Al Qaeda Fighters
Credit: Wikimedia Commons

Over the summer, the presiding judge in the Guantanamo trial of alleged 9/11 mastermind Khalid Sheikh Mohammad decided to retire. Rather than continue with a death-penalty case that has already lasted more than six years, Army Col. James Pohl called it quits and gave no reason why.

It likely had to do with years-long delays over the permissibility of certain evidence in the case, including evidence possibly obtained through torture. Just days before his retirement, Pohl excluded key information acquired from the CIA black sites that ostensibly contained the men’s confessions. The ruling, he said, was because the defense team was unfairly prohibited from questioning the interrogators. Pohl’s motion is yet another episode in a case that still has no official trial date or agreed upon framework. No matter what ultimately happens, justice will be further delayed for the victims and perpetrators of 9/11.

More important than the merits of this particular case are the critical questions it raises about the rights of terrorism suspects and detainees, both in the United States and around the world. The September 11 attacks may have happened nearly two decades ago, but we are still a long way from developing any sort of uniform legal standards regarding the disposition and treatment of global terrorists.

The unique nature of the attacks—and the al-Qaeda organization behind them—sparked a major reassessment over how, or even whether, to afford legal rights to terrorist suspects. But it is ultimately up to leading democratic countries like the United States to ensure the creation of legitimate, workable rules to address this human underbelly of the war on terrorism.

Until then, countless individuals across the globe will be ensnared in the unaccountable gray area of indefinite detentions, targeted executions, blanket surveillance, and more. Not only do these practices come with moral and practical costs, but they also call into question the viability of a rules-based international system. It’s in America’s vital interest to work with democratic allies and the United Nations to develop new liberal norms for effectively navigating the complex legal terrain of global terrorism. 

Terrorism has, of course, been around for centuries, as have debates over how to deal with it. But what changed after 9/11—at least for many experts and policymakers—is that terrorism was no longer viewed simply as a “criminal act.” It was now considered an “act of war.” This reaction raised the possibility of ad-hoc and potentially unregulated actions by states in their domestic and international responses.

Formal rules governing the behavior of states and the rights of combatants in wartime—the Geneva Conventions, Hague Conventions, and several UN resolutions—were discarded or ignored. But those were all specifically tailored to traditional wars between nation-states, or civil wars within states.

On 9/11, al-Qaeda revealed itself as a new type of terrorist group—a non-state actor intent on waging war against states. This caught the international system by complete surprise. Perhaps it shouldn’t have: In 1998, al-Qaeda literally “declared war” against the United States and its Western allies. The US embassy bombings in Kenya and Tanzania in August 1998 were the first shots fired in this new global war. The 9/11 attacks were just a continuation.

In the years since the September 11 attacks, affiliated groups and others carrying the mantle of al-Qaeda’s global jihad have diversified and expanded, most prominently with the so-called Islamic State (ISIS). Even after losing most of its territory in Iraq and Syria,  ISIS still maintains a core of roughly 25,000 fighters operating in about a dozen countries. Groups like ISIS are especially difficult for countries and international bodies to make sense of legally, as they control large swaths of ungoverned territory, have a big inflow and outflow of foreign fighters, and are intent on committing major international attacks.

Vice President Dick Cheney’s call for the United States to go to the “dark side” to thwart terror marked the big sea-change in this realm. Many of the Bush administration’s actions showed the need to ensure that terrorist suspects are afforded some basic rights under international and domestic law.

In my view, there are three distinct categories of terror combatants that have emerged post-September 11: 1) current detainees; 2) foreign terrorist fighters; and 3) battlefield foot-soldiers.

Current detainees are individuals held by states in some form of unregulated indefinite detention. The most obvious examples are prisoners held by the United States at Guantanamo Bay. But other countries are also known to hold terror suspects indefinitely, including on foreign military bases and warships out at sea.

This category can seem like a no-brainer for liberal-democratic countries, where the default temptation is to rely on civilian court systems to prosecute captured terrorists as regular criminals with full due process. And it is certainly true that every democracy, the United States included, relies heavily on civilian justice for most terrorism cases.

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But in the earliest days after 9/11, the Bush administration chose to strip these suspects of any rights, holding them as an entirely new category of detainee known as “foreign enemy combatants.” By doing so, they reserved the right to hold them until the end of hostilities, which is commonplace in traditional wars. But under pressure from the Supreme Court and Congress, the Bush White House also created a military tribunal system to grant basic habeas corpus rights, and hold formal trials when warranted.

Barack Obama, for his part, entered office in 2009 after famously promising to close Guantanamo within a year. Nearly ten years later, the prison remains open—with 40 detainees still there. After initially considering trying Khalid Sheikh Mohammed in federal court in lower Manhattan, Obama  backed down, recognizing that a jury acquittal for the admitted mastermind of the 9/11 attacks would be not only a political disaster for him, but bad for the country.

By 2013, Obama admitted that there were “hard cases” in the war on terrorism, on which traditional law enforcement procedures and courtrooms could not be relied. Despite the Supreme Court ruling in 2008 that all terror detainees have a right to challenge their detention in a civilian court, the United States has continued to hold detainees indefinitely using its own extra-legal national security justifications. In other words, as the commander-in-chief in “wartime,” each president since 9/11 has claimed unilateral—and even unchecked—authority to act in the nation’s defense.

Then there are Foreign Terrorist Fighters (FTFs), individuals who left their home countries to engage in terror activities internationally. They include tens of thousands of young people, many from the West, who fought with ISIS in Iraq and Syria.

As with foreign enemy combatants, FTFs operate in a vastly unregulated sphere when it comes to rules regarding their treatment. Many states literally make it up as they go along. While Sweden and Norway have pledged mercy and fair trials for their returning foreign fighters, Britain has called for stripping them of citizenship and trying them for treason. In March, the UN released a comprehensive report on the threat posed by FTFs. It offered little guidance on their proper handling, but urged its member states to “balance repressive and soft responses” and “improve judicial procedures”—whatever that means. The fact that the world body seemed to accept “repressive” measures along with “soft” ones is itself a recognition of wartime conditions under international law.

Lastly, there are battlefield foot-soldiers. These are actors operating anywhere in the world who are suspected of planning or participating in active terror plots. In many ways, this is the most complex category, in which the rules of war and human rights are most at risk. This conundrum was demonstrated with the Obama administration’s widespread use of covert drone killings.

Under George W. Bush, the drone program was mostly limited to known terrorist leaders in US war zones like Afghanistan and Iraq. By itself, this practice raised questions about the rules of war, such as the sanctity of territorial borders and the “hot pursuit” of terror suspects into neighboring countries. But under Obama, the program was extended to an entirely new category of “signature targets”: unknown individuals acting suspiciously (like driving in nighttime caravans) in regions known for terror activity. Thousands of individuals, including scores of innocent civilians, were killed by drone strikes during his presidency in at least seven countries across Central Asia, Africa, and the Middle East.

As former U.S. Defense Secretary Donald Rumsfeld once famously quipped, fighting in wars inevitably creates new “unknowns” that need to be sorted out.

We know that the United States’ anti-terrorism measures post-9/11 will reverberate for generations to come. The UN report from March was not the first effort by a global body to try and lay down some markers in the US-led war on terror, nor will it be the last.

Other countries will certainly follow America’s lead on many of its practices, including mixing and matching criminal justice and military-wartime procedures when dealing with terror suspects and detainees. Several European countries have already done so after recent high-profile attacks: France, Belgium, and others have tightened their counterterrorism laws in ways that mirror, or even surpass, America’s Patriot Act. European governments are experimenting with highly controversial surveillance policies targeting recent immigrants and many of their own citizens. Meanwhile, Russia and China are now investing heavily in new drone forces. It’s hard to imagine that they plan to operate their fleets under more humane guidelines than the United States.

Left unknown is whether new enlightened standards of state behavior may emerge from this current era of terrorism-related conflict. History implies that they will—as they have in the past, with the Geneva and Hague Conventions and the UN Charter. But history also cautions us that these standards will take decades or longer to take root. Even then, they will likely remain, at best, imperfectly followed.

In the meantime, the world should take note of what the United States has uneasily discovered in the years after 9/11—that treating global terrorists as either standard criminals or lawless fighters is wrong. It is not a binary choice. That sort of thinking is why Khalid Sheikh Mohammed still sits in a prison cell in Cuba. It’s why Bush’s military commissions failed, and why Obama could not follow through on his initial promise to treat terrorism differently than his predecessor.

Today’s terrorists represent an entirely new form of global combatant. We will have to adapt longstanding civil procedures in domestic law, and longstanding international rules of war, to permit the maximum rights for terror suspects. At the same time, we’ll need to protect the inherent right of states to defend themselves. Rules of evidence may need to be tailored to ensure legitimate and effective terrorism trials.

The United States and its democratic allies should push for a United Nations permanent working committee dedicated to developing standardized norms and best practices for handling terror suspects and detainees. These standards must include basic due process rights for those indefinitely detained, including the right for detainees to see the evidence being used to hold them. It should also prescribe the circumstances under which states may engage in repressive wartime practices, like targeted killings. The goal of this committee would be for the most reasonable ideas to be adopted into international law. It isn’t perfect. But it’s a start.

Stuart Gottlieb

Stuart Gottlieb teaches American Foreign Policy and International Security at Columbia University’s School of International and Public Affairs (SIPA), where he is also a member of the Saltzman Institute of War & Peace Studies. He formerly served as a foreign policy adviser and speechwriter in the U.S. Senate (1999–2003).