Assessing the legality of counterterrorism measures without characterizing them as law enforcement or military action

Temple Law Review

Volumn 80, Issue 3, 2007, Pages 661-710

  Maggs, Gregory E ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 56249098372     PISSN: 08998086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (410)

1. For a general treatment of law enforcement, military, and other governmental responses to terrorism, see generally GREGORY E. MAGOS, TERRORISM AND THE LAW: CASES AND MATERIALS (2005).
2. United States v. Salameh, 152 F.3d 88, 108 (2d Cir. 1998) (describing prosecution of terrorists who detonated van full of explosives under one World Trade Center tower in New York City, killing six, injuring more than one thousand, and causing damages amounting to "hundreds of millions of dollars").
3. Transcript of Sentencing Hearing at 80, United States v. Bin Laden, 126 F. Supp. 2d 290 (S.D.N.Y. 2001) (No. S(7), 98 Cr. 1023), available at http://cryptome.org/usa-v-ubl-78.htm (sentencing of terrorists who participated in bombing of American embassies in Nairobi, Kenya and Dar es Salaam, Tanzania, killing 214 people and wounding many others).
4. See Neil A. Lewis, Moussaoui Given Life Term by Jury over Link to 9/11, N.Y. TIMES, May 4, 2006, at Al (reporting conviction of Zacarias Moussaoui for conspiracy with hijackers involved in 9/11 attacks).
5. See generally U.S. Department of Defense, Official Website, http:://www.defenselink.mil (last visited May 26, 2008) for complete official news on the military campaign being fought by the United States against terrorism. See infra Part II for a discussion of several military responses.
6. See, e.g.. Associated Press, Egypt Sentences 6 to Death for Attacks, N.Y. TIMES, Jan. 14, 1996, at 12 (describing military process used against suspected terrorists);
7. Susan Sachs, An Investigation in Egypt Illustrates Al Qaeda's Web, N.Y. TIMES, Nov. 21, 2001, at Al (describing major antiterrorism prosecutions in Egypt).
8. See, e.g., Uri Dan, Israel Blows Away 2 Top Terrorists, N.Y. POST, Nov. 2, 2005, at 30 (describing targeted killing of suspected terrorists);
9. Charles A. Radin, Palestinian Leader Convicted in Israel: Five Life Terms Sought in Killings, BOSTON GLOBE, May 21, 2004, at A8 (describing prosecution of terrorists in Israel).
10. See, e.g., Nadezhda Gaisenok & Alexander Shashkov, Russia Court to Examine Appeal of 3 Chechens Convicted for Terror, ITAR-TASS (Russ.), Nov. 9, 2005, at 27 (discussing criminal prosecution of terrorists in Russia);
11. David Holley, Separatists Tied to '99 Bombings, L.A. TIMES, May 1, 2003, at A5 (discussing Russian military responses to terrorist bombings of apartment buildings in Moscow).
12. See, e.g., Sam Cohen, Turkey's Military Rulers Post a Sharp Decline in Terrorism, CHRISTIAN SCI. MONITOR, Nov. 25, 1980, at 6 (addressing Turkey's military responses to terrorism);
13. Andrew Finkel, A Foregone Conviction: The Trial of Kurdish Leader Abdullah Ocalan Is Set to Begin in Turkey amid Questions of Fairness, TIME INT'L, June 7, 1999, at 39 (discussing anticipated trial of Kurdish leader).
14. See, e.g., Brian Lavery, Britain to Halve Its Forces in Ulster, INT'L HERALD TRIB., Aug. 3, 2005, at 3 (describing British military responses to terrorism in Northern Ireland);
15. David Leppard & Richard Woods, Britain's Secret War on Terror, SUNDAY TIMES (London), Mar. 13, 2005, at 16 (describing use of trials to combat terrorism).
16. See infra Parts II.C-E for an examination of the arguments of those who oppose targeted killing, indefinite detention, and special tribunals for suspected terrorists.
17. See infra Parts II.A-H for a discussion of the government's arguments with respect to the use of military force against terrorists, the targeted killing of terrorists, the indefinite detention of terrorists, and other antiterrorism measures.
18. See, e.g., Thomas Sowell, Fanatics in Court, S. FLA. SUN-SENTINEL, Jul. 26, 2002, at 31A ("We never threw open our courtroom doors to captured Nazi prisoners of war in World War II, much less give [sic] them access to our press.").
19. See Farnaz Fassihi et al., Fateful Strike: Zarqawi's Death, Completion of Cabinet Raise Hopes in Iraq, WALL ST. J., Jun. 9, 2006, at Al (describing air strike and related raids).
20. Reuters, Rights Group Questions Attack: Amnesty Says U.S. Missile Strike in Yemen May Be Illegal, WASH. POST, Nov. 9, 2002, at A21 (describing incident in which CIA killed persons suspected of participating in bombing of USS Cole). For further discussion of this dispute in Yemen,
21. see infra Part U.C.
22. E.g., Joel Greenberg, Palestinian Militant Slain in Damascus: Israel Blamed; Revenge Vowed, CHI. TRIB., Sept. 27, 2004, §1, at 3 (describing Israel's practice of targeted killing).
23. Peter Baker, Russia Moving to Eliminate Chechen Rebel Leaders, WASH. POST, Apr. 20, 2004, at A13 (detailing reports that Russia killed guerrilla called "Khattab" in 2002 with poisoned letter).
24. See infra Part II.C for a description of legal rules that may apply to targeted killing.
25. See Tennessee v. Garner, 471 U.S. 1, 11 (1985) (rejecting unqualified use of deadly force against fleeing felony suspects).
26. See U.S. DEP'T OF ARMY, FIELD MANUAL NO. 27-10, THE LAW OF LAND WARFARE ¶ 29 (1956) (citing Convention Respecting the Laws and Customs of War on Land, Annex art. 23(c), Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631).
27. See infra Part IV.D for a discussion of examples that illustrate efforts to address counterterrorism measures as counterterrorism measures.
28. The discussion makes no claims about which side of the debate has the better argument as a matter of policy or which side should win in the courts.
29. U.N. Charter an. 2, para. 4.
30. Ibid
31. Id. art. 51 ("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. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council....").
32. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 201 (July 9) (concluding that construction of wall by Israel was "contrary to international law").
33. Id. at 182.
34. Id. at 184.
35. See id. at 194 (noting that Israel made this contention in its report to Secretary General). Israel did not press a substantive argument before the court. It contended that the General Assembly had acted in an ultra vires manner in seeking an advisory opinion because the Security Council was actively addressing the Israeli-Palestinian conflict.
36. Id. at 148. In addition, because the General Assembly was seeking an advisory opinion and had not named Israel as party to the lawsuit, Israel had no duty to make a substantive argument. 2004 I.C.J. at 245 (declaration of Judge Buergenthal). But the court noted that Israel previously told the United Nations General Assembly that it was constructing the fence in self-defense.
37. Id. at 194 (advisory opinion)
38. (citing S.C. Res. 1368, U.N. Doc. S/RES/1368 (Sept. 12, 2001);
39. S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001)).
40. Id. at 194.
41. Id.
42. Id.
43. See Mary Ellen O'Connell, Enhancing the Status of Non-State Actors Through a Global War on Terror?, 43 COLUM. J. TRANSNAT'L L. 435, 451 (2005) (summarizing court's reasoning in rejecting Israel's position).
44. Id.
45. 2004 I.C.J. at 240 (declaration of Judge Buergenthal).
46. See id. at 242-43 (analyzing both issues).
47. Id.
48. See, e.g., Letter from the Permanent Representative of the United States of America to the United Nations, Addressed to the President of the Security Council, U.N. Doc. S/2001/946 (Oct. 7, 2001) ("In accordance with Article 51 of the Charter of the United Nations, I wish, on behalf of my Government, to report that the United States of America, together with other States, has initiated actions in the exercise of its inherent right of individual and collective self-defence following the armed attacks that were carried out against the United States on 11 September 2001.");
49. see also U.N. Charter art. 51 ("Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council....").
50. Lord Robertson, NATO Sec'y Gen., Statement of NATO Support of the United States Following September 11, 2001 (Oct. 2, 2001) (transcript available at http://www.nato.int/docu/speech/2001/s011002a.htm) (declaring that 9/11 attacks on United States would be regarded as "armed attack" on NATO member, justifying full NATO response).
51. S.C. Res. 1368, supra note 29.
52. See id. (articulating Security Council's unequivocal condemnation, expression of deepest sympathy, enjoinder to all states to "bring to justice" those responsible and to cooperate to prevent future terrorism, and expression of readiness, though remaining "seized of the matter").
53. See Sean D. Murphy, Terrorism and the Concept of "Armed Attack" in Article 51 of the U.N. Charter, 43 HARV. INT'L L.J. 41, 45-51 (2002) (discussing factors that can make terrorist attack reach threshold of "armed attack").
54. Id. at 45.
55. Id. at 45-46.
56. El-Shifa Pharm. Indus. Co. v. United States, 378 F.3d 1346, 1349 (Fed. Cir. 2004).
57. The second sentence of Article 51 requires a nation exercising self-defense to notify the Security Council. U.N. Charter art. 51. The United States fulfilled this requirement by sending a letter describing the reasons for the attacks in Sudan and Afghanistan. Letter from the Permanent Representative of the United States of America to the United Nations, Addressed to the President of the Security Council, U.N. Doc. S/1998/780 (Aug. 20, 1998).
58. See Craig Turner & Doyle McManus, Sudan Gets Little Support for a U.N. Probe of U.S. Attack, L.A. TIMES, Aug. 25, 1998, at A6 (reporting on Sudan's attempt to involve United Nations in dispute).
59. Jules Lobel, The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan, 24 YALE i. INT'L L. 537, 551 (1999).
60. The United Nations General Assembly passed a resolution that "[c]ondemns the military attack perpetrated against the Socialist People's Libyan Arab Jamahiriya on 15 April 1986, which constitutes a violation of the Charter of the United Nations and of international law." G.A. Res. 38, ¶ 1, U.N. GAOR, 41st Sess., Supp. No. 53, U.N. Doc. A/RES/41/38 (Nov. 20, 1986). The United States had viewed the terrorist incident as an armed attack and had argued that it could use military force in self-defense under Article 51.
61. See Letter from the Acting Permanent Representative of the United States of America to the United Nations, Addressed to the President of the Security Council, U.N. Doc. S/17990 (Apr. 14, 1986) (reporting justification for attack to Security Council).
62. See Associated Press, Israel Calls Bombing a Warning to Terrorists, N.Y. TIMES, Oct. 2, 1985, at A8 (reporting on attack and Israel's hopes for its effects). Israel asserted that it was acting in self-defense in response to an armed attack as permitted under Article 51.
63. Id. But the Security Council (with the United States abstaining) passed a resolution saying that it "[c]ondemns vigorously the act of armed aggression perpetrated by Israel against Tunisian territory in flagrant violation of the Charter of the United Nations, international law and norms of conduct." S.C. Res. 573, ¶ 1, U.N. Doc. S/RES/573 (Oct. 4, 1985).
64. 18 U.S.C. § 1385 (2000).
65. The Posse Comitatus Act says:
66. Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
67. Id. A "posse comitatus" is a "group of citizens who are [sic] called together to help the sheriff keep the peace or conduct rescue operations." BLACK'S LAW DICTIONARY 1200 (8th ed. 2004).
68. Chandler v. United States, 171 F.2d 921, 936 (1st Cir. 1948).
69. Padilla v. Hanft, 423 F.3d 386, 388 (4th Cir. 2005),
70. cert. denied, 126 S. Ct. 1649 (2006).
71. Id.
72. Id. at 390.
73. Id.
74. Id.
75. Padilla v. Hanft, 126 S. Ct. 1649, 1650 (2006) (Kennedy, J., concurring in denial of certiorari) (describing Padilla's classification and reclassification).
76. See Padilla, 423 F.3d at 397 (upholding Padilla's confinement).
77. See Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564, 588 n.9 (S.D.N.Y. 2002) (discussing merits of Padilla's claim that United States violated Posse Comitatus Act by detaining him),
78. rev'd sub nom. Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003),
79. rev'd, 542 U.S. 426 (2004).
80. Padilla, 233 F. Supp. 2d at 588 n.9.
81. Id.
82. Id.
83. See James Dao, Rifle Is Being Used as Linchpin in Sniper Case, N.Y. TIMES, Nov. 7, 2003, at A25 (describing rifle shooters used to aim through hole in car's trunk);
84. Adam Liptak, Teenage Sniper to Plead Guilty in Two Shootings, N.Y. TIMES, Sept. 25, 2004, at A10 (reporting on plea agreement reached with younger shooter).
85. Carol Morello, Va. Court Upholds Muhammad Sentences: Sniper Could Be Sent to Another State, WASH. POST, Apr. 23, 2005, at B1.
86. See Carol Morello, Victims' Relatives Still Ask, 'Why?': Snipers' Motives Remain Unresolved, WASH. POST, Mar. 11, 2004, at A11 (speculating on motives of snipers).
87. Donald H. Rumsfeld, Sec'y of Def., & Gen. Richard Myers, Chairman of the Joint Chiefs of Staff, News Briefing at the Department of Defense (Oct. 17, 2002) (transcript available at http://www.defenselink.mil/transcripts/ transcript.aspx?transcriptid=3793) [hereinafter DoD Sniper Briefing].
88. See Del Quentin Wilber et al., Spy Planes to Hunt Sniper, BALT. SUN, Oct. 16, 2002, at 1A (reporting on Defense Secretary Rumsfeld's approval of use of military planes carrying nonmilitary law enforcement personnel).
89. See Steve Vogel, Military Aircraft with Detection Gear to Augment Police, WASH. POST, Oct. 16, 2002, at A1 (reporting on technical capabilities of military aircraft in which civilian law enforcement personnel flew).
90. See id. (detailing cooperation between FBI and military).
91. See, e.g., Adam Clymer, Big Brother Joins the Hunt for the Sniper, N.Y. TIMES, Oct. 20, 2002, at C3 (discussing wisdom and legality of tasking aircraft to this purpose);
92. Fred Kaplan & Lyle Denniston, Army Plane Joins Sniper Hunt: Some Question Use of Surveillance Craft, BOSTON GLOBE, Oct. 17, 2002, at Al (noting disagreement among analysts as to legality of operation).
93. See, e.g., Kaplan & Denniston, supra note 72 (making distinction between active and passive support).
94. DoD Sniper Briefing, supra note 68.
95. Id.
96. Id.
97. See Judgment of the Constitutional Court of the Russian Federation of 31 July 1995 on the constitutionality of the Presidential Decrees and the Resolutions of the Federal Government concerning the situation in Chechnya (1995), translation available at http://www.venice.coe.int/docs/1996/CDL- INF(1996)001-e.asp (considering constitutionality of decree issued by President Yeltsin to use military force against Chechen rebels) [hereinafter Judgment concerning the situation in Chechnya].
98. Id. ¶ 1.
99. Id.
100. Id.
101. Id. ¶ 6.
102. Judgment concerning the situation in Chechnya, supra note 77, ¶ 6.
103. Id. (internal quotation marks omitted).
104. John F. Burns, After Long Hunt, U.S. Bombs Kill Al Qaeda Leader in Iraq, N.Y. TIMES, June 9, 2006, at Al (reporting successful killing of al-Zarqawi by air strike).
105. See Carlotta Gall & Douglas Jehl, U.S. Raid Killed Qaeda Leaders, Pakistanis Say, N.Y. TIMES, Jan. 19, 2006, at Al (detailing air strikes in northeastern Pakistan).
106. See id. (reporting that strike killed two senior al Qaeda leaders as well as eighteen civilians).
107. Mohammed Khan & Douglas Jehl, Attack Kills a Top Leader of Al Qaeda, Pakistan Says, N.Y. TIMES, Dec. 4, 2005, ¶ 1, at 24.
108. James Risen & Judith Miller, C.I.A. Is Reported to Kill a Leader of Qaeda in Yemen, N.Y. TIMES, Nov. 5, 2002, at A1.
109. Josh Meyer, CIA Expands Use of Drones in Terror War, L.A. TIMES, Jan. 29, 2006, at A1.
110. Id.
111. Chechnya Vow Cast a Long Shadow, MOSCOW TIMES, Feb. 26, 2008, available at 2008 WLNR 3691248.;
112. see also Baker, supra note 17 (discussing Russian efforts to thwart Chechen rebel movement).
113. Between 2000 and mid-2003, the Israeli government reportedly engaged in the targeted killing of about 150 Palestinian militants. Molly Moore, Israel's Lethal Weapon of Choice: As Assassinations of Militants Increase, Citizens' Uneasiness Grows, WASH. POST, June 29, 2003, at A1 (reporting Israeli use of "targeted killings").
114. U.S. CONST. amend. V.
115. Id. amend. IV.
116. E.g., Tennessee v. Garner, 471 U.S. 1, 11 (1985) (discussing constitutionality of use of deadly force to prevent escape of felony suspects).
117. International Covenant on Civil and Political Rights, G.A. Res. 2200, art. 6, U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (Dec. 16, 1966) [hereinafter ICCPR].
118. European Convention for the Protection of Human Rights and Fundamental Freedoms art. 2, ¶ 1, Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter European Convention].
119. Id. art. 2(2)(b).
120. Eighth U.N. Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, Aug. 27 - Sept. 7, 1990, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, 112, U.N. Doc. A/CONF.144/28/Rev.1 (1991), available at http://www.asc41.com/undocs.htm (follow "Eighth UN Congress on the Prevention of Crime and Treatment of Offenders" hyperlink; then follow A/CONF.144/28/REV.1 hyperlink).
121. Id. at 112, ¶ 9.
122. Id. at 112, ¶ 10.
123. See U.S. DEP'T OF ARMY, supra note 20, ¶ 29 (1956) (addressing acceptable force after enemies surrender (citing Convention Respecting the Laws and Customs of War on Land, Annex art. 23(c), Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631)). This has been the law for a long time. In the United States, the Lieber Code of 1863 (promulgated as a military order to govern Union forces during the Civil War) famously declared: "Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war...." ADJUTANT GEN.'S OFFICE, GENERAL ORDERS NO. 100, INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD art. 15 (Gov't Printing Office 1898) (1863), available at http://www.yale.edu/lawweb/avalon/ lieber.htm.
124. Convention Respecting the Laws and Customs of War on Land, Annex art. 23(c), Oct. 18, 1907, 36 Stat. 2277, 2302, 1 Bevans 631.
125. U.S. DEP'T OF ARMY , supra note 20, ¶ 31.
126. Id.
127. Reuters, supra note 15.
128. Id.
129. Michael Powell & Dana Priest, U.S. Citizen Killed by CIA Linked to N.Y. Terror Case, WASH. POST, Nov. 9, 2002, at A1.
130. Id.
131. U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Report of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, Asma Jahangi, Addendum: Summary of Cases Transmitted to Governments and Replies Received, 11 611-12, U.N. Doc. 2004/7/Add.1 (Mar. 24, 2004);
132. U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Extrajudicial, Summary or Arbitrary Executions, Report of the Special Rapporteur, Asma Jahangi, Submitted Pursuant to Commission on Human Rights Resolution 2002/36, ¶ 37, U.N. Doc. E/CN.4/2003/3 (Jan. 13, 2003) (prepared by Asma Jahangir), available at http://www. extrajudicialexecutions.org/reports/E_CN_4_2003_3.pdf
133. [hereinafter Report of the Special Rapporteur].
134. Report of the Special Rapporteur, supra note 110, ¶ 37.
135. See Letter from Jeffrey De Laurentis, Chief of Section, Political & Specialized Agencies of the Permanent Mission of the U.S.A. to the U.N. Office at Geneva, to the Secretariat of the Comm'n on Human Rights, 2, U.N. Doc. E/CN.4/2003/G/80 (Apr. 22, 2003), available at http://ap.ohchr.org/ documents/alldocs.aspx?doc_id=3500 (follow "E/CN.4/2003/G/80" hyperlink)
136. [hereinafter U.S. Yemen Response] (describing Special Rapporteur's letter).
137. Id.
138. (quoting U.N. Doc. E/CN.4/2003/3, supra note 110, ¶ 39).
139. Id.
140. (quoting U.N. Doc. E/CN.4/2003/3, supra note 110, ¶ 39).
141. Id. at 2-3.
142. Id. at 5.
143. Hors de combat means "out of the fight." The term usually refers to combatants who have become disabled by injury or illness.
144. Letter from De Laurentis, supra note 112, at 5.
145. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (stating that under Constitution, government may not detain individuals without adequate procedural protections).
146. See FED. R. CRIM. P. 5(a)(1)(A) ("A person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge, or before a state or local judicial officer . . . unless a statute provides otherwise.");
147. County of Riverside v. McLaughlin, 500 U.S. 44, 57 (1991) (requiring probable cause hearing or arraignment within forty-eight hours of arrest).
148. See FED. R. CRIM. P. 5(b) (acknowledging probable cause filing requirement when suspect has been arrested without warrant).
149. See U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial....");
150. U.S.C. § 3161(c)(1) (2000) (providing right to trial. ordinarily within seventy days after defendant first appears before judicial officer).
151. See 18 U.S.C. § 3164(c) ("No detainee... shall be held in custody pending trial after the expiration of such ninety-day period required for the commencement of his trial.");
152. FED. R. CRIM. P. 48(b)(3) (permitting dismissal of indictment for unreasonable delay in bringing defendant to trial).
153. European Convention, supra note 97, art. 5.
154. See Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 HARV. L. REV. 2047, 2106 n.271 (2005) (discussing enemy combatants taken by United States during World War II).
155. 542 U.S. 507 (2004) (plurality opinion).
156. Hamdi, 542 U.S. at 518 (first alteration in original)
157. (quoting Ex parte Quirin, 317 U.S. 1, 28, 30 (1942)).
158. See id. at 589 (Thomas, J., dissenting) (expressing agreement with plurality that government can detain enemy combatants).
159. See Padilla v. Hanft, 423 F.3d 386, 391-92 (4th Cir. 2005) (interpreting Supreme Court's definition of "enemy combatant" set forth in Hamdi to include U.S. citizen captured on U.S. soil),
160. cert. denied, 126 S. Ct. 1649 (2006).
161. See Hamdi, 542 U.S. at 534 (plurality opinion) (discussing habeas petitioner's burden to rebut government evidence that he is enemy combatant).
162. See id. at 533-34 (noting that government may-use hearsay to establish enemy combatant status).
163. The plurality opinion in Hamdi did not reach this issue because Hamdi had counsel. Id. at 539. The United States military traditionally has not afforded counsel to detainees who dispute their status as combatants.
164. See Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Regulation 190-8, § 1-6 (1997) (stating procedures for tribunals to use in deciding status of persons detained in conflict and making no provision for counsel);
165. see also Tung Yin, Procedural Due Process to Determine "Enemy Combatant" Status in the War on Terrorism, 73 TENN. L. REV. 351, 409 (2006) (noting that "there is no historical precedent for the appointment of counsel to enemy prisoners of war in order to challenge the legality of their confinement").
166. See Hamdi, 542 U.S. at 518 (plurality opinion) (concluding that United States may hold enemy combatants for "duration of the particular conflict").
167. See supra notes 54-64 and accompanying text for a discussion of the facts and the decision in the Padilla case.
168. Padilla v. Hanft, 389 F. Supp. 2d 678, 691 (D.S.C. 2005),
169. rev'd, 423 F.3d 386 (4th Cir. 2005),
170. cert, denied, 126 S. Ct. 1649 (2006).
171. See id. at 692 (ordering release of Padilla).
172. See id. at 692 n.14 (noting government could still bring charges against Padilla).
173. Amnesty International UK, USA: One Year On - The Legal Limbo of the Guantanamo Detainees Continues, Jan. 10, 2003, http://www.amnesty.org.uk/ news_details.asp?NewsID=14285.
174. Id. One difficulty, rarely mentioned, is that many of the detainees do not want to be released because they would face far worse treatment in their home countries. In urging the United States to release those detainees, Amnesty International therefore has urged the United States not to release anyone "to any country where they would be at risk of torture, execution or other serious human rights abuses."
175. Id.
176. Padilla, 423 F.3d at 394-95.
177. Id. at 392.
178. See Padilla v. Hanft, 126 S. Ct. 1649, 1650 (2006)
179. (Kennedy, J., concurring) (discussing Court's denial of certiorari due to Padilla's status as criminal suspect).
180. Lawless v. Ireland (No. 3), 1 Eur. Ct. H.R. 15, 17 (1961).
181. Id. at 31.
182. Id. at 32.
183. Id. at 35 (internal quotation marks omitted).
184. Id. at 21-28.
185. European Convention, supra note 97, art. 5(1)(c). The provision also allows for arrest if "reasonably considered necessary" to prevent commission of an offense, or to prevent fleeing after the commission of an offense.
186. Id. These exceptions to the arrest prohibition were not at issue in Lawless.
187. See Lawless, 1 Eur. Ct. H.R. at 17, 21-28 (discussing argument in relation to Article 5 of European Convention).
188. See id. at 27-28 (explaining why Lawless's detention was contrary to Article 5).
189. See id. at 47 (noting measures taken by Irish government to derogate properly from European Convention). The European Convention provides that "[i]n time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation." European Convention,
190. supra note 97, art. 15(1). But a nation must follow specific procedures to effect a derogation.
191. Id, art. 15(3).
192. U.S. CONST, amend. V.
193. Id. amend. VI.
194. ICCPR, supra note 96, art. 14(1).
195. Id. art. 14(5).
196. BLACK'S LAW DICTIONARY, supra note 52, at 1013.
197. See WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 831-45 (2d ed. 1920) (discussing history of military commissions prior to World War II).
198. See MAGGS, supra note 1, at 383 & n.1 (noting prominent use of military tribunals after World War II and describing these tribunals).
199. See Ex parte Quirin, 317 U.S. 1, 30-31 (1942) (discussing various types of violations of laws of war).
200. See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2788-91 (2006) (recognizing that procedures used in post-World War II military commissions, established in common law fashion, did not follow civilian or military procedures, but holding that Congress by statute now has mandated procedures military commission must follow).
201. Ex parte Quirin, 317 U.S. at 44 (noting that no jury is required for trial by military tribunal).
202. See In re Yamashita, 327 U.S. 1, 17 (1946) (noting war crime charges tried by military tribunals need not be as specific as those for common law indictments).
203. Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833, 57,834 (Nov. 16, 2001) (authorizing and describing military commissions).
204. See id. at 57,833 (describing actions of international terrorists and United States' obligation to respond).
205. See id. at 57,834-35 (describing military commissions, their procedures, and rights afforded to war criminals).
206. See Brief for Petitioner Salim Ahmed Hamdan at 9, Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (No. 05-184) (noting United States' limited use of military commissions and traditions favoring use of civilian courts).
207. Brief for Respondents at 28-29, Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (No. 05-184) (arguing that Hamdan's characterization as enemy combatant allowed for trial by military commission).
208. 126 S. Ct. 2749 (2006).
209. Hamdan, 126 S. Ct. at 2786-98 (arguing that commissions, as created by President, did not comply with American common law of war and therefore lacked power to try Hamdan).
210. Id. at 2790-91 (discussing uniformity code). Article 36(a) of the Uniform Code of Military Justice gives the President authority to promulgate rules of evidence and procedures for various military tribunals including courts-martial and military commissions. 10 U.S.C. § 836(a) (2000). But Article 36(b) requires all rules promulgated to "be uniform insofar as practicable."
211. Id. § 836(b). The Supreme Court interpreted the term "uniform" in Article 36(b) to mean that rules for different types of tribunals must be uniform; it rejected the dissent's view that the uniformity requirement meant that the rules for each type of tribunal must be uniform for each armed service (e.g., the Army, Navy, Air Force, etc.).
212. See Hamdan, 126 S. Ct. at 2791 & n.50 (rejecting Justice Thomas's view that Article 36(b) requires uniformity only across military branches, not between court-martial and other types of tribunals).
213. See infra notes 339-44 and accompanying text for a discussion of the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (to be codified in scattered titles and sections of U.S.C).
214. See Sadak & Others v. Turkey, 36 Eur. Ct. H.R. 431, 437-38 (2003) (describing use of Ankara State Security Court to try petitioning parties of treason against state integrity).
215. See id. at 442 (finding that presence of military judge justified applicants' fears of lack of impartiality and independence).
216. Id. at 437.
217. Id. at 442.
218. Id. at 443-44.
219. European Convention, supra note 97, art. 6(1).
220. Sadak, 36 Eur. Ct. H.R. at 443-44.
221. Id. at 442.
222. See Associated Press, Egypt Sentences 6 to Death for Attacks, N.Y. TIMES, Jan. 14, 1996, at § 1, 12 (describing Egypt's assertion that terrorist groups smuggle men and arms across border of Sudan).
223. See id. (noting human rights groups' condemnation of these military trials as they provide harsh sentences with no possibility of appeal).
224. See U.S. CONST. amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....").
225. City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (citing Chandler v. Miller, 520 U.S. 305, 308 (1997)).
226. Miller v. United States, 78 U.S. (11 Wall.) 268,305 (1870).
227. Id.
228. Id.
229. 438 F. Supp. 2d 754 (E.D. Mich. 2006), vacated,
230. F.3d 644 (6th Cir. 2007), cert, denied, 128 S. Ct. 1334 (2008).
231. ACLU, 438 F. Supp. 2d at 758.
232. Plaintiffs' Motion for Partial Summary Judgment at 25-28, ACLU v. NSA, 438 F. Supp. 2d 754 (E.D. Mich. 2006) (No. 2:06-cv-10204), 2006 WL 1868159.
233. Memorandum of Points and Authorities in Support of the United States' Assertion of the Military and State Secrets Privilege; Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment; and Defendants' Motion to Stay Consideration of Plaintiffs' Motion for Summary Judgment at 32-39, ACLU v. NSA, 438 F. Supp. 2d 754 (E.D. Mich. 2006) (No. 2:06-cv10204), 2006 WL 1868156.
234. ACLU, 438 F. Supp. 2d at 779 (quoting Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001)).
235. Id.
236. ACLU v. NSA, 493 F.3d 644, 673-74 (6th Cir. 2007), cert, denied 128 S. Ct. 1334 (2008).
237. 293 F.3d 855 (5th Cir. 2002).
238. Green, 293 F.3d at 856-57.
239. Id. at 861.
240. Id. at 856-57.
241. Id. at 856, 858. The military police were following the "Standard Operating Procedure for the Installation Force Protection Vehicle Checkpoints."
242. Id. at 858. This document listed "protecting] national security by deterring domestic and foreign acts of terrorism" as the first goal of checkpoint stops.
243. Green, 293 F.3d at 858.
244. Id. at 857.
245. Id.
246. Id. at 858 (citing City of Indianapolis v. Edmond, 531 U.S. 32, 48 (2000)).
247. Id. at 859.
248. Green, 293 F.3d at 858-59.
249. Id. at 862.
250. 19 Eur. Ct. H.R. 193 (1994).
251. Murray, 19 Eur. Ct. H.R. at 197-98.
252. Id.
253. Id. at 232.
254. European Convention, supra note 97, art. 8(1)-(2).
255. Murray, 19 Eur. Ct. H.R. at 234.
256. Id. at 234.
257. U.S. CONST, pmbl.
258. App. No. 9825/82, 8 Eur. H.R. Rep. 49 (1985).
259. X, 8 Eur. H.R. Rep. at 49.
260. Id. at 52.
261. European Convention, supra note 97, art. 2(1).
262. X, 8 Eur. H.R. Rep. at 52.
263. Id.
264. Prior to 1998, the European Commission on Human Rights heard complaints concerning violations of the European Convention on Human Rights. If the Commission could not produce a settlement, it would prepare a report "establishing the facts and expressing an opinion on the merits of the case." European Court of Human Rights, Historical Background, http://www.echr.coe.int/ECHR/EN/Header/The+Court/The+Court/History+of+the+Court/ (last visited June 2, 2008). The European Court of Human Right then could consider the case. Id.
265. X, 8 Eur. H.R. Rep. at 53.
266. Id. at 52.
267. Id. at 52-53.
268. Id. at 52.
269. Id.
270. X, 8 Eur. H.R. Rep. at 53.
271. Id. at 52.
272. See, e.g., United States v. Mitchell, 463 U.S. 206, 212 (1983) (explaining that court may not exercise jurisdiction unless United States consents to suit).
273. See 28 U.S.C. § 1346(a)(2) (2000) (granting federal district courts jurisdiction over lawsuits "against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort").
274. Id. § 2680(a).
275. 334 F.3d 61 (D.C. Cir. 2003).
276. Macharia, 334 F.3d at 65-68.
277. Id. at 63.
278. Id. at 65-68.
279. 551 F. Supp. 407 (W.D. Mich. 1982).
280. Bergman, 551 F. Supp. at 410-11.
281. Id. at 410.
282. Id. at 410-11.
283. Id. at 416.
284. Id.
285. Bergman, 551 F. Supp. at 419.
286. Id. The court did not decide whether the FBI in fact had acted negligently, leaving that matter for trial.
287. Id.
288. INT'L & OPERATIONAL LAW DEP'T, THE JUDGE ADVOCATE GEN.'S LEGAL CTR. & SCH., OPERATIONAL LAW HANDBOOK 14 (Joseph B. Berger III et al. eds., 2004), available at http://fas.org/irp/doddir/army/Iaw2004.pdf.
289. El-Shifa Pharm. Indus. Co. v. United States, 378 F.3d 1346, 1355-56 (Fed. Cir. 2004).
290. U.S. CONST, amend. V.
291. See JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW § 11.12, at 438-39 (5th ed. 1995) (recognizing nonacquisitive governmental actions as taking for Fifth Amendment purposes).
292. See Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345, 391 (2000) (discussing idea that spreading takings risk among all taxpayers through insurance premiums enhances efficiency).
293. 378 F.3d 1346 (Fed. Cir. 2004).
294. See supra notes 45-48 and accompanying text for a discussion of this incident in connection with the rules regarding the use of force in other countries.
295. El-Shifa Pharm. Indus. Co. v. United States, 55 Fed. Cl. 751, 753 (Fed. Cl. 2003), aff'd, 378 F.3d 1346 (Fed. Cir. 2004).
296. El-Shifa, 378 F.3d at 1349.
297. Id.
298. Id. at 1348-49.
299. Id. at 1355.
300. Id. at 1361.
301. See El-Shifa, 378 F.3d at 1365 ("We are of the opinion that the federal courts have no role in setting even minimal standards by which the President, or his commanders, are to measure the veracity of intelligence gathered with the aim of determining which assets, located beyond the shores of the United States, belong to the Nation's friends and which belong to its enemies. In our view, the Constitution envisions that the political branches, directly accountable to the People, will adopt and promulgate measures designed to ensure that the President makes the right decision when, pursuant to his role as Commander-m-Chief, he orders the military to destroy private property in the course of exercising his power to wage war.").
302. 479 N.W.2d 38 (Minn. 1991).
303. Wegner, 479 N.W.2d at 39.
304. Id.
305. Id. at 41-42.
306. 603 S.W.2d 786 (Tex. 1980).
307. Steele, 603 S.W.2d at 789.
308. Id. at 791-92.
309. Id. at 793.
310. Wallace v. City of Atlantic City, 608 A.2d 480, 483 (N.J. Super. Ct. Law Div. 1992).
311. For decisions contrary to those described in this paragraph, see Sultivant v. City of Oklahoma City, 940 P.2d 220 (Okla. 1997), which held that a city did not have to pay for damage to an innocent landlord's property and cited similar cases from California, Georgia, and Indiana.
312. Id. at 226-27.
313. See, e.g., Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2794-96 (2006) (concluding that members of al Qaeda have limited rights afforded by Common Article 3 of Third Geneva Convention).
314. See, e.g., United States v. Lindh, 212 F. Supp. 2d 541, 554-58 (E.D. Va. 2002) (concluding that American citizen who was member of Taliban forces and was designated as enemy combatant did not have combatant immunity).
315. See Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (plurality opinion) (stating that United States ordinarily may detain captured enemy combatants "for the duration of the relevant conflict" but that "[i]f the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war" then different rule might apply).
316. See Hamdan, 126 S. Ct. at 2786-98 (concluding that military commission's procedures were improper).
317. See id. at 2775-86 (concluding that military commission could not try suspected terrorist for conspiracy to commit war crimes).
318. See Press Release, U.S. Dep't of Defense, DoD Provides Details on Interrogation Process, News Release No. 596-04 (June 22, 2004), available at http://www.defenselink.mil/releases/2004/nr20040622-0930.html (describing interrogation methods and responding to legal criticism).
319. Compare Khalid v. Bush, 355 F. Supp. 2d 311, 323 (D.D.C. 2005) (dismissing challenges to procedures),
320. vacated sub nom. Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007),
321. cert, granted, 127 S. Ct. 3078 (2007),
322. with In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 465-66 (D.D.C. 2005) (concluding that procedures did not meet requirements of due process),
323. vacated sub nom. Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007),
324. cert, granted, 127 S. Ct. 3078 (2007).
325. Compare Hamdi, 542 U.S. at 520-21 (asserting that government may detain U.S. citizens who are enemy combatants in same manner that it detains other enemy combatants),
326. with id. at 554-55 (Scalia, J., dissenting) (asserting that government may detain U.S. citizens as enemy combatants only if it suspends writ of habeas corpus).
327. See supra Part II.C for an overview of targeted killing.
328. See supra Part II.B for an overview of the use of force domestically and the separate bodies of law governing law enforcement and armed conflicts.
329. See supra Part II.A for a discussion of the United Nations' opposition to the position of most nations that terrorist actors without a state affiliation may still be characterized as enemy combatants.
330. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. No. 136, 139 (July 9) (noting that Israel could not claim to be exercising self-defense because it was not subject to armed attack by foreign state and because threat originated from inside territory controlled by Israel).
331. See supra notes 26-37 and accompanying text for a discussion of this opinion.
332. See supra notes 38-39 and accompanying text for a discussion of NATO's response to the terrorist hijackings of September 11, 2001.
333. See supra Part II.A for a discussion of two instances in which the United States declared terrorist strikes to be acts of war.
334. See Brief for the Respondents at 20, Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No. 03-6696), 2004 WL 724020, at *20 (arguing that Congress had authorized use of military force against terrorists in Afghanistan).
335. See id. at 25 ("The Executive's Determination That An Individual Is An Enemy Combatant Is Entitled To The Utmost Deference By A Court[.]").
336. See, e.g., Hamdi, 542 U.S. at 516 (accepting government's proffered definition of "enemy combatant" for this particular case even after noting that government has never furnished any court with full criteria for such characterization).
337. See supra notes 106-117 and accompanying text for a discussion of the United States' use of targeted killing.
338. U.S. Yemen Response, supra note 112, at 3 (emphasis added).
339. See supra Parts II.A, C for a discussion of these incidents.
340. John Tagliabue, 2 Killed, 155 Hurt in Bomb Explosion at Club in Berlin, N.Y. TIMES, Apr. 6, 1986, §l,at1.
341. U.S. Yemen Response, supra note 112, at 3,
342. United States v. McVeigh, 153 F.3d 1166, 1176 (10th Cir. 1998).
343. United States v. Salameh, 152 F.3d 88,108 (2d Cir. 1998).
344. See McVeigh, 153 F.3d at 1176-77 (describing criminal charges);
345. Salameh, 152 F.3d at 108 (same).
346. See MAGGS, supra note 1, at 5-10 (addressing application of ordinary criminal laws to terrorists).
347. See Greg Myre, Israel Carries out First Airstrike, in Gaza, in 3 Months of Truce, N.Y. TIMES, May 19, 2005, at All (noting Hamas fired dozens of mortar rounds and two rockets at Israeli targets in Gaza in single day).
348. See supra notes 88, 108-17 for a discussion of the attack on the USS Cole.
349. See supra Part III.A for a discussion of the inherent difficulties of deciding whether terrorists should be legally characterized as enemy combatants or ordinary criminals.
350. See United States v. Yousef, 327 F.3d 56, 107 n.42 (2d Cir. 2003) (recognizing lack of consensus about definition of terrorism and considering motivation-based definition of terrorism).
351. The laws of war long have permitted the killing of enemy forces who have not already surrendered without any resort to lesser measures. See supra notes 93-117 and accompanying text for a discussion of the differences between the laws of war and the rules of law enforcement.
352. See CBS/Associated Press, Bush's War on Terror Shifting Targets: Officials Say Pakistan, and Again, Afghanistan at Center of Fight Against Militancy, CBS NEWS, Jan. 28, 2008, www.cbsnews.com/ stories/2008/01/28/terror/main3757858.shtml (reporting growth in U.S. troops in Afghanistan from 20,000 to current total 28,000 and reporting plans to deploy another 3200 Marines to Afghanistan);
353. Gates Backpedals on NATO Comments, CNN.COM, Jan. 17, 2008, http://www.cnn.com/2008/POLITICS/01/17/gates.nato.backtrack/ (reporting on U.S. Defense Secretary Robert Gates's statement about United States' plan to deploy 3200 more Marines to Afghanistan in spring of 2008).
354. See supra notes 54-64 and accompanying text for a discussion of the Padilla line of cases.
355. See Padilla v. Hanft, 126 S. Ct. 1649, 1651 (2006) (Ginsburg, J., dissenting) (describing importance of question of Padilla's detention).
356. During the Supreme Court oral argument in Padilla v. Rumsfeld, 542 U.S. 426 (2004), counsel for the United States, Deputy Solicitor General Paul D. Clement, argued that Padilla could be treated just like any enemy combatant found in Afghanistan. This assertion prompted the following exchange between Justice Anthony M. Kennedy and Mr. Clement: QUESTION: Would you shoot him when he got off the plane?
357. MR. CLEMENT: No, I don't think we could for good and sufficient reasons - QUESTION: I assume that you could shoot someone that you had captured on the field of battle.
358. MR. CLEMENT: Not after we captured them and brought them to safety. And I think in every case, there are rules of engagement, there are rules for the appropriate force that should be used.
359. Transcript of Oral Argument at 21, Padilla, 542 U.S. 426 (No. 03-1027), 2004 WL 1066129, at *17-18. Notice that Mr. Clement did not say whether the United States could have shot Padilla before he was captured; he avoided the question.
360. See supra notes 65-76 and accompanying text for a discussion of the controversy surrounding the military's use of an army surveillance airplane to assist law enforcement in locating and apprehending the D.C. snipers.
361. See supra notes 72-76 and accompanying text for a discussion of the argument regarding the Posse Comitatus Act and the search for the D.C. snipers.
362. Clymer, supra note 72. At the time of Clymer's article, it was assumed there was just one sniper working alone.
363. 10 U.S.C. § 816 (Supp. II 2002).
364. Id. § 816(3).
365. Id. § 816(1)(A).
366. Id. § 820.
367. Id. § 818.
368. See supra notes 54-64, 133-41 and accompanying text for a summary of the Padilla line of cases.
369. Padilla v. Hanft, 423 F.3d 386, 389-90 (4th Cir. 2005),
370. cert, denied, 126 S. Ct. 1649 (2006).
371. See Padilla v. Hanft, 126 S. a. 1649, 1651 (2006) (Ginsburg, J., dissenting) (noting that government recently brought charges against Padilla in civilian court).
372. See U.S. CONST, amend. IV (protecting "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures").
373. See, e.g.. Bond v. United States, 529 U.S. 334, 335 (2000) (holding that "a law enforcement officer's physical manipulation of a bus passenger's carry-on luggage violated the Fourth Amendment's proscription against unreasonable searches").
374. See, e.g., Mapp v. Ohio, 367 U.S. 643, 655 (1961) (holding that evidence obtained by illegal searches and seizures is inadmissible in state courts);
375. Weeks v. United States, 232 U.S. 383, 391-92 (1914) (establishing exclusionary rule for improperly obtained evidence as means of enforcing Fourth Amendment).
376. See, e.g., Padilla, 423 F.3d at 395 (reversing district court on grounds that it did not give President sufficient deference when "effectively imposing upon the President the equivalent of a least-restrictive-means test").
377. See supra Part II.A for an overview of the United States' authority to use force in foreign nations.
378. See Padilla, 423 F.3d at 395 (explaining why President could designate Padilla as enemy combatant and detain him).
379. See, e.g., Ian Johnstone, The Plea of "Necessity" in International Legal Discourse: Humanitarian Intervention and Counter-terrorism, 43 COLUM. 3. TRANSNAT'L L. 337, 373-74 (2005) (discussing argument that bombing of Libya could be justified provided that it was response aimed at preventing "planned future attacks and if the response had been against the source of the attacks").
380. See supra Part II.A for an overview of the United States' authority to use force in foreign nations.
381. See supra notes 65-76, 299-301 and accompanying text for a discussion of the D.C. sniper incident.
382. See supra note 298 for a relevant portion of the oral argument transcript from Padilla v. Rumsfeld, 542 U.S. 426 (2004).
383. The Public Committee Against Torture in Israel essentially argued for this position in its brief before the Israeli Supreme Court. See Brief for Petitioner for Interim Order ¶ 18, HCJ 769/02 Pub. Comm. Against Torture in Isr. v. Gov't of Isr. [2006] IsrCt [hereinafter Brief for Interim Order] (noting that taking part in hostilities does not make it legal to assassinate someone regardless of his status as legal or unlawful combatant).
384. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality opinion) (discussing necessity, in times of war, of detaining enemy combatants for duration of conflict in order to keep them from further combat).
385. See supra Part III.B for further discussion of the difficulties inherent in trying to categorize counterterrorism measures as either strictly law enforcement or strictly military responses.
386. See Hamdi, 542 U.S. at 518 (relying on World War II-era precedent regarding unlawful combatants).
387. See supra Part II.F for an example of how the military is not as constrained as law enforcement by the search and seizure mandates of the Constitution.
388. 18 U.S.C. § 1385 (2000).
389. See supra notes 23-24. 96 and accompanying text for discussions of the limitations imposed on the United States by these international agreements.
390. See David P. Stewart, United States Ratification of the Covenant on Civil and Political Rights: The Significance of the Reservations, Understandings, and Declarations, 42 DEPAUL L. REV. 1183, 1188-89 (1993) ("[A]lmost all of the individual rights and freedoms embodied in the Covenant have long been enjoyed by Americans by virtue of the U.S. Constitution and the constitutions and laws of the states.").
391. See Grant R. Doty, The United States and the Development of the Laws of Land Warfare, 156 MIL. L. REV. 224, 230-32 (1998)
392. (praising Lieber Code as "a contribution by the United States to the stock of common civilization" and tracing its subsequent influence over Hague Convention IV of 1907 (quoting Letter from Francis Lieber to Gen. Halleck (May 20,1863), in George B. Davis, Doctor Francis Lieber's Instructions for the Government of Armies in the Field, AM. J. INT'L L. 13,19 (1907));
393. Jordan J. Paust, Dr. Francis Lieber and the Lieber Code, 95 AM. SOC'Y INT'L L. PROC. 112, 114 (2001) (commenting on successes of Lieber Code as both "authoritative exposition of the laws of war" in U.S. and in "influenc[ing] similar codifications" in other states and nations).
394. Harlan Ullman, Op-Ed., Securing Afghanistan's Future: We Are Running out of Time, WASH. TIMES, Nov. 6,2006, at A19 (noting that thirty-seven nations are in Afghanistan).
395. INTERIM REPORT OF THE STANDING SENATE COMMITTEE ON NATIONAL SECURITY & DEFENCE, CANADIAN TROOPS IN AFGHANISTAN: TAKING A HARD LOOK AT A HARD MISSION (2007), available at http://www.parl.gc.ca/39/1/parlbus/ commbus/senate/com-e/defe-e/rep-e/repFeb07-e.pdf (reporting that Canadian forces in Afghanistan total approximately 2500).
396. Bruce Campion-Smith, Elite Force in Afghan Terror Raids, TORONTO STAR, Sept. 21, 2005, at A7.
397. See Petition for a conditional order (Order Nisi) and for an interim order ¶¶ 5-10, 14-15, HCJ 769/02 Pub. Comm. Against Torture in Isr. v. Gov't of Isr. [2006] IsrCt (petitioning Israel to end its "policy of liquidations" or "focused preventions" that allow for targeted killing of suspects that do not pose "immediate danger" (internal quotation marks omitted)).
398. See id. ¶ 33 (listing liquidation methods used by Israel Defense Force).
399. Id. ¶ 14.
400. Brief for Interim Order, supra note 320, ¶ 18 (quoting State Attorney's Office, Supplementary Statement ¶ 152, HCJ 769/02 Pub. Comm. Against Torture in Isr. v. Gov't of Israel [2006] IsrCR).
401. HCJ 769/02 Pub. Comm. Against Torture in Isr. v. Gov't of Israel [2006] IsrCR ¶ 61, available at http://elyonl.court.gov.il/Files_ENG/02/ 690/007/a34/02007690.a34.pdf.
402. Id. ¶ 61 (determining that "preventative strikes upon terrorists in the area which cause their deaths are a necessary means from the military standpoint").
403. Id. ¶ 31.
404. Id. ¶ 38.
405. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (to be codified in scattered titles and sections of U.S.C.).
406. 126 S. Ct. 2749 (2006).
407. See Military Commissions Act of 2006, § 3(a)(1), 120 Stat. at 2607 (to be codified at 10 U.S.C. § 948b(b)) (authorizing establishment of military commissions for trying certain offenses committed by terrorists).
408. See id. § 3(a)(1), 120 Stat. at 2622 (to be codified at 10 U.S.C. § 950g) (allowing for "[r]eview by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court").
409. See Id. § 3(a)(1), 120 Stat. at 2608 (to be codified at 10 U.S.C. § 949a(b)(2)(A)) (allowing admission of all probative evidence against accused, without very many specific evidentiary rules).
410. See id. § 3(a)(1), 120 Stat. at 2602 (to be codified at 10 U.S.C. § 948b(g)) (providing that "no alien unlawful enemy combatant" could invoke Geneva Conventions as source of rights).