George A. Lopez

Just two days after the horrific September 11, 2001 attacks, Thomas Friedman of the New York Times noted that the task ahead for an America Faced with a new type of war would be "to fight the terrorists as if there were no rules, and preserve our open society as if there were no terrorists."

What moral and legal rules have applied in this new type of war? Immediately after September 11, the prevailing U.S. government approach to the rules pertaining to these concerns was to claim that the unprecedented nature and form of the attacks warranted unprecedented means in response. In short, new threats and actions by a new enemy demand new rules. At the same time, as these rules take form and are implemented, they will continue to be adapted to the unique threat and war, or so suggested the Bush administration.

Prisoners
The designation of those captured in the fighting - and then the nature of their internment - has been a matter of substantial controversy. Human Rights Watch has led the way in taking the U.S. government to task regarding the intentionally ambiguous legal status of those captured in Afghanistan. The administration's characteriza-tion of those held has varied from "the enemy" to "illegal combatants" to "detainees." Even as Washington consis-tently resists calling these people "prisoners of war," lest our ability to garner intelligence from them about al Qaeda be compromised, two ironies have developed.

First, despite protests that these detainees were not prisoners of war, the evidence about prisoner treatment shows the United States to be in virtual compliance with the Geneva Conventions, save on prisoner access to legal counsel. What appears to hold the United States back from articulating its full compliance is the fear of entrap-ment by such criteria if unexpected developments occur later in the war. This hesitancy has led to a second and most intriguing development. The U.S. government group most concerned about such ambivalence regarding Geneva standards has been the U.S. military, who do not want a dangerous precedent set for their own treatment in some future conflict.

Military Tribunals
For all the ambiguity of definition and rules for dealing with those captured in Afghanistan, the Bush administra-tion staked out very clear ground early in the conflict regarding the justice component of the new war. Those who would be brought to trial either for involvement in 9- 11 or as members of al Qaeda, would be tried in new military tribunals. The administration's declaration quickly sparked a counter argument for the utility and relevance of using the criminal court system to try terrorists. This debate about tribunals dominated discussion on National Public Radio and played substantially in other areas of the press. The strong critique of the administration position led it to an evolving re-assessment.

By January 2002 and with the Taliban toppled, the Bush administration was talking openly about modifications that would occur should military tribunals be need-ed. Then without much political fanfare, the indictment, arraignment, and pretrial procedures for the suspected twentieth hijacker of September 11, Benjamin Moussaoui, proceeded through the existing U.S. federal court system in Virginia. And John Walker Lindh, whom so many believed would come before a tribunal, was handed over to the U.S. Justice Department and has since been convicted and sentenced - all within the normal criminal justice. This "learn as we go" approach regarding courts and legal proceedings for the crimes of September 11 does appear more democ-ratized. But the results come less from administration leadership and conceptualization than from the steadfast pressure of the broader civil society.

Civilian Casualties
The U.S. approach to dealing with the death of Afghan civilians deserves closer scrutiny. As President Bush stated in his address to the General Assembly in November 2001, firmly embedded in the U.S. heritage of political and moral concerns is the rule to limit the death of civilian nationals. Any fair assessment would conclude that in a number of ways, the first phase of the war was demonstrably more humane - certainly in design, and in much of its execution - than any previous U.S. war-waging enterprise. The commitment to limit loss of civilian life during the massive bombing that opened the U.S. military campaign in October was so strong that pilots often checked with command headquarters in Florida to obtain up-to-date intelligence for certain targets. This practice led some political figures and news analysts to suggest that such efforts were overly scrupulous and may have permitted key members of the enemy to escape.

However admirable this behavior was during the early phases of the war, as conditions began to shift on the ground, so too have the rules that apply to Afghan civilian casualties. Since the installation of the interim govern-ment, there have been more civilian casualties from U.S. attacks than during the war to overthrow the Taliban. Frustrated by the continued elusiveness of the very top leadership of both the Taliban and al Qaeda, and still engaged in various actions of a police nature against pockets of resistance, the Pentagon has now selected new targets, many located in more populous areas. In addition, there have been a few serious mistakes in targeting - such as the wedding fiasco - which have fueled further concern about slipping down a slope fraught with increased civilian casualties.

Particularly difficult to understand is the obstinacy of Pentagon officials to discuss these developments. Details about new missions of ground troops and Special Forces are hushed. Secretary of Defense Donald Rumsfeld discusses civilian casualties only in response to direct questions about them. Since mid-December these "answers" have reiterated two themes: the responsibility for civilian casualties rests squarely with the Taliban and al Qaeda as they seek to hide among the general population; and the Pentagon is not going to keep track of civilian casualties or talk about them. The implication is that no one is counting the dead because the numbers do not matter.

This may be the area of greatest slippage in the law and ethics of fighting the new war. Such a situation does not bode well for a democracy now on the edge of war with Iraq.

Conclusion
In a style that can only be labeled "making the rules as we go along," the U.S. administration's approaches to the new war on terrorism, from its inception to its current police-style actions, have been modified - sometimes by changing circumstances, sometimes by the heat of criticism or the light of open discussion within the wider body politic. But some areas of the war on terrorism have not evolved so productively. Despite the early U.S. commitment to limit collateral damage, under the interim Afghan government, U.S. forces are killing more civilians than during the air and ground war. Continuing drama and legal ambiguities dominate the holding and interrogation of the diverse fighters and former Taliban operatives who are prisoners of the United States. Only in the area of military tribunals have the wider civil society and the media had an impact on deciding which rules apply to this new war.

This may give us some cause for celebrating the virtues of democracy. But the fact that placing the war more centrally within the standards of Western law and ethics must be achieved from the bottom up, rather than through administration leadership, continues to spark grave concern among peace and human rights groups.

George A. Lopez is Director of Policy Studies and Senior Fellow at the Kroc Institute. His research focuses on economic sanctions and repression. Several recent publications by Lopez are featured on the Kroc Institute's webpage. "Alternatives to War with Iraq: Kroc Institute Resources on Policy and Ethics," www.nd.edu/~krocinst/media/iraq.shtml .

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