Book Review – The War on Terror: The Legal Dimension
By Col. James P. Terry
Reviewed by Rosanna Tamam, GPSLD Intern
This book explores the various dimensions coloring the United States' approach to the violent war on terror. Through historical analysis, Terry tackles the contemporary legal foundation for the United States' responses specifically to the wars in Afghanistan and Iraq after 9/11. He aims to more fully and accurately inform American citizens about both longstanding and newer phenomenon developed within the fields of national security law and international law. Terry skillfully designed this book so that both experts and novices could appreciate, understand, and benefit from the paramount topics of discussion.
Controversies in various different arenas were introduced through historical background, insight into the political culture of the time and environment, as well as through presentation of legal and policy implications. Two of the most prominent themes throughout the book were recognizing how terror violence differs from methods of war and further explaining how the right of self-defense moved to the forefront in the face of terror violence. Terry artfully described the recent terror violence as an "esoteric area of national security law," largely because it is an unrecognized legal regime, which does not follow the customs and norms of warfare. It has become increasingly difficult to effectively respond to individuals like members of al Qaeda who are under no national authority and respect few legal boundaries. They typically do not display any distinguishing military insignia and do not carry arms openly, often hiding through civilian status.
This raised the notion of self-defense, which was codified as an inherent right "subject to customary and international law" in Article 51 of the 1945 UN Charter. What is or should be the standard for justifiable anticipatory self-defense? Initially, President Reagan introduced this approach shift from reactive to proactive in National Security Decision Directive 138 (NSDD 138) in response to the terrorism in Libya. When responding to 9/11, President George W. Bush aligned with this "use of force before the attack occurs" mentality, raising the question of how much evidence or linkage is enough to warrant military action. What causes more harm? What are the legal implications of acting based on "plausible but incomplete intelligence?" What if pursuing more accurate intelligence becomes an excuse for non-action? All of these questions also tap into the realm of constitutional law, fueling the tension between Congress's Article I declaration of war powers and the Executive's Article II commander-in-chief powers. In the aftermath of 9/11, there were no public or congressional objections to the President's actions during a time of such imminent threat. Debates surrounding covert action, the use of drones, and what constitutes "hostilities" were all additional dilemmas examined.
This book raised an abundance of other crucially important questions regarding the War on Terror. A number of these inquiries related to the steps taken after terrorists were detained. For example, there is still no universally agreed upon definition of "torture" nor universally agreed upon consensus regarding the involvement in or effectiveness of enhanced interrogation methods. The U.S. refers to the standards established in the UN Convention Against Torture. President Bush felt that the U.S.'s treatment of terrorist detainees did not constitute any violations while President Obama argued that it did. More so, many scholars have repeatedly argued that the use of torture results in unsuccessful and unreliable effects. Still another problematic component is that Section 2340A of the UN Convention Against Torture makes the offense very difficult for prosecutors to prove.
Regarding the detention of enemy combatants, Terry discussed the legal framework behind whether aliens held by military forces in foreign territory were entitled to habeas corpus in the U.S. In Boumediene v. Bush (2008), the Supreme Court announced a controversial and uncharted ruling, which held that Guantanamo Bay detainees were entitled to a right of habeas corpus to challenge the legality of their detention and were also entitled to prompt hearings. Upon analysis and review of legal precedent, Terry warned that this exemplified a threat made by the Supreme Court to our government's system of checks and balances. Furthermore, these legal challenges fostered a conversation about how military commissions are not subject to the same constitutional requirements that are applied in the federal court system. Fundamentally, there are also systematic and legal differences ingrained in the Military Commissions Act (MCA) and the Uniform Code of Military Justice (UCMJ). The potential disclosure of classified information during litigation also proves problematic.
Organizationally, this book was structured similarly to a thorough compilation of major themes. Terry addressed a spectrum of legal and political issues and then offered brief personal insight regarding how to practically improve or solve some of these dilemmas through counterterrorism tactics. He impressively relayed the legal framework and parameters for attempting to fend off future attacks on the U.S.'s critical infrastructure. This discussion largely pertained to the increasing modern threat of information technology attacks and how cyber warfare must be treated as a "variant of terrorist activity." Although each chapter seemed to be separately topic-focused, there remained an underlying yet overarching thread tying each chapter together.
Ultimately, Terry has provided an important overview for experts, scholars, and political scientists interested in the most contemporary legal issues facing our nation in national security law, international law, and constitutional law. He has also provided an invaluable resource for people who might not have any educational background in these fields. His work challenges readers to think beyond commonly discussed debates like balancing national security interests while respecting personal liberties. Instead, readers are compelled to recognize how difficult it has become post-9/11 to even distinguish when the U.S. is at "war" from when we are not, in an age increasingly plagued by terrorism. Finally, there are numerous legal, political, and sociocultural complexities at work in The War on Terror and Terry does a commendable job providing readers with a clearer, more informative understanding of global terrorism.
Terry, a retired Marine Colonel, has enjoyed a long, distinguished military and legal career after 27 years served on active duty and as a Marine Judge Advocate General (JAG). He worked as the Legal Counsel to the Chairman of the Joint Chiefs of Staff under General Colin Powell and General John Shalikashvili from 1992-1995. From 2001-2005, he served as Principal Deputy Assistant Secretary and Deputy Assistant Secretary in the Department of State. From 2005-2011, Terry was Chairman of the Board of Veterans Appeals in the Department of Veterans Affairs. He has authored over 45 articles on national security law. Terry currently serves as a Senior Fellow with the Center for National Security Law at the University of Virginia School of Law.