 14 June 2011); International Convention for the Suppression of the Financing of Terrorism, UN General Assembly Resolution 54/109, 9 December 1999, http://www.un.org/law/cod/finterr.htm (accessed 14 June 2011). See: United States of America v. Omar Ahmad Ali Abdel Rahman, et al. S5 93 Cr. 181. The “blind sheikh” is presently serving a life sentence, incarcerated at FMC Butner Medical Center, part of the Butner Federal Correctional Institution, Butner, North Carolina, for his convictions for the 1993 World Trade Center bombing, seditious conspiracy to blow up several New York City landmarks, and plots to assassinate U.S. politicians. Convicted of murder and conspiracy to murder for the 1993 World Trade Center bombings and the 1995 Bojinka plot to simultaneously blow up twelve trans-Pacific airliners, he is in solitary confinement for life, without parole in the super-max prison, Florence, Colorado. Convicted in 2006, Moussaoui pleaded guilty to conspiracy and is serving a life-time sentence without parole in the nation's super-max prison in Florence, Colorado. Owhali, Mohamed, Odeh, and el Hage were convicted of murder in the 1998 East Africa embassy bombings and are serving life sentences without parole at the super-max prison, Florence, Colorado. They were named, along with Usama bin Laden and ten others, in the federal indictment United States v. Usama bin Laden et al., S(2) 98 Cr. 1023 (LBS) (S.D.N.Y. Nov. 4, 1998). McVeigh was convicted of murder and conspiracy and sentenced to death for the April 19, 1995 bombing of the Alfred P. Murrah federal building, Oklahoma City, Oklahoma, that killed 168 persons, including eight federal law enforcement agents. Until 9/11, this was the worst case of terrorism in U.S. history. The so-called “Unabomber,” Kaczynski was convicted in federal court on three counts of murder and several for maiming, and, owing to a plea-bargain, sentenced to four life terms in the super-max prison, Florence, Colorado, with no possibility of release. See for example: Matt Waldman, “The Sun in the Sky: The Relationship between Pakistan's ISI and Afghan Insurgents,” Crisis States Research Centre, Discussion Paper 18, June 2010, http://www.foreignpolicy.com/.../1000613_20106138531279734lse-isi-taiban.pdf (accessed 18 July 2010); Haider A.H. Mullick, Pakistan's Security Paradox: Countering and Fomenting Insurgencies. Joint Special Operations University Report 09-9, December 2009; Mark Mazetti, Jane Perlez, Eric Schmitt, and Andrew W. Lehnen, “Pakistan Aids Insurgency in Afghanistan, Report Asserts,” New York Times, July 25, 2010, http://www.nytimes.com/2010/07/26/world/asia/26isi.html (accessed 26 July 2010); Rangin Dadfar Spanta, “Pakistan is the Afghan war's real aggressor,” The Washington Post, August 24, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/08/22/AR2010082202272. html (accessed 24 August 2010); Bill Tarrant, “Special Report: Why the U.S. mistrusts Pakistan's Spies,” The New York Times, 4 May 2011, http://www.nytimes.com/reuters/2011/05/04/world/asia/news-us-binladen-pakistan-isi.html (accessed 5 May 2011); Adam Entous and Siobhan Gorman, “U.S. Slams Pakistani Effort on Militants,” The Wall Street Journal, 6 October 2010, http://online.wsj.com/aritlc/SB10001424052748703298504575534491793923282.html (accessed 6 October 2010); Ryan Clarke, Lashkar-i-Taiba: The Fallacy of Subservient Proxies and the Future of Islamist Terrorism in India, March 2010. The Letort Papers. Strategic Studies Institute, U.S. Army War College, Carlisle, PA. In Western just war theory, jus ad bellum and jus in bello deal, respectively, with the right to go to war, and rightful conduct in war. Charter of the United Nations and Statute of the International Court of Justice, San Francisco, 1945. Available at: http://treaties.un.org/doc/Publication/CTC/uncharter.pdf (accessed 17 May 2011). Ibid. I clarify this point in due time. Williamson's survey of the history of attempts to define the concept terrorism (Chapter 2), while comprehensive, evidences the “anti-imperialist” bias identified above. For example, while she is correct to claim that quantitatively speaking, far fewer deaths are attributed to terrorist acts than conventional wars (3,000 versus 300,000 during the 1990s; see pp. 34–35), she fails to note that it is the quality of terrorism as psychological warfare—its unpredictability, will-crippling fear, and horrific personal costs—which are not sufficiently captured in a quantitative comparison. Second, she significantly underplays the degree of scholarly consensus reached on defining terrorism and derives an unwarranted conclusion from such (see p. 70). Available at http://georgebush-whitehouse.archives.gov/news/releases/2001/09/print/20010912-8html (accessed 15 July 2011). Recall that the President was visiting an elementary school in Florida and in the midst of reading with children when he was informed that a second jet had hit the World Trade Center towers and that the United States was under attack. This last sentence seems to be either an erroneous construction or translation. It seems logical to construct it in the following sense: “But obviously the attacks that were planned [for] yesterday were executed yesterday.” A tightly-written 98-page monograph (73 pages of text, and 25 containing its 175 endnotes), reprinted as The Marshall Center Papers, No. 5, http://www.marshallcenter.org, though originally published in the U.S. Naval War College's Law Department International Law Studies series as well as the Israel Yearbook on Human Rights. See esp.: “Responsibility for the Terrorist Atrocities in the United States, 11 September, 2001.” Official Press Release, 4 October 2001. British government. http://212.150.54.123/documents/documentdet.cfm?docid=56 (accessed, 26 July 2011); Indictment, United States v. Usama bin Laden et al., S(2) 98 Cr. 1023 (LBS) (S.D.N.Y. Nov. 4, 1998). And see explicit references to the Taliban as facilitating the Al-Qa'ida terrorist sanctuary in various post-1998 East Africa embassy bombings to pre-9/11 UN security council resolutions: S.C. Res. 1189 (1998), 13 August 1998; S.C. Res. 1193 (1998), 28 August 1998; S.C. Res. 1214 (1998), 8 December 1998; S.C. Res. 1267 (1999), 15 October 1999; S.C. Res. 1333 (2000), 19 December 2000; S.C. Res. 1363 (2001), 30 July 2001. Proclamation No. 7463, 66 Federal Register 48, 199 (Sept. 18, 2001). Authorization for Use of Military Force, Public Law No. 107-40, 115 Stat. 224 (2001). S.C. Res. 1368, September 12, 2001; S.C. Res. 1373, September 28, 2001; G.A. Res. 56/1, September 18, 2001. Cited above, and in endnote 2. See esp. S.C. Res. 1267 (October 15, 1999) and S.C. Res. 1363 (July 30, 2001). See SC. Res. 1368 (Sept. 12, 2001), 1373 (Sept. 28, 2001), and 1377 (Nov. 12, 2001). Nicaragua v. U.S., Merits, I.C.J. Reports 1986. The Charter in limiting state behavior—Article 2(4)—also empowers states to defend themselves, and this defense is not restricted to states (see esp. Article 39, and Article 51). Schmitt states: “No voices were raised claiming that either the customary right of self-defense or Article 51 was limited to the context of State actions” (p. 27). NATO's invocation of Article V, the actions of most states, the fact that “in no case, was there any suggestion that the right was dependent on identifying a State as the attacker” (ibid.), and that post-October 7 UNSC resolutions “went so far as to urge member States to ‘root out terrorism, in keeping with the Charter of the United Nations'” (p. 27; see, S.C. Res. 1378 (Nov. 14, 2002); S.C. Res. 1386 (Dec. 20, 2001; S.C. Res. 1390 (Jan. 16, 2002). Schmitt provides (pp. 31–40) an extremely insightful treatment of the normative legal precedents supportive of limited State armed self-help actions; an account of those actions against actors whose actions the host State is either unwilling or unable to prevent; a detailed factual case that the Taliban had been presented unequivocal evidence of Al-Qa'ida's complicity in previous attacks and therefore it was reasonable that they would be required to unconditionally agree to U.S. terms and surrender Al-Qa'ida's bin Laden to authorities pursuing criminal proceedings from previous terrorist attacks, as well as permitting unconditional access of U.S. forces to Afghan soil for the purpose of neutralizing Al-Qa'ida's terrorist training camps and infrastructure. Williamson (2009, p. 156) is in agreement with Schmitt on this very point. In addition to legal evolution Schmitt also addresses the evolving standard for evidentiary proof and concludes that its adequacy “will rest on the international community's determination of whether a reasonable international actor would have acted in self-defense on the basis of the evidence in question” and also that the standards required of states for disclosure of evidence must also protect the State's right “to be able to conduct self-defense, and otherwise safeguard oneself from terrorists” (pp. 70–71). The author forthrightly states in his Preface: “I am not neutral in this debate. I believe that in many instances the government has gone too far in its infringement on civil liberties and that it has not prosecuted the war on terror effectively. I believe students can benefit from a book whose author has this point of view and that even those readers who do not accept my conclusions will benefit from being exposed to the cases and materials that I have organized to present this argument” (p. ix). This bias is most evident in the introductory comments to each section, and concluding comments and questions, but to the author's credit, the documentary evidence is presented fairly and accurately. Based on the Rudolph C. Barnes Sr. Symposium, “Religion, Ethics, and Armed Conflict Law: Afghanistan, Iraq, and the War on Terror” held at the University of South Carolina, April 8, 2005. According to this appendix (p. 341) redacted excerpts from audience question and answer sessions and roundtables are available at: www.lfip.org/events/barnes05/video/video.htm. Corroborating this admission: Peter Finn and Karen De Young, “In Somali terror suspect's case, administration blends military, civilian systems,” Washington Post, July 6, 2011, http://www.washingtonpost.com.national/national-security/in-somali-terror-suspects-case-administration-blends-military-civilian-systems/2011/07/06/gIQAQ4AJ (acessed 7 July 2011). The authors state: “The administration's marriage of two systems in the case—relatively unimpeded military detention followed by a traditional criminal prosecution” represents what is in fact a hybrid model. Richard Pildes, NYU professor of constitutional law is quoted: “The value of the hybrid model is that if it can be done legitimately, the government can pursue its legitimate intelligence-gathering needs while also pursuing criminal justice prosecution, and you avoid pitting one against the other.” The author could have referenced contemporary British social theorist Anthony Giddens's work (esp. The Constitution of Society, 1984) for having explicitly developed this duality of rules which, by their very nature, always simultaneously constrain and enable a given set of practices. Giddens's account is politically neutral and refers to generic properties of rules qua rules, however, in contrast to Lang who frequently appears to seek hidden and pernicious enablements behind a constraint which is mere façade. In reference to the phenomenon of torture, for example, and in stark contrast to the nuanced positions actually presented in the text proper by other contributors, Lang writes: “The point I want to emphasize here is that while we assume the ‘rules' will prohibit torture, what the rules actually do is create a world in which torture is possible … What we imagine the rules can do for us—restrain violence and make the world more peaceful—is not what the rules actually do. They construct a world in which torture can become a normal practice, a form of ‘interrogation' rather than something that involves the abuse of human bodies in order to advance particular state interests” (p. 9). Moreover, far from emancipatory, rules “cannot eliminate a practice that is so deeply inscribed into the political practice of the sovereign state and its demand for ‘self-defense'” (p. 9). Unfortunately May is accidentally omitted (p. xiv) from the list of contributors and no biographical or bibliographic background is therefore available to interested readers. Jus cogens norms are, May states: “norms from which no derogation is permitted, and hence seemingly norms that sit at the apogee of international norms, and for which there are obligations erga omnes, that is, obligation on everyone” (p. 155). See page 156: “In a previous work I suggested that jus cogens norms were the backbone of international criminal law, insofar as jus cogens norms connected minimal principles of how people should behave toward one another with rudimentary legal norms. But even in that situation, it now seems to me, there are problems with prosecutions on the basis of uncodified jus cogens norms, of the same sort that affected criminal norms that are based solely on customs.” Additional informationNotes on contributorsPaul KamolnickPaul Kamolnick teaches classical social theory, contemporary social theory, and the sociology of global terrorism at East Tennessee State University. Most recently, he is the author of the forthcoming monograph, Deligitimizing Al-Qa'ida: A Jihadist Realist Approach (Strategic Studies Institute, U.S. Army War College).