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“I don’t think there’s any question but that we are at war,” said Eric Holder at his confirmation hearing in January, referring to al Qaeda attacks on US targets from the 1990s onward.
When asked by Senator Lindsey Graham of South Carolina whether someone arrested in the Philippines who is suspected of financing al Qaeda could be considered “part of the battlefield” of that war, Holder answered yes.
Disappointing many who expected the Obama administration to mark a clean break from the Bush presidency’s world view, the attorney general-designate signaled his apparent approval of the “war on terror” paradigm. A month later, in a set of four cases involving detainees held at the US military prison in Afghanistan, the views he endorsed were reflected in government papers filed in federal court in Washington.
The petitioners in two of the four cases, Haji Wazir v. Gates and Amin al-Bakri v. Obama, sound very much like the hypothetical suspects mentioned by Senator Graham. Both Wazir and al-Bakri were well-off businessmen, not terrorist operatives, and they were both arrested in friendly countries far from any battlefield. Wazir was picked up in Dubai in 2002, and al-Bakri was seized later that same year in Thailand.
They have now been held for more than six years as “enemy combatants” without charge or trial, most of that time in military custody at Bagram Air Base in Afghanistan. When legal challenges against their indefinite detention were filed in federal court, the Bush administration tried to get the cases dismissed, claiming that the courts have no jurisdiction over enemy combatants held in Afghanistan.
In papers filed last Friday, the Obama administration agreed. “Having considered the matter,” said the Department of Justice, in a curt response signed by Acting Assistant Attorney General Michael Hertz, “the Government adheres to its previously articulated position.”
“The War Paradigm is Misconceived”
If the new administration decides to reconsider the matter, which one can only hope it does, it should pick up a new report by a prominent group of international jurists. The report, Assessing Damage, Urging Action, is the result of the three years of investigation by the Eminent Jurists Panel, an eight-member panel of judges and lawyers established by the Geneva-based International Commission of Jurists.
The report explores the global impact of recent counterterrorism measures on human rights. Although it examines violations committed all over the world, it dedicates an entire chapter to assessing the US-led “war on terror.”
The report’s conclusions are unequivocal: “The ‘war paradigm’ is misconceived, and has been applied in ways that have violated core principles of international humanitarian and human rights law.”
Applying basic principles of the laws of war, the report concludes that the war paradigm lacks a credible legal basis. “Neither the nebulous operation of a ‘war’ on terrorism, nor the engagement against particular groups that commit terrorist acts, such as al-Qaeda, warrant characterisation as an armed conflict within the meaning of international humanitarian law,” it explains.
The report is especially critical of the U.S. practice of detaining terrorist suspects without trial as “enemy combatants.” Calling such detentions “utterly arbitrary under human rights law,” it affirms that such prisoners should be treated as criminal suspects.
The report is clear and persuasive in explaining that terrorism and armed conflict should not be conflated. But it is the British director of public prosecutions, Sir Ken Macdonald, who—in a statement quoted in the report—makes the argument in even more compelling terms. Referring to the 2005 terrorist attacks in London, he says:
London is not a battlefield. Those innocents who were murdered on July 7, 2005 were not victims of war …. We need to be very clear about this. On the streets of London, there is no such thing as a war on terror …. The fight against terrorism on the streets of Britain is not a war. It is the prevention of crime, the enforcement of our laws and the winning of justice for those damaged by their infringement.
JOANNE MARINER is a human rights attorney based in New York.