Human Rights and America's War on Terror

Satvinder S. Juss

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351005647
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This volume examines the success of the 9/11 attacks in undermining the cherished principles of Western democracy, free speech and tolerance, which were central to US values. It is argued that this has led to the USA fighting disastrous wars in Afghanistan and Iraq, and to sanctioning the use of torture and imprisonment without trial in Guantánamo Bay, extraordinary rendition, surveillance and drone attacks. At home, it has resulted in restrictions of civil liberties and the growth of an ill-affordable military and security apparatus. In this collection the authors note the irony that the shocking destruction of the World Trade Center on 9/11 should become the justification for the relentless expansion of security agencies. Yet, this is a salutary illustration of how the security agencies in the USA have adopted faulty preconceptions, which have become too embedded within the institution to be abandoned without loss of credibility and prestige.

The book presents a timely assessment of both the human rights costs of the 'war on terror' and the methods used to wage and relentlessly continue that war. It will be of interest to researchers, academics, practitioners and students in the fields of human rights law, criminal justice, criminology, politics and international studies.

1 The “Netanyahu doctrine”

The National Security Strategy of the United States of America, and the invasion of Iraq

Victor Kattan

Did Israel launch that preemptive strike because Saddam had committed a specific act of terror against us? Did we coordinate our actions with the international community? Did we condition this operation on the approval of the United Nations? No, of course not. Israel acted because, it understood, we understood, that a nuclear-armed Saddam would place our very survival at risk. And today the United States must destroy the same regime because a nuclear-armed Saddam will place the security of our entire world at risk.

(Benjamin Netanyahu testifying before the US Congress at a hearing titled “Conflict with Iraq: an Israeli Perspective”, 12 September 2002)

Introduction

The adoption of Article 51 of the Charter of the United Nations on 26 June 1945 marked a watershed as the first collective effort to provide a universal definition of self-defence in international law:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security….¹

Coming after the German surrender but before the Trinity explosion and the bombings of Hiroshima and Nagasaki, the Charter’s definition of self-defence soon provoked a wide-ranging debate as to whether force could be used by states in self-defence against an imminent attack with atomic weapons.² A similar debate took place in the USA following the 23 October 1983 bombing that killed 241 US Marines at their barracks in the Beirut International Airport, the largest loss of Marines in a single incident since the battle of Iwo Jima.³ Then the debate was whether force could be used by states in self-defence against attacks by non-state actors using sanctuaries in other states to launch their attacks.⁴ After the attacks on the Twin Towers in New York City and the Pentagon in Washington, DC on 11 September 2001, these debates came together when scholars asked whether the UN Charter could cope with threats from weapons of mass destruction (WMD) in the event that a terrorist organisation was able to acquire WMD and had the means, and the intention, to deploy them.⁵

In September 2002, the Bush administration published The National Security Strategy of the United States of America (NSS-2002), which generated much commentary.⁶ Coming after 9/11, NSS-2002 articulated a robust, proactive counter-terrorism strategy centred on preventing the USA’s enemies from striking first.⁷ Due to the availability of WMD and the claim that traditional concepts of deterrence did not work against terrorists, it was argued that the threat and the consequences of inaction made more compelling the case for “taking anticipatory action” to defend the USA, “even if uncertainty remains as to the time and place of the enemy’s attack”.⁸ Accordingly, NSS-2002 announced that “[t]o forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively”.⁹

As explained in this chapter, George P. Shultz articulated a broad pre-emptive counter-terrorism doctrine when he was Secretary of State in the Reagan administration when a “war against terrorism” was declared following the 1983 bombings of the US Embassy and Marine Corp barracks in Beirut.¹⁰ The “Shultz doctrine” subsequently found expression in National Security Decision Directive 138 (NSDD-138), which was closely modelled on Israeli doctrine, and which was formulated following discussions between Shultz and Benjamin Netanyahu, then political attaché at Israel’s Washington embassy. In contrast with NSS-2002, which was a public document, the policy enshrined in NSDD-138 was not published until 2010, and faced opposition, ironically, from the Pentagon and the Central Intelligence Agency (CIA). The Attorney-General and the Federal Bureau of Investigation (FBI) also expressed concern over the legality of the policy. Following the attacks on 9/11, many of Shultz’s former colleagues in the State Department found themselves in the Pentagon where they would once more try to shape US policy. The counter-terrorism model they tried to shape in NSS-2002 was influenced by the difficulties they encountered in the Reagan administration while implementing NSDD-138. In short, the argument advanced here is that the Bush doctrine in NSS-2002 was taken from the Shultz doctrine, and that the Shultz doctrine in NSDD-138 was taken from Israeli doctrine.

To illustrate how the Shultz doctrine was taken from Israeli doctrine before it found expression in NSS-2002 this chapter revisits the origins of the “war on terrorism” during the US intervention in the Lebanon following Israel’s 1982 invasion. Reference is made to the terrorism conference organised by the Jonathan Institute in Washington in 1984, to declassified documents from the Reagan Presidential Library on the drafting of NSDD-138 and to early drafts of NSS-2002 that have been published in The Zelikow Papers at the University of Virginia. The chapter also refers to documents from the British archives on Israel’s raid on an Iraqi nuclear reactor in 1981 when the doctrine of pre-emption was first articulated at the UN, to The Rumsfeld Papers on the Iraq War, and to the report of the United Kingdom’s Iraq Inquiry. The chapter has been further informed by discussions with senior officials from both the Reagan and George W. Bush administrations whom I interviewed in Washington.

The “Shultz doctrine” and the origins of the “war on terrorism”

In her leading study on international law and the use of force, Cambridge University Professor Christine Gray observed that the invocation of self-defence to justify using force in response to terrorist attacks was only invoked by a few states prior to 9/11. She mentions the USA and Israel before observing that most states regarded their responses as going beyond Article 51.¹¹ In one of the more detailed analyses of the US policy on counter-terrorism, Manchester University Professor Jackson Maogoto expressed his view that Israel’s regular military incursions into Lebanon, Syria and Tunisia in the 1980s provided a practical manifestation of the tenet underlying the Reagan and Shultz doctrines.¹² Ghent University Professor Tom Ruys, perhaps comes the closest, however, with his trenchant observation that the Shultz doctrine “copied the reasoning hitherto defended by Israel, according to which a state unwilling to prevent terrorist attacks from its territory would be liable to a forcible response in self-defence”.¹³ But Ruys does not explore this observation any further.

The first shift in US policy on counter-terrorism began in response to the 1983 bombing of the US Marine barracks in Beirut. But that attack, despite its scale, and the manner of its commission, was not an act of terrorism, but an unconventional military assault against a military target – so argued Frederic Hof, who was awarded the Purple Heart for his services as US Army Attaché in Beirut, where he was injured. Hof was one of the authors of the Long report commissioned by President Reagan to look into the circumstances of those attacks.¹⁴ Hof’s views did not, however, prevail, because of the terms of reference that had been given to the commission, which obliged it to describe terrorism as an act of war:

The commission believes that the most important message it can bring to the Secretary of Defense is that the 23 October 1983 attack on the Marine Battalion Landing Team Headquarters in Beirut was tantamount to an act of war using the medium of terrorism. Terrorist warfare, sponsored by sovereign states or organized political entities to achieve political objectives, is a threat to the United States …¹⁵

According to Mattia Toaldo, the conclusions of the Long commission was the first time in US history that terrorism was defined as tantamount to an act of war.¹⁶

The deaths of so many Marines personally affected US Secretary of State for Defense Caspar Weinberger (1917–2006) and Secretary of State Shultz, both of whom had served in the Pacific theatre in the Second World War. Weinberger had served with the 41st Infantry Division and Shultz with the US Marine Corps where some of the fiercest fighting against Japan took place.¹⁷ Yet, despite their experiences in the Pacific, both men responded very differently to the attack on the Marines’ barracks. Whereas for Weinberger the lesson was never to send American soldiers into harm’s way without a clear objective and clear national security goals, Shultz wanted to strike back at the terrorists even though it was not clear at the time who was responsible for the bombing.¹⁸

The debate on how to respond to the Beirut bombings was deeply personal for both men as Weinberger opposed the decision to send the Marines to Beirut and clashed with Shultz who wanted to send the Marines back into Lebanon after they had already achieved their goal of evacuating Palestine Liberation Organization (PLO) fighters from Beirut. (Israel had demanded the evacuation of the PLO in exchange for agreeing to continue autonomy talks with the Palestinians at Camp David.)¹⁹ However, following the Sabra and Chatila massacres that occurred less than two weeks after the Marines had left Lebanon, President Reagan, on the urging of the Israeli government and Secretary of State Shultz, decided to send the Marines back into Beirut.²⁰

Despite the deteriorating security situation in Lebanon, with Israel refusing to withdraw, Shultz argued that the Marines had to stay in Beirut and have their rules of engagement relaxed so that they could assert themselves more forcefully, whereas Weinberger wanted to move the Marines out of Beirut altogether onto US warships offshore.²¹ The problem was that the Marines had been used to secure an Israeli policy goal (the removal of the PLO from Lebanon), and therefore appeared to the warring militias as having taken Israel’s side in the war and that of its Maronite ally.²²

Shortly after the Beirut bombings, Shultz called his friend Donald Rumsfeld, whom he had first met in 1969 when they served in the Nixon administration.²³ Shultz told Rumsfeld that President Reagan needed to appoint a new special envoy to the Middle East to work on the Lebanon crisis and help with the American response to the terrorist attacks. He asked Rumsfeld if he would take a leave of absence from ...