I was pleased to see my former DoJ Criminal Division colleague David Kris’s re-post of his thoughtful 2010 Brookings remarks, in which he argued that both criminal law enforcement and military force are appropriate tools to use in the conflict with Al Qaida. As usual, I agree with David’s pragmatic approach. The U.S. and European conflict with Al Qaida and associated groups as well as with ISIS cannot be addressed through either criminal law enforcement or military means alone. The U.S. and Europe must use, in David’s words, “all available tools that are consistent with the law and our values, selecting in any case the tool that is best under the circumstances.”
I made virtually identical points in a speech I gave at the London School of Economics in 2006 entitled "Legal Issues in the War on Terrorism" in which I explained the Bush Administration’s legal approach to dealing with Al Qaida. I explained the concept of a global armed conflict with Al Qaida; the meaning (and non-meaning) of the term “Global War on Terror”; the legality of the use of force against a non-state actor; the unwilling/unable test; and the need (as my former NSC colleague Bryan Cunningham has identified) for continued dialogue to identify the best legal approaches to new terrorist threats. At the time, my remarks were received rather skeptically by Europeans and by human rights groups who did not accept that the U.S. was in a “war” with Al Qaida. Eight years later, my remarks are essentially bedrock U.S. Government legal policy and would, I hope, now make more sense to a European audience that unfortunately is now more directly threatened by Al Qaida and ISIS.
Here are some excerpts:
On the need for a common international approach:
[N]ow is the time for the international community to construct a common foundation to defend our nations and protect our freedoms. The bedrock of that foundation is an appreciation of the magnitude of the threat posed by al Qaida, and the need in some instances to use military force to combat that threat. Domestic criminal law does not itself adequately address the threat posed by this enemy. While military force is not the right answer against all enemies everywhere, an appreciation that it can be appropriate when facing a threat as grave as that posed by al Qaida can serve as the basis for an intensified dialogue as we move forward.
On the “armed conflict” with Al Qaida:
Equally important, however, we believe that the United States was and continues to be in an armed conflict with al Qaida, one that is conceptually and legally distinct from the conflict with the Taliban in Afghanistan.
On the meaning of the “Global War on Terror”:
Let me pause here briefly to explain what we mean by the “Global War on Terrorism,” because I know that this term is troubling to Europeans. We do not believe that we are in a legal state of war with every terrorist group everywhere in the world. Rather, the United States uses the term “global war on terrorism” to mean that all countries must strongly oppose, and must fight against, terrorism in all its forms, everywhere around the globe. When used in this sense, I do not think that anyone in Europe would disagree with this objective.
On whether a State may be in an armed conflict with a non-state group:
First, some argue that a legal state of armed conflict can only occur between two nation states and that a state may not use force against an entity that is not a state. This contention is incorrect.
The principle of self-defense permits a state to take armed action to protect its citizens against external uses of force, regardless of the source.
On the unwilling/unable test:
This principle is no less true when a non-state actor launches attacks from outside the territory of a state into that state. Over a century of state practice supports the conclusion that a state may respond with military force in self‑defense to such attacks, at least where the harboring state is unwilling or unable to take action to quell the attacks.
If terrorists intent on harming civilians are being harbored by a state that is unable or unwilling to act against them, what choices does the state whose civilians are in jeopardy have? If we determine the location from which Bin Laden has been planning attacks against the U.S., and the state in which he is operating is unable or unwilling to act against him, what would you have the United States do? If terrorist attacks were being planned and launched against Britain from outside British territory from a state that would not or could not act to restrain the terrorists, would Britain take no action?
On a military or law enforcement approach:
This is not to say that military force and the laws of war are the ONLY appropriate or legal approach to confront international terrorism generally, or al Qaida in particular. Nor is it to say that law enforcement approaches to counterterrorism should be pushed aside because they are inconvenient to implement. We recognize that other countries, like the UK, Germany, and Spain, may be able to continue to use their criminal laws to prosecute members of al Qaida. Indeed, the United States itself continues to use its criminal laws to prosecute members of al Qaida, like Zacharias Moussaoui. But we do believe that it was – and continues to be – appropriate and legally permissible to use military force and apply the laws of war, rather than pursue a criminal law enforcement approach, to deal with members of al Qaida in certain cases.
On the need to work together to end the “forever war”:
And I urge European governments to go a step further than just criticizing — sometimes reflexively criticizing — the United States. We need practical suggestions and solutions, because we, like you, do not want this fight to go on forever.