The War On Terror is Based on Legal Novelties

[SoDesuKa]

Before the War on Terror there were various metaphorical "wars" - on poverty, on drugs, on illiteracy . . . Bush came along and created the concept of a war on terror as an actual war. September 11th, we were told, was the terrorists' declaration of war against us, and the War On Terror was a necessary response.

But terrorist gangs have no standing to declare war any more than they can sign treaties or negotiate fishing rights. Only a state can declare war. The "war" on non-state actors like Al Qaeda is metaphorical, not literal.

The term enemy combatants is also without modern precedent. The Bush administration, unhappy with having to acknowledge terrorists' constitutional rights the same as ordinary criminals, also sought to avoid recognizing detainees' rights as prisoners of war. So they created a third category, one with neither the rights of criminals nor those of soldiers. It's a novelty that will eventually be tested as the designation is applied to American citizens.

Osama bin Laden would have been regarded as a criminal if either the Bush or Obama administrations had not relied on the spurious notion that September 11th was a declaration of war. Because it was only a spectacular crime not a legitimate casus belli, bin Laden retained all the rights of other accused persons.

Substituting legal novelties in place of established precedent shows contempt for legal tradition. It was not a surprise to see the Bush administration launch assaults on settled law. But it is surprising that the successor administration headed by a former law professor is continuing down the same path. We expected better from Professor Obama than to act like the bumpkin who preceded him.

[BzaDem]

1. You say only a state can declare war, but that doesn't make it true. The same goes for others. The

biggest fallacy over the last week or two has been the assumption that the law is what certain people here wish it to be, rather than what it actually is. The only spurious notion involved here is the notion that only a state can declare war.

[SoDesuKa]

2. Metaphorical Wars and Imaginary Fish

You're relying on the notion of non-state actors declaring a metaphorical "war" as if that were the same as an actual declaration of war. Your purpose is clear - it's to relieve the government of its obligation to respect the rights of persons accused of crime.

We've gotten used to the idea of metaphorical wars, but they're not real wars. Wars are between states, just as fishing rights treaties are. I can't imagine what a metaphorical fishing rights treaty would stipulate - imaginary fish?

[BzaDem]

4. Ya know, you simply restating your incorrect opinion again is not much more persuasive than the

first time you stated your incorrect opinion.

You are really making a circular argument. You are incorrectly assuming that wars can only be declared by states. You are using that assumption to declare any war declared by a non-state actor to be "metaphorical." Finally, you are using the "metaphorical" nature of the war to prove that real wars can only be declared by states. Completely circular.

In reality, once you correct for the bogus initial assumption that wars can only be declared by states, the rest of your argument falls apart. People should stop pretending the law is what they would like it to be, and instead accurately discuss the law as it exists in reality.

[Spider Jerusalem]

3. Sorry, but you're wrong.

The people wishing the law to be something other than what it is are the ones saying "but we're at war with Al Qaeda!"

Only states may declare war; this is a simple fact of international law. There are certain special cases; in the event of a civil war, the insurgents may receive recognition of belligerent status, or indeed be recognised as the legitimate government. This exception is quite narrow and limited, and does not apply to terrorist organisations.

[BzaDem]

5. "Only states may declare war; this is a simple fact of international law." Link? What section and

what treaty that we signed are you referring to, that prevents the application of the laws of war to conflicts involving a non-state-actor?

If the law is as you say it is, surely you could come up with the law/treaty and section number.

[Bonobo]

6. Can an individual declare war? Can an organization declare war?

Can Justin Bieber declare war? Or AFSCME? Can they declare war?

[BzaDem]

8. The question is more about whether it is legal for the government to apply the laws of war against

an individual, organization, Justin Bieber, AFSCME, etc (not about an abstract declaration).

The truth is that those in the US, the US Constitution (and applicable Constitutional law) applies. So the laws of war generally cannot be applied.

As for non-US citizens overseas, international law governs (as well as domestic law constraints on the President's power). So if you were to make an argument that the US government cannot apply the laws of war in dealing with an organization that declared war, you would need to support that by pointing out the piece of international law that says so, or a piece of domestic law/case law that prevents the President from authorizing force.

[Spider Jerusalem]

10. The US government cannot apply the laws of war in dealing with a non-state actor.

Because if Bin Laden says "Al Qaeda is at war with America" it's a rhetorical flourish; he has no authority to actually declare war on the US, he is not representative of a state, he is not a king or a president, he is merely a criminal. So you're basically arguing that the US should legitimise the grandiosity of criminals and terrorists by treating them as state actors. When they clearly aren't. (Relevant to this discussion, see the condemnation of Israel for their use of force, targeted executions, etc against Hamas and so on. Which most state parties to the UN agree constitute violations of international law.)

[BzaDem]

12. I know that is what you are claiming. Do you have any actual law that supports your incorrect claim?

Your link below doesn't even pretend to claim what you say it claims.

[Spider Jerusalem]

7. The UN Charter, Hague and Geneva Conventions, etc, among others.

It's an accepted standard in international law that only states may declare war. Your trying to argue otherwise does not change this basic fact.

For instance the 1907 Hague Convention:

http://avalon.law.yale.edu/20th_century/hague03.asp

[BzaDem]

9. Quote/section number that says that only states can declare war?

Anyone can name bodies of international law. What I am asking is if there is a particular sentence/section that prevents any country from applying the laws of war to a conflict with a non-state actor. Do you have such a section/quote?

[Spider Jerusalem]

11. I provided you with a link; it's not my problem if you're too lazy to read.

[BzaDem]

13. I read the whole thing. The link that you provided does not remotely say what you claim it says.

Perhaps you should read your own links before pretending they back you up when they really don't.

[Spider Jerusalem]

14. ...

http://bit.ly/kTPyuu
http://bit.ly/khwVNC

And pmany more sources which agree that only state actors may declare war. (Again, it's an accepted principle and convention of international law.)

[BzaDem]

15. Neither of those links is a law that asserts what you claim. Just because you claim it is an

accepted principle doesn't mean it actually is. To show that it actually is (rather than merely what you claim), you need to present an actual law (preferably a quote from such a law) that prevents a country from applying the laws of war to a conflict with a non-state actor.

The fact that none of the links you provide are laws that state what you claim seems to be more evidence that you can't come up with such a law that says what you claim, but you are free to try again if you would like to actually support your incorrect claim with such a provision of a law (rather than merely claiming it again).

[Spider Jerusalem]

16. See various UN resolutions re Israeli actions against non-state actors for a start

which form a body of precedent in international law. Conversely, can you show me anything stating that the laws of war apply to non-state actors, since you're making that claim?

[BzaDem]

18. "Conversely, can you show me anything stating that the laws of war apply to non-state actors"

That is not how the law works. The law constrains action. If there exists no law (statutory, Constitutional, international agreement, etc) that prohibits a particular action, that particular action is left unregulated (not prohibited). So it is you that would need to present a law backing up your view, because you are claiming the government is constrained in this particular way (not me). Conversely, if I were claiming the government was constrained in a certain way, it would be me who would have to point out such a constraint in a particular law.

A UN resolution regarding an Israeli action is not the same as a law that binds/constrains the actions of the US. If what you are claiming is true, there would need to actually be a law (statutory, Constitutional, international agreement/treaty, etc) claiming what you say is true.

[Bonobo]

20. Does that mean Justin Bieber CAN declare war?

I mean, no treaties exist saying that he can't...

[BzaDem]

21. Again, the issue is whether the US can apply the laws of war in a conflict with Justin Bieber.

Since Justin Bieber is present in the US, US law would govern, and he would have the due process rights afforded to anyone present in the US (citizen or non-citizen).

If there was a mythical Justin Bieber present in another country that commanded a terrorist organization that declared war on the United States, was actively planning terrorist attacks on the United States, etc, then the US could apply the laws of war to fight the terrorist organization and its members. (It might need domestic law authorization from Congress, such as the Authorization to use Military Force of 2001 or something similar.) This is not to say it necessarily would; if the organization was based in say France, the US would likely work with French police (rather than invade France's sovereignty), presuming we had confidence that the French wouldn't help them escape if we shared intelligence with them.

[hobbit709]

23. Well he IS an assault on sensibilities.

[Bonobo]

17. Legal agreements between nations are made by nations.

They cannot be made by anything OTHER than nations.

In the broad sense, anyone can declare anything but whether or not it has the force of law is based on their standing.

I could declare war on Walmart, but it would ne meaningless as there is no legal precedent for such a thing.

Similarly, since only nations can make international agreements and only nations have "war powers", it is ipso facto true that only nations can declare war.

[BzaDem]

19. "it is ipso facto true that only nations can declare war." That is completely false. If an action is

not constrained/prohibited/regulated in international law (or any other form of law), the resulting action is left unregulated (not prohibited).

So if we signed a treaty that prohibits us from applying the laws of war on non-state actors, then we would be constrained from doing so. On the other hand, if there is no such agreement or law, we are not constrained from doing so. The lack of an international agreement (or domestic law) constraining our actions would prove that your argument is false -- not true.

[ixion]

22. it is based on Delusions of Grandeur and extra-legal logic preztels

to try and justify the unjustifiable. It fails miserably, of course.

So-called 'wars' of abstraction are simple marketing gimmicks being used to allow the Police State to come into full bloom. Left unchecked, it will do just that.

[azul]

24. The GWOT is based on congress's failure to abide by its constitutional duties.

Congress could not declare war on individuals, so they authorized the use of force by the president. The president then went extra-legal and invaded two sovereign nations, clearly acts of war that congress explicitly had the responsibility to stop, or else officially act and declare war. The shaky framework of international law was stepped-on by the sole superpower that now obtained the power to hunt and kill anyone in the world without trial: superpower state terrorism declaration.

The UN's authority is a shameful front for the bending and breaking or selective enforcing of international laws. Read Philippe Sands' "Lawless World" for a history of international law and where it stands today because of the GWOT's legal adventures.

The rule of law is changed now to not protect an individual, anywhere in the world, from kidnap, torture and execution on the whim of a president, elected or not, without legal charge or trial. And this change is amazingly accepted as natural and even defended by some here, DU.