Last week, in the deadliest terrorist attack in New York City since 9/11, Sayfullo Saipov turned a nearly mile-long stretch of bike path along Manhattan’s West Side Highway into a killing ground. The attack reflects a terrorism threat that is morphing from the complex, externally directed attack carried out by a network that we saw on 9/11 to violent individuals, inspired online by ISIS and other radical jihadist groups. We built an architecture to prevent another 9/11, but we have a long way to go when it comes to tackling this latest phase of terrorism.

The good news is that communities have proven resilient when attacked. The bad news is that this week—with calls for “extreme vetting” and denigration of our criminal justice system as a tool against terror—we saw dangerous backsliding instead of a renewed focus on the work needed for the next phase in the war on terror.

How should we respond to this latest terror act on our soil? Rather than demagoguing on immigration, launching divisive political attacks, or disparaging our criminal justice system, we should focus on what works. Effectiveness should be our lodestar. Russia is not the only one who wants to weaken the United States by sowing division in our country—the terrorists want to do so as well. We shouldn’t let them.

When tragedy and terror strike we must deliver swift and certain justice consistent with the rule of law. While it appears cooler heads have prevailed to reverse the President’s initial impulse to send the New York attacker to Guantanamo (an unprecedented and legally dubious move), the fact that we found ourselves having the debate yet again about “war” vs. “law enforcement” in the terror fight prompted disturbing déjà vu. Dedicated professionals across two administrations worked hard to ensure that this country can apply all tools—military, intelligence, law enforcement, diplomacy, financial sanctions—to disrupt threats and hold terrorists accountable. For terrorists caught on U.S. soil, we have relied on a criminal justice system that is the envy of the world not only because it is the hallmark of our rule of law society but also because it gets results.

The record is clear when it comes to generating intelligence, securing convictions and safely holding terrorists. The more than one million federal, state, and local law enforcement officers who work in that system put their lives on the line to keep us safe are anything but a “laughing stock.” To the contrary, they include more than 30,000 FBI agents, intelligence analysts and other professionals who I was proud to call colleagues when I served as Chief of Staff to then FBI-Director Robert S. Mueller. This nation is also served everyday by dedicated federal prosecutors who are no “joke.” That includes those in the Southern District of New York who, true to their tradition of independence, tuned out the political talk and moved swiftly to charge the New York attacker. It was precisely the need for intelligence-driven criminal prosecutions of terrorists and spies that led to the creation of the Justice Department’s National Security Division which I was privileged to lead during the Obama Administration. These elements of our post 9/11 architecture—solidified over both Republican and Democratic Administrations—have brought justice in hundreds of terrorist-related cases since 9/11.

Contrast that approach with the (hopefully short-lived) impulse to send Saipov to Guantanamo on the theory that we’re at war (we are) and he’s an enemy (he is) and enemies don’t get lawyers (not quite). The Supreme Court has determined that Guantanamo Bay, where a detainee has the right to challenge his detention, is not lawyer-free zone. And while a bipartisan effort reformed military commissions in 2009 to maintain a prosecution tool for terrorists caught on a hot battlefield, they have proven anything but swift and certain. In 15 years, the military commissions have delivered just eight convictions or guilty pleas and several of those have been overturned or invalidated. The 9/11 and U.S.S. Cole bombing victims and their families are still waiting for justice today.

Justice would not be served by sending Saipov to Guantanamo. Nor would it serve the goal of generating intelligence and understanding how Saipov came to plow down pedestrians on Halloween afternoon. Saipov reportedly has talked to FBI agents and told them that he consumed ISIS propaganda prior to his attack. Understanding more about how and when he became radicalized is critical to stopping future attacks. But the surest way to keep that from happening would be to interrupt the FBI interrogation and ship Saipov to Guantanamo.

It is dangerous pre-9/11 thinking to suggest that the FBI can’t act in this case—as it has in so many others since 9/11—to obtain intelligence from a terrorist in custody. In fact, the FBI can immediately question terrorists—without giving Miranda warnings—to identify other threats and plots. In 2011 when Congress was considering a mandatory military custody law for terrorist captures here or abroad, the FBI was right to argue that such a mandate would interrupt their intelligence gathering process by turning a terrorist over to the military where he could challenge his military detention with the benefit of a lawyer. Sure enough, in case after case where the FBI has moved quickly to gather intelligence and then bring a prosecution in our courts, terrorists have pled guilty or received lengthy sentences in the highest security Federal prisons. And importantly the FBI has been able to generate intelligence that led to the capture of other terrorists (Just ask Christmas Day bomber Umar Farouk Abdulmutallab). We need this intelligence now more than ever in order to understand how Saipov was radicalized and how someone might have intervened in time to stop him.

It appears that Saipov did not slip through the vetting system, but instead may fall into the more-common category that DHS described in March of this year when it concluded that most foreign born, US-based terrorists are radicalized after they arrive. At the moment, we have a rare opportunity, having taken Saipov into custody alive. As NYPD Deputy Commissioner John Miller said, Saipov followed the ISIS playbook “to a tee” by weaponizing a vehicle and leaving a note to brag about it. This breed of terrorist poses a significant challenge to law enforcement and we should strive to learn as much as we can about Saipov’s path to radicalization.

In response to this challenge, we should reject impulsive responses in favor of what works. Recycling campaign chants of “extreme vetting” and pulling the plug on the Diversity Visa Program which reportedly allowed Saipov entry in 2010 is a distraction; he reportedly was radicalized years after he entered the United States. To be clear, we should support strong and thorough vetting for anyone who wants to enjoy the rights and benefits of this country. Such vetting, regardless of specific program, should be refined based on threat intelligence. This is why following the Paris attacks in 2015, the DHS strengthened the visa waiver program to respond to the threat from foreign fighter returnees who may have traveled to join ISIS in Syria and Iraq but held European passports eligible for visa-free travel to the United States. The future of the Diversity Visa Program might be a reasonable topic for debate, but based on what we know now is in no way related to the tragedy on the Westside Highway.

Rather than creating distractions and issuing blanket travel bans, our vetting process should respond to the actual threats we face. We should be building trust in communities we need to identify future threats, not alienating and marginalizing them. Let’s focus on working with social media companies to stop abuse of their platforms. Let’s work to strengthen relationships with our international security partners.

Sixteen years after 9/11 we face a different type of threat. In response, we should emulate the best we’ve seen from this country. We should model resilience and support, and we should reject politics in favor of pragmatism. We must summon the best in our communities, in our government and politics, and rely on that which makes us different from every other country in the world: the rule of law and our justice system. Anything less allows terrorists to divide us.

Benjamin R. Farley

Has the United States been at war with al-Qaeda for 21 years? During the most recent 9/11 military commission hearing at Guantanamo Bay, the prosecution finally articulated its view of when the U.S. and al-Qaeda entered into an armed conflict. According to the prosecution, that putative armed conflict began more than 21 years ago, on August 23, 1996, the day Osama bin Laden, the founder of the terrorist group, published a fatwa calling for attacks on Americans. The government characterized this fatwa as a declaration of war:

We do believe that the ’96 document written by [Osama] bin Laden, who was the head of al-Qaeda at the time he wrote it, is a declaration of war.

The prosecution apparently staked out this astonishing position, at odds with history, law, and the U.S. government’s interests outside of the 9/11 military commission, to satisfy its short-term litigation goal of preserving the military commission’s personal jurisdiction over the 9/11 defendants.

The Military Commission Act grants military commissions personal jurisdiction over “alien unprivileged belligerents.” The Act defines those as individuals who are not U.S. citizens, who are not privileged belligerents, and who either (1) engaged in hostilities against the United States or its coalition partners; (2) purposefully and materially supported hostilities against the United States or its coalition partners; or (3) were a part of al-Qaeda at the time of the alleged offense.  All three categories of individual over whom a military commission may have personal jurisdiction must have some connection to hostilities—which the MCA defines as “any conflict subject to the laws of war.”  (The timing element of the third category implicates hostilities through §950p(c), which limits offenses triable by military commission to those “committed in the context of or associated with hostilities.”)  Hostilities, in turn, are defined as any conflict subject to the laws of war.  Thus, the military commission has personal jurisdiction over the 9/11 defendants only if they were connected to an armed conflict between the U.S. and al-Qaeda prior to September 11, 2001.

Since May 2017, the 9/11 military commission is working its way towards a pre-trial, evidentiary hearing on personal jurisdiction.  It was in the context of a preliminary hearing addressing what if any witnesses should provide testimony as to personal jurisdiction that Judge Pohl pressed the prosecution for a specific date on which the armed conflict with al-Qaeda began.  The government’s response—August 23, 1996—was intended to ensure that the 9/11 military commission could proceed.  Unfortunately, that position carries with it significant ramifications implicating state sovereignty—the oldest rule in international law—and fundamental applications and consequences of the law of armed conflict.

It is axiomatic that only states may bring about the legal state of war or, in modern terms, armed conflict, through an act of speech. Historically, the law of war applied to situations of declared war between states.  When the 1949 Geneva Conventions established the modern framework for armed conflict that rests primarily on objective indicators of conflict rather than political declarations or determinations, the drafters retained the notion of declared war between states—but only for conflicts between states.  Thus, international armed conflicts—armed conflicts between two or more states—may arise upon a declaration of war alone or through the use of armed force between two states.  In contrast, non-international armed conflicts——armed conflicts between states and non-state actors (or among non-state actors)—only exist when non-state actors are sufficiently organized and violence between the parties is sufficiently intense. Whereas Common Article 2, which invokes the full panoply of the Geneva Conventions, applies only to interstate war and may be triggered merely by a declaration of war, Common Article 3 applies alone in the event of “an armed conflict not of an international character.” The drafters of the Geneva Conventions simply made no provision for a  non-international armed conflict to be triggered by means of a declaration of war.

In fact, the drafters of the Geneva Conventions intentionally excluded a declared-war trigger for non-international armed conflict. Common Article 3 reflects a careful balance: recognizing that conflicts between states and non-state actors may rise to a level of violence comparable to that of interstate armed conflict, while also accommodating states’ desire to minimize international legal regulation intruding on their internal affairs. This bargain reflects states’ aversion to conferring the sort of legitimacy or legal status on non-state actors that could challenge states’ sovereignty, including by implicitly recognizing their belligerent or insurgent status.

Thus, the final clause of Common Article 3 includes a disclaimer: “The application of the preceding provisions [Common Article 3] shall not affect the legal status of the Parties to the conflict.” Jean Pictet’s authoritative Commentary on the Geneva Conventions specifically attributes the provision’s origin to a desire to “prevent the [non-state] party from basing a claim for recognition as a regular Government on the respect it had shown for the Convention,” as required in the original Convention draft. His explanation of Common Article 3 attributes much of its evolution from its initial proposal to its final form to states’ concerns about legitimizing criminal entities.

“There was also a risk of common or ordinary criminals being encouraged to give themselves a semblance of organization as a pretext for claiming the benefit of the Conventions, representing their crimes as ‘acts of war’ in order to escape punishment for them. A party of rebels, however small, would be entitled under the Conventions to ask for the assistance and intervention of a Protecting Power. Moreover, it was asked, would not the de jure Government be compelled to release the captured rebels as soon as the troubles were over, since the application of the Convention would place them on the same footing as prisoners of war?”

Pictet concluded that without the disclaimer, Common Article 3 would not have been adopted. “It meets the fear—always the same one—that the application of the Convention, even to a very limited extent . . . may confer belligerent status, and consequently increased authority, upon the adverse party.”

The same concerns over extending legitimacy to non-state actors persists today.  Indeed, the United States has never ratified Additional Protocol I precisely because it had the potential to “give recognition and protection to terrorist groups” by extending the law pertaining to international armed conflicts to certain non-international armed conflicts. In transmitting his decision not to seek ratification of Additional Protocol I, President Ronald Reagan explained to the U.S. Senate that the application of the full panoply of international humanitarian law to armed non-state actors who do not otherwise comply with the law of armed conflict could legitimate the aims and the practices of terrorist organizations.

Nevertheless, solely in order to extend the military commissions’ jurisdiction over the 9/11 defendants, the government has chosen to legitimize bin Laden and al-Qaeda by placing them on the same legal plane as states, stating last week that:

. . . [O]ur position has always been under international law, when you have international armed conflicts, a declaration of war is sufficient alone [to trigger the law of armed conflict].

. . . .

If we were to declare war on another country today, the law of war would apply from the second we declared war. And that’s really what we are talking about. We are talking about when did the hostilities begin so we know when the law of war took over. And clearly our position has always been that we believe it began in 1996 with [Osama] bin Laden’s declaration . . . .

The military commission prosecution evidently believes that, as a matter of law, an individual or a non-state actor may, through its speech alone, unilaterally bring about a legal state of armed conflict. If the military commission were to credit the prosecution’s position, it would preserve the military commission’s jurisdiction and save the prosecution the trouble and difficulty of demonstrating the existence of a non-international armed conflict prior to 9/11. Unfortunately, the consequences of that inexplicable position are not limited to whether the 9/11 military commission may go forward.

According bin Laden’s 1996 fatwa the legal effect of a declaration of war implies that in 1996 al-Qaeda had the characteristics of a state actor. International law normally limits statehood only to those entities that are able to exert effective control over a definite territory and population, engage in international relations, and garner recognition. But none of this was true of al-Qaeda in 1996. Three months before issuing his fatwa, bin Laden and al-Qaeda were evicted from Sudan and dispossessed of their enterprises there. At the time, al-Qaeda boasted as few as several dozen members. And, seven months later, the Taliban—who by then exerted actual effective control over the territory where bin Laden resided—forced bin Laden to relocate to Kandahar from Nangarhar, where he originally established himself in Afghanistan after fleeing Sudan.

The prosecution’s position imbuing al-Qaeda with state-like powers undermine U.S. interests outside of this military commission in at least five ways.  First, it undermines the lawfulness and legitimacy of the U.S. war of self-defense against Afghanistan in the aftermath of 9/11.  If al-Qaeda were a state or something akin to a state in 1996, then by implication Afghanistan and the Taliban did not so much host al-Qaeda as surround it, as if it were an enclaved state. Under the prosecution’s view, therefore, the Taliban could not be responsible for surrendering bin Laden following the 9/11 attacks, and the United States’ ultimatum to hand him over would have been unreasonable: how could a de facto government with only partial control of its own territory be responsible for curtailing the actions of an enclaved sovereign? Consequently, if the prosecution were right that al-Qaeda was the equivalent of a state actor, the invasion of Afghanistan could be viewed as a misdirected and illegal aggressive war.

Second, the prosecution’s position necessarily suggests that the armed conflict between al-Qaeda and the United States is an international armed conflict—as opposed to a non-international armed conflict—invoking the full panoply of the laws of war.  This position also means that al-Qaeda members were the regular armed forces of a state, meaning that members of al-Qaeda could make a colorable claim to combatant immunity and prisoner-of-war (POW) status. At the very least, all of those currently detained and accused of prior membership in al-Qaeda should have been treated as POWs until they received an Article 5 hearing. (Ammar al Baluchi, for example, has requested, but never received, an Article 5 hearing.) The prosecution’s position in the 9/11 case legitimizes attacks by members of al-Qaeda on U.S. soldiers and military infrastructure, narrowing the scope of criminality associated with al-Qaeda attacks.  For example, according to the prosecution’s view, the attack on the U.S.S. Cole would remain perfidious but the sailors killed and the vessel targeted would be lawful military targets—and the charge of terrorism would be a mere restatement of the object of war: violence intended to coerce a political result.

Third, if the prosecution position prevailed, al-Qaeda would have enjoyed belligerent rights and the benefit of the laws of neutrality. Neutrality of non-belligerents is automatically triggered by the existence of a state of war between belligerents. Neutrals must remain neutral—that is they must not assist one belligerent party against the other. But belligerents must also refrain from conducting hostilities on the territory of neutral states, a fundamental protection for neutrals and against the spread of war. For example, the application of neutrality as a result of the prosecution’s position would mean that the U.S. violated Sudan’s neutrality along with its sovereignty by bombing the al-Shifa pharmaceutical facility in Khartoum in 1998.

Moreover, and outside of the immediate concerns relating to al-Qaeda, the government’s position suggests that declarations of war by non-state actors are a fast-track to sovereignty. The consequences of this implication may be far reaching. There are numerous entities that have substantially stronger claims to statehood than did al-Qaeda in 1996, but that remain outsiders in the international system. Would entities like Somaliland, the Turkish Republic of Northern Cyprus, Abkhazia, and others finally gain admittance to the international system by declaring war on a neighbor or a far-off foe unlikely to take notice?

Finally, the government’s position leaves unsettled how to differentiate non-state declarations of war that have legal effect from those that do not. The U.S. has been the target of numerous supposed declarations of war by violent non-state actors to which it accorded no legal effect. For example, the United States treated neither the Symbionese National Liberation Army nor the Weathermen as enemy belligerents. Similarly, why give bin Laden’s August 1996 fatwa the legal weight of a declaration of war but not al Qaeda’s earlier 1992 fatwa that likewise called for attacks on U.S. forces in Saudi Arabia?

The only conclusion that can be drawn from the prosecution’s astounding position that bin Laden’s fatwa actually caused a legal state of war with the U.S. is that the government is willing to contort the law of armed conflict to suit its short-term litigation goals. Unfortunately, its single-minded and short-sighted effort to patch up the broken 9/11 military commission is simply making wreckage of law and history—and proving the old adage that hard cases make bad law.

The opinions and views expressed are those of the author alone. They do not represent the views of the US Department of Defense or the US Government. 

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