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Legal and military experts explored the evolution of armed conflict, counterterrorism and related laws last week during an American Bar Association event.
The Counterterrorism and the Law seminar, sponsored by the ABA Section of Administrative Law and Regulatory Practice, featured seven panels discussing topics from the recent ABA publication “The Fundamentals of Counterterrorism Law,” edited by Lynne Zusman.
“Counterterrorism is really a more complex and difficult level of war,” retired Army Brig. Gen. Michael J. Meese said. “It requires a sophisticated understanding to provide effective policy guidance and implementation.”
Meese described how armed conflicts have evolved during the past decade or so, causing the United States’ strategy to change as well. “We’ve seen there’s a very different enemy than was conceived of in many of the laws that deal with warfare,” he said, noting that in modern times the U.S. faces threats from nonstate actors and religious extremists.
In today’s warfare, Meese said, knowing granular details about your enemy — not just identifying them as part of the enemy group — as well as understanding the social context surrounding that enemy is vital in counterterrorism efforts.
He also stressed the importance of engaging in the three elements of warfare — offense, defense and stability operations — all at the same time.
“If we just conduct offensive operations internationally — without simultaneously providing economic assistance, developmental assistance, government support to be able to build up the legitimacy of those governments and host nations to be able to take care of terrorists in their midst — we’re not using all the parts that we would need to be able to effectively wage war,” Meese said.
He lamented that the laws of warfare aren’t adapting to these new changes in the world. “Instead of figuring out how to accomplish the objectives of our nation … we spend a lot of time with legal folks trying to figure out how to adjust, adapt and work around many of the laws.”
One element that is changing is the justification behind the lethal use of force, said Gregory M. Huckabee, a professor at the University of South Dakota and retired Army judge-advocate.
He explained that self-defense, the original justification for the lethal use of force, is now outdated because of changes in how armed conflict occurs. As a result, the justification has expanded to include anticipatory self-defense, in which a country acts first because of an imminent threat.
And after the 9/11 terrorist attacks, the preventive war justification — in which a country acts before there is an imminent threat — has become more valid in the eyes of the world.
“Customary international law is developing in the direction of accepting preventive warfare in this context as a legitimate tool,” said Michael J. Davidson, an attorney in the Department of Homeland Security.
“There’s a fine distinction between a preventive war and a war of aggression,” he added. “Quite frankly, I’m not entirely sure where that line is.”
But what if a country takes action using the preventive war justification and then its information turns out to be wrong?
“You’re basically judged by what you know at the time of action but not what was later learned,” Davidson said.
To learn more about counterterrorism and the law, check out the new ABA book “The Fundamentals of Counterterrorism Law.” The book, which includes 17 chapters written by 26 different authors, analyzes major topics in counterterrorism, including ongoing issues surrounding the Guantanamo Bay detention facility, the challenges of applying the law of armed conflict to contemporary terrorist organizations and the unsettled legal questions surrounding drones.