Rightly dividing the domestic jihadist from the enemy combatant in the 'war against al-Qaeda': why it matters in rendition and targeted killing.

AuthorAddicott, Jeffrey F.
PositionSymposium: Presidential Power and Foreign Affairs

Abstract

The confusion associated with comprehending fundamental legal concepts associated with how America conducts the "War on Terror" centers around the unwillingness of the U.S. government to properly distinguish al-Qaeda unlawful enemy combatants from domestic jihadi terrorists. If the American government cannot properly differentiate between an enemy combatant and a domestic criminal, it is little wonder that attendant legal positions associated with investigation techniques, targeted killing, arrest, detention, rendition, trial, and interrogation are subject to never-ending debate. While all al-Qaeda unlawful enemy combatants can be labeled as violent jihadists, not all violent fihadists are unlawful enemy combatants.

Without a significant about face in leadership that is willing to discern the basic difference between an unlawful enemy combatant and a domestic criminal, America's reputation will remain under a cloud of suspicion and confusion regarding the legality of our actions associated with two significant areas of critique: rendition and targeted killing vis-a-vis unlawful enemy combatants in the War on Terror.

CONTENTS I. INTRODUCTION II. DEFINITIONS A. Global Definition of Terrorism B. American Definitions of Terrorism C. Enemy Combatant Versus Unlawful Enemy Combatant D. Domestic Jihadist III. MIXED SIGNALS--BLURRING THE LINE BETWEEN DOMESTIC JIHADIST AND UNLAWFUL ENEMY COMBATANT IV. TARGETED KILLING V. RENDITION VI. CONCLUSION I. INTRODUCTION

"Decisions about who, where and how to prosecute have always been--and must remain--the responsibility of the executive branch."(1).

--Eric Holder

With the devastating terror attacks of September 11, 2001 by al Qaeda unlawful enemy combatants(2) on the United States, terrorism is no longer exclusively just another criminal offense to be investigated by the Federal Bureau of Investigation (FBI) and handed over to an Assistant U.S. Attorney for prosecution. (3) If the terror attack is carried out by an unlawful enemy combatant, the proper rule of law is not domestic criminal law, but the law of war. This simple common sense distinction is largely lost on a bilious sea of political and ideological distortion. Whatever else the eleventh anniversary of the al-Qaeda terror attacks of September 11, 2001 (4) signifies, it is unfortunate that well after the passage of a full decade there still remains great public confusion when it comes to comprehending fundamental legal concepts associated with how America conducts the War Against al-Qaeda,(5) more popularly referred to by the non-descriptive Bush-era phrase: "War on Terror."(6) While some may argue that the fault for this obfuscation rests with the lack of international consensus on relevant standards that should be adopted to deal with international terrorism(7) in asymmetric warfare,(8) or that the Bush-created phrase War on Terror itself is horribly vague,(9) the root cause of this so-called conundrum actually centers around the unwillingness of the United States government to properly distinguish al-Qaeda unlawful enemy combatant terrorists from domestic jihadi terrorists.(10)

Instead, the terms "domestic terrorist," "domestic jihadist," or just "terrorist" are frequently employed to describe all categories of actors--unlawful enemy combatants as well as common criminals-leaving both domestic and international audiences puzzled as to what should be the proper rule of law to apply to a given act of terror. If the American government cannot properly differentiate between an enemy combatant and a domestic criminal, it is little wonder that attendant legal positions associated with investigation techniques, targeted killing, arrest, detention, rendition, trial, and interrogation are subject to never-ending debate. For instance, one interesting and overriding issue that perplexes is not whether rendition or targeted killing is lawful against unlawful enemy combatants--they certainly are--but, why it is so difficult to discern the unlawful enemy combatant from the domestic criminal? Is it really just a matter of sloppy thinking leading to sloppy application of the proper rule of law?

To be certain, the term terrorism carries with it tremendous definitional baggage. Despite the many descriptive uses of the term terrorism, it is and always will be a tactic, not an ideology.(11) From a historical perspective, the threat of terrorism is nothing new. Terror as a tactic is as old as human history. Similarly, those who engage in terrorism as a tactical use of violence can emanate from a variety of ideological sources, including political, social, economic, or religious.(12) As such, popular labels that incorporate the word terrorist to describe groups or individuals include such phrases as, "right-wing terrorists,"(13) "left-wing terrorists,"(14) or "eco-terrorists."(15) That said, the number one threat facing the United States comes from an ideologically/religiously linked confederation of radicalized violent Islamic jihadists who engage in illegal violence by means of terrorism.(16) Some of these jihadists qualify as unlawful enemy combatants and some do not. While all al-Qaeda unlawful enemy combatants can be labeled as "violent jihadists,"(17) not all violent jihadists are unlawful enemy combatants. In this light, violent jihadists that do not qualify as unlawful enemy combatants must be deemed domestic terrorists, but violent jihadists that do qualify as unlawful enemy combatants must not be labeled as domestic terrorists. Out of all of the nascent legal and policy issues associated with the armed conflict against al-Qaeda, no factor has spawned more public or political rhetoric. If this separation was understood and applied, many of the legal and policy questions would quickly fall into place with little or no dissent. (18)

The inability to set bright lines of distinction between al-Qaeda unlawful enemy combatants and domestic jihadists is not just a failure in definition; it is a failure in leadership and does tremendous damage to America's commitment to abide by the proper rule of law.(19) The United States must be able to clearly distinguish between common criminals and unlawful enemy combatants and then apply the appropriate rule of law to each category with unabashed clarity. The purpose of this article is to make this distinction and to forcefully argue that in its second term, the Obama Administration must drastically improve its dismal performance in articulating and communicating that distinction to the public. Without a significant about face in leadership that can actually discern the basic difference between an unlawful enemy combatant and a domestic criminal, America's reputation will remain under a cloud of suspicion and confusion regarding the legality of our actions associated with two significant areas of critique: rendition and targeted killing vis-a-vis unlawful enemy combatants in the War Against al-Qaeda.

  1. DEFINITIONS

    Semantics is the study of the meaning of words. Nowhere is this discipline more critical than in the field of jurisprudence. The hallmark of any constitutional democracy is its firm commitment to the law, and so it is absolutely imperative that the correct rule of law be applied to the proper set of factual circumstances. In turn, before an intelligent discussion of an issue can take place, it is imperative that the terms of the discussion rest on solid definitions. When it comes to rightly dividing the differences in legal treatment between enemy combatants and domestic terrorists, this entails a general understanding of at least four key categories of concern: (1) global definition of terrorism; (2) American definitions of terrorism; (3) differentiating the enemy combatant from the unlawful enemy combatant; and (4) defining the domestic jihadist. Once these terms are set, then the issues of rendition and targeted killing can be understood in their proper light.

    1. Global Definition of Terrorism

      At the start of the discussion, the basic agreement of what the concept "terrorism" means from a global perspective is of the utmost priority. Unfortunately, as many commentators have discovered when researching this matter, consensus is not possible. While the word terrorism has been firmly stamped in the world's general lexicon, there is still no specific international consensus for what the word actually means.(20) This state of affairs is unfortunate because it allows for the word "terrorist" to be freely interchanged with the word "unlawful enemy combatant" or "common criminal." In large measure, the lack of consensus reflects the perennial friction between competing national interests, but the factor of "one man's terrorist is another man's freedom fighter" (21) represents more than simply another misguided postmodernist expression. For instance, murders committed by the Iranian-backed Hamas (22) suicide bombers in Israel against Jewish civilians are praised by some as great heroes of martyrdom.(23) In the field of promoting a "just cause," e.g., the destruction of the State of Israel, the murders employ the old saw that the ends always justify the means.(24) To the reasonable mind, suicide bombers are nothing but murderers, no matter what the cause represented. A just cause cannot be advanced by the intentional murder of innocent civilians.(25)

      Understanding the need for a global definition on terrorism and the barrier posed by the related issue of the just cause syndrome, the former Secretary General of the United Nations, Kofi Annan, expended great effort in carving out a lucid definition for terrorism that would be palatable to the international community. Concentrating on the innocent civilian victims of terror, Annan offered a very short and precise definition of terrorism that eliminated any mention of a justification for the "cause" that motivated the act of terror. Following the long-standing logic for outlawing "war crimes" via international treaty...

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