Fifteen years ago, war was not perpetual. No one talked about Al-Qaeda or Osama bin Laden, and ISIS didn’t yet exist. There was no Department of Homeland Security, no jokes about the National Security Agency surveilling your emails or phone calls. Shoes were not considered a potential weapon and the closest you’d get to a full body pat down would be after an unfortunate evening out.
What has changed?
It took the devastating attacks on Sept. 11, 2001 to get the United States government to realize writ large the nature of threats had changed, enough for radar operators at NORAD to reorient their focus to include the U.S. homeland and contemplate the new normal. Why? Because before Sept. 11, intercepting a commercial airliner was “not normal.”
It turns out that three years before Sept. 11, the Chinese accurately predicted the attacks in their military manual, Unrestricted Warfare, which is available on Amazon. This slender volume elaborates on why it would be difficult for the U.S. to cope with war outside of traditional boundaries. After the overwhelming outcome in Operation Desert Storm, adversaries around the world knew it would be difficult to beat the U.S. military in a conventional war. Instead, the two Chinese generals who wrote the book recommended responding with nontraditional, non-state threats as a way to gain an advantage over the U.S.
The Chinese book describes plans and strategies for asymmetric warfare – from using computers to hack into critical systems, to smuggling illegal immigrants, manipulating the stock markets, (adversely) influencing the U.S. media, and even using weapons of mass destruction – all with the objective of destabilizing and destroying the U.S.
Blurred Lines: War Without Boundaries
The last time the U.S. officially declared war was when Congress approved Franklin D. Roosevelt’s request for a declaration of war against Japan after the 1941 Pearl Harbor attacks. What the U.S. did after the Sept. 11 attacks in 2001 was to declare a global war on terrorism – an “extended military engagement,” or a war with no defined boundaries, no geographic limits, no limits on who could be targeted, captured, or killed, and no end game in sight.
In How Everything Became War and the Military Became Everything: Tales from the Pentagon, author Rosa Brooks explores how the blurred boundaries of our extended military engagements since Sept. 11 have forced legal institutions and systems to adapt in ways both unintended and hard to fathom.
Brooks is a law professor at the Georgetown University Law Center, and was the advisor to then-Under Secretary of Defense for Policy Michèle Flournoy at the Pentagon. While the ‘Pentagonese’ might be a bit intimidating for the uninitiated, she explains the context for her stories and uses her legal academic background to frame her observations, teaching her readers why legal boundaries are being stretched.
For example, what would you call the attacks that happened on Sept. 11 – an act of war? A massive criminal act? Both? Neither? From a legal perspective, the author explains “the legal status of 9/11 is effectively indeterminate.”
The bottom line: International law has not evolved to address acts of war committed by non-state actors who don’t wear a military uniform. What that means is there’s a considerable gray area in determining the status of suspects arrested in the war on terror.
The biggest change in the post-Sept. 11 era is that there is no longer a binary distinction between war and peacetime.
Legal Ambiguities and a Camp in Cuba
The ambiguity began shortly after Sept. 11, when then-U.S. President George W. Bush outlined two objectives for the U.S. The global war on terror would be prosecuted at the same time that Osama bin Laden and his followers would be targeted for retribution. The flaw in these objectives has kept legal scholars especially busy over the last 15 years. The realms of criminal and international law governing the conduct of citizens in a country vs. wartime in a theater of operations are separate and distinct.
Since Sept. 11, a new variety of nontraditional warfare has emerged in which treatment as a traditional prisoner of war (POW) doesn’t apply and criminal law doesn’t cover terrorists, hackers, and other non-state groups.
If you ever wondered what happened to President Barack Obama’s promise to shut down the camp at Guantanamo Bay Naval Station in Cuba, then read Brooks’ chapter on it. She writes about the president’s evolution in his position on closing the camp.
The word “camp” is used deliberately when referring to Guantanamo Bay Naval Station, rather than “prison” or “POW camp.” The ongoing, profound ambiguity extends not only to how to define those held there, but also to uncertainties in international law, particularly with regard to the Geneva Conventions of 1949.
If the U.S. facility at Guantanamo were a prison, then its residents would be criminals. If it were a POW camp, then they would be enemy soldiers being held under the rules of war. It has never really been decided which these detainees are, and therefore their legal standing has remained unclear.
Distinctions between criminal law, prisoners of war, and how suspected non-state terrorists fall into an undefined legal ‘no man’s land’ category keep the Guantanamo facility open, despite attempts to repatriate prisoners to other countries.
What country wants to willingly accept a former prisoner branded as a dangerous terrorist, the worst of the worst? Not many, the U.S. has ruefully discovered.
The Rise of the Drone Wars
From the new normal of an endless war on terrorism emerged a new weapon to target suspected terrorists – the drone, or remotely piloted aircraft (RPA) as the U.S. Air Force calls it.
Less than a month after the Sept. 11 attacks, the first lethal drone strike by a tiny, CIA-controlled Predator that launched a Hellfire missile, killing four suspected Al-Qaeda members in Yemen, took place. Since then, the use of armed drones has become the dominant U.S. method of war.
Sudden Justice: America’s Secret Drone Wars provides an extensive overview of the drone’s emergence as a weapon, its use in various countries, and the strikes against citizens of Western countries. The author, Chris Woods, is an investigative journalist who writes about conflict and national security issues. Legal implications of targeting a U.S. citizen outside the U.S. with a drone is rarely openly discussed in the media – little is known and even less is reported given the classified natures of these strikes.
So what’s different since Sept. 11? In 2010, for the first time in its history, the Air Force trained more RPA pilots than fixed-wing pilots.
And according to Brooks, drone strikes challenge the rule of international law.
“The United States is struggling to adapt its legal theories and actions to new threats ushered in by the technological changes of recent decades, and it is not wholly wrong to take the view that traditional interpretations of the international law on the use of force have become inadequate,” Brooks wrote in a legal essay.
In other words, international law was never written to anticipate the use of remotely delivered lethal force against suspected terrorists without due legal process or appeal.
Since Sept. 11, more U.S. national security policy has slipped into the classified realm, where the hazy lines between war and no war can have unintended consequences. As Brooks and Woods both describe in their books, we are not privy to the details of the internal process used to vet drone targets, we don’t know if the rules for CIA-controlled and military drones differ, and there’s no open literature on drone targeting criteria, chain of command, or details on what Congressional oversight there is for drone strikes.
The balance between preserving secrecy to safeguard methods and advantages the U.S. may have over its adversaries and the need for transparency and clarity is a precarious one – one that, in essence, arguably defines the post-Sept. 11 era the most in the U.S.
Do We Feel Safer Now?
After 15 years, the effects of terrorism have become embedded into the fabric of daily life.
TSA screeners, cyber intrusion specialists, even positions solely dedicated to screening news feeds on Facebook or YouTube so unsuspecting viewers are not subjected to ISIS beheading videos, are all job descriptions unimaginable before the Sept. 11 attacks.
Do we feel safer now than before Sept. 11?
Because war is no longer defined as taking place “over there” and not in the U.S., as depicted in movies like Saving Private Ryan or Black Hawk Down, war now means unconventional war – terrorism, the asymmetric attack, the targeting of soft civilian targets any place, any time. That change is reflected in the zeitgeist of our post-Sept. 11 era.
With terror attacks generating headlines on a regular basis, 89% of Americans now say it is at least somewhat likely that acts of terrorism will be a part of life in the future.
The good news is that some terrorist plots have been stopped. The list of averted terrorist attacks – from bombings in the Capitol building to U.S. citizens aiding terrorist organizations overseas – reflects how for law enforcement, the military, and the intelligence community, the focus has shifted to preventing further attacks.
The problem transcends our borders, and so must the solution – with collaborative approaches, cooperation, and vigilance. Military action is not enough. While there is progress, more must be done to establish an international legal definition of terrorism. With mounting terrorist attacks in other countries, global coordinated strategies against terrorism are emerging and gaining ground.
A new global research network, Researching Solutions to Violent Extremism or RESOLVE, seeks to build the resilience of communities to violent extremism. With resolve, all countries, not just the U.S., need to work together to counter terrorism, a threat present since the Middle Ages, and that now defines the current era.
Top image: World Trade Center lights. Photo courtesy of Flickr user Scott Hudson, Creative Commons.