War Without a Declaration

Joe,

While I agree with most of what you write, I must quibble with a couple of things. Firstly, you draw a distinction between acts of terrorism that occurred in occupied territory and acts of terrorism that happen in unoccupied territory. While it is correct that the United States is not occupied territory, I am not sure that paradigm fits with non-nation state actors such as al-Qaeda. Surely suspected terrorists detained in Afghanistan are in occupied territory. (Occupied by both NATO and the Taliban, perhaps.) But this rule leaves open terrorists arrested elsewhere, outside the United States. I think the more useful distinction is between uniformed members of a nation-state’s military who might commit an act of terrorism and non-state actors like al-Qaeda and their ilk. While it would be perfectly clear that a military tribunal would be appropriate, like the Nuremberg trials for example, for uniformed forces, I think it is also equally as clear that al-Qaeda members should be tried in civilian courts. It is the only legal framework that fits their crimes and status.

After disagreeing you on that point, I would like to strike a more conciliatory tone and agree whole heartily with what you say in your third to last paragraph. I believe it was a mistake of the Bush administration to not ask Congress to pass an act of war. With out that, as you correctly point out, detainees must be tried in civilian courts. It was only in 2008, after nearly a decade of active combat, that the administration sought for Congress to “explicitly declare a state of armed conflict with al-Qaeda” (Mikkelsen). It was only after mounting legal losses, where the Supreme Court began chipping away at the military tribunals, did the Department of Justice become interested in a formal act of war. If they had asked immediately after the September 11^th attack, they surely would have gotten the resolution. Instead, they squandered that opportunity.

Works Cited

Mikkelsen, Randall. “Bush law chief seeks conflict declaration on Qaeda.” Reuters. 21 July 2008. 08 Febuary 2010.