The War on Terror: Jurisdiction as the Fulcrum Between Law and Justice

The War on Terror. Yes, it continues unabated. Yes, it is a reductio ad absurdum to refer to waging war (a state of conflict) on a tactic (terror). Nevertheless, the U.S. was attacked on 9/11 and remains, in most people’s minds, “the world’s policeman“. While it is arguable that China is challenging America’s economic hegemony, the battlefield is now re-staged in U.S. courts dealing with “enemy combatants” and military tribunals. I wrote about the legal and moral implications of putting Omar Khadr on trial  for war crimes before a U.S. military tribunal here. Khadr’s military trial was postponed after Khadr’s Pentagon-appointed counsel, U.S. Army Lt.-Col. Jon Jackson —collapsed and subsequently underwent gall bladder surgery. Even though Khadr fired Lt. Col. Jackson, Jackson refused, so the trial continues on October 18, 2010.
Jurisdiction: n. The right and power to interpret and apply the law, derived from the Latin ius, iuris meaning “oath” and dicere meaning “to speak”. 

The law speaks. The court speaks. The government speaks.

When the law or court speaks, it does so in the form of judicial (or adjudicatory) jurisdiction by the assertion of control, power or authority based upon either personal, territorial, or subject-matter jurisdiction over the litigants (in personam jurisdiction) or against the world, (in rem). Judicial jurisdiction is contrasted with legislative or regulatory jurisdiction, that is, when the government speaks it does so with the authority of a state to apply its national or domestic laws to certain conduct, subject to the self-imposed constraints of international law, treaties and conventions.
The concept of jurisdiction draws from public international law, private international law (or conflict of laws), constitutional law and the powers of the executive and legislative branches of government to allocate resources to serve the needs of its citenzry. This is what some would call the “administration of justice”. 
In 1917, Justice Oliver Wendell Holmes espoused modern legal positivism in his Supreme Court dissent to the majority opinion in Southern Pacific v. Jensen, “The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi-sovereign that can be identified.” 
While the common law may not brood, Lady Justice often weeps. The theory of justice is an elusive, if not ephemeral concept, normally the bailiwick of legal or political philosophers struggling to define the principles of moral rightness or equity , often based upon normative, deontological or teleological theories. During my vacation recently, I read most, but not all, of Amartya Sen’s The Idea of Justice. I didn’t finish reading the book, so I don’t feel it appropriate to write a review. The reason I didn’t finish reading the book is that I naively assumed that Professor Sen would offer insight into the relationship between law and justice or, at least, the lack thereof. Not even a footnote regarding the 20th century debates between Hartian legal positivism and Dworkian legal interpretivism.  The Idea of Justice is an engaging exposition—from the headmaster of the school of thought known as “transcendental institutionalism”. It is also an homage and critique of John Rawls, who built on theoretical foundations laid down by Kant and Rousseau.  There is, also an informative treatment of Indian classical philosophy centering on the debate between 3rd-century emperor Ashoka, a liberal optimist, and Kautilya, a strict institutionalist which underpins a decidedly Eastern orientation to Sen’s philosophy of pluralist egalitarianism: the moral choices inherent when trying to maximize individual liberty in a world filled with finite resources and differing capabilities. I’ll probably finish reading the book on my next flight.
The Idea of Justice did get me thinking that if law is to be just, it must be based on something rational, not merely a tautology: the law is the law because it is the law.  If the law is to be legitimate and just, then limiting the freedom of an individual through the exercise of judicial or political jurisdiction must be based upon an objectively rational set of standards. Ultimately, which law applies (choice of law) informs whether a court has properly and equitably exercised jurisdiction in a particular case and whether the court’s decision is capable of yielding a fair and just result. One might say that jurisdiction is the fulcrum between law and justice.
Serendipity then led me today to finding this provocative new article by  Mary Ellen O’Connell   (Notre Dame Law School) entitled “The Choice of Law Against Terrorism“, Journal of National Security Law (forthcoming)/Notre Dame Legal Studies Paper No. 10-20. Professor O’Connell presents a very compelling argument that wartime privileges —claimed by the Bush Administration and continued by the Obama administration —are based upon an faulty choice of law:
The Obama administration has continued to apply the wartime paradigm first developed by the Bush administration after 9/11 to respond to terrorism. In cases of trials before military commissions, indefinite detention, and targeted killing, the U.S. has continued to claim wartime privileges even with respect to persons and situations far from any battlefield. This article argues that both administrations have made a basic error in the choice of law. Wartime privileges may be claimed when armed conflict conditions prevail as defined by international law. These privileges are not triggered by declarations or policy preferences.

O’Connell’s observes,

“Choice of law is part of the consideration of every legal matter. In most cases the choice is probably obvious and requires no particular effort. A good many issues do require careful consideration, however, and for those we have choice of law rules. Choice of law rules steer us toward the proper law for any particular matter, whether local, national, regional, or international law. If the matter implicates an international boundary, international choice of law rules will guide the choice.

In the terrorism-related cases discussed above, international law also determines the choice of law. In these cases, international choice of law rules sends us, generally, to the domestic criminal law of the United States, Pakistan, Yemen, and other states. It does not send us to the law of armed conflict.

In the days following the September 11 attacks, however, the United States asserted a different choice of law to deal with the perpetrators. President Bush declared a “war” on terrorists that ―will not end until every terrorist group of global reach has been found, stopped and defeated. In the months that followed, we saw the administration invoke the core privileges available to lawful belligerents during an armed conflict, including an expanded right to kill, a right to detain without trial, and a right to search and seize cargo of foreign-flagged vessels.” [citations omitted]

 O’Connell concludes:

“On 9/11, the United States made a radical change in its choice of law against terrorism. After a century of pursuing terrorists using criminal law and police methods, the United States invoked the law of armed conflict and military means. This article has presented evidence that the change was and is not supported by international law. In November 2008, this author and colleagues David Graham and Phillipe Sands drew up a set of principles to guide the Obama administration toward reforms of post-9/11 U.S. laws and policies. Our aim was to improve U.S. compliance with the world‘s law against terrorism. The first principle was to stop relying on war as the legal and policy basis for confronting terrorists:

The phrase “Global War on Terrorism” should no longer be used in the sense of an on-going “war” or “armed conflict” being waged against “terrorism.” Nor should it serve as either the legal or security policy basis for the range of counter- and anti-terrorism measures taken by the Administration in addressing the very real and present challenges faced by the United States and other nations in addressing terrorism. 

Peacetime criminal law, not the law of armed conflict is the right choice against sporadic acts of terrorist violence. The example of the United States adhering closely to its legal obligations in this vital area can only help create a world of greater respect for the rule of law. [citations omitted]

The question begs: if “enemy combatants” are not “prisoners of war” entitled to protection under the Geneva conventions and international law, then why are wartime privileges any different?

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