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22. Legal Adviser Bellinger's speech in Rome on the 5th Anniversary of September 11th (September 11, 2006)


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Bureaus/Offices Reporting Directly to the Secretary > Office of the Legal Adviser > Releases

 

Fifth Anniversary of September 11th Attacks


John B. Bellinger, III, Legal Advisor
Rome, Italy
September 11, 2006

Thank you for that kind introduction. It is a privilege to be here and I appreciate the opportunity to speak at this event and to see and meet so many friends and colleagues.

Introduction

As I stand here today, we commemorate the fifth anniversary of a brutal and premeditated series of attacks on the United States by al Qaida that killed nearly 3,000 people. Al Qaida terrorists hijacked four passenger jets, which they turned into flying missiles aimed at civilians in our urban centers. The first two planes struck both towers of the World Trade Center. The third was hurled into the Pentagon. The fourth crashed in a field in Pennsylvania after a heroic effort by the passengers and crew to wrestle control of the plane from the hijackers.

The results will forever haunt history. The Twin Towers and 7 World Trade Center collapsed, and 27 other buildings, including the Pentagon, were damaged. Only 289 victims’ bodies survived the immense heat and crushing rubble of the Twin Towers intact, and at least 1,700 families received no remains. Enormous dust clouds covered Manhattan for weeks and fires continued to burn for 99 days after the attacks. Businesses and livelihoods were destroyed, the world economy was disrupted, and direct costs ran to the tens of billions of dollars.

This brutal attack on the United States was an attack against the world. Men, women and children from more than 90 countries lost their lives or were injured, without regard to age, race, religion, culture or creed. The victims were Americans of course, but also Asians, Africans, Latin Americans and Europeans; Muslims, Christians, Jews and people from many other faiths and backgrounds. Four Italians were killed on that tragic day, all at the World Trade Center: Luigi Calvi, Lorraine Lisi, Gerard Rauzi, and Marisa di Nardo Schorpp.

Our hearts go out to each of the victims and their families, and we do not — even with the passage of time — forget their terrible suffering. We also remember the outpouring of friendship and support from people and governments around the world in the wake of the attacks.

Italy’s heartfelt condolences in particular are still recalled with deep gratitude in the United States. Italy’s Premier was one of the first foreign leaders to visit the White House after September 11th, and we continue to embrace his acknowledgment that "[t]his attack was an attack not only against citizens, but also against freedom and liberty." The State Department received thousands of expressions of support from private Italian citizens, and offers of assistance. Today, an annual scholarship drive by Il Vero Cuore di Venezia for the children of the New York firefighters who died in the attacks, and continued visits by Italian firefighters to the World Trade Center site, serve as ongoing reminders of the connection forged between the United States and Italy on that tragic day.

I was working at the White House on September 11th, and was in our Situation Room as the Twin Towers fell. In the days immediately following the attacks, I experienced first hand the deep and heartfelt support we received from around the world. I am personally grateful and I know that the President, Secretary Rice and the other members of this Administration are grateful to Italy and all of Europe for the friendship, sympathy and support you gave us.
Sadly, the attacks of September 11th have been followed by more terrible acts of terrorism, including attacks right here in Europe. We also do not forget that Italy has suffered greatly from terrorism, including the attack in Nasiriyah on November 13, 2003 that killed 19 Italian heroes. The nature of the terrorist enemy is evident in each of these attacks: this enemy has no regard for innocent life and is intent on attacking civilians in our cities to cause as many casualties as possible. That is why Americans and Europeans are united in grief for all victims of terrorism and share a firm commitment to fight and defeat terrorism wherever it is found throughout the world.

Today, I would like to reflect upon the state of transatlantic cooperation in combating the kind of horrific terrorist acts perpetrated five years ago. As we undoubtedly all agree, cooperation in this struggle is essential to our ultimate victory over al Qaida. But in order for us to cooperate effectively, we must overcome the divide that has developed across the Atlantic on questions related to U.S. counterterrorism policies and practices, especially those related to the detention, questioning and transfer of suspected members of al Qaida.

I believe that three major steps must be taken to improve U.S.-E.U. cooperation. First, for the free countries of the world to succeed in this conflict, we must all acknowledge the magnitude of the threat posed by al Qaida. The United States views this continuing threat as justifying an armed response as part of a broader strategy against those who attacked us on September 11. Second, to bridge the growing divide between the United States and Europe we need to improve the quality of the dialogue on counterterrorism, avoiding hysterical descriptions of others views and actions. Third, as we improve dialogue, we need to focus on whether existing international legal rules are well-suited to meet the threats of the 21st century.

Need to Acknowledge the Threat

Beyond the enormous personal, national and international tragedy, September 11th was the day that ended debate about the nature of the threat to the civilized world posed by international terrorism. That is why, today, as we commemorate a tragic day, we also mark a decisive day in history, the day we all came to realize that armed terrorists were a threat to every country and to freedom loving people everywhere.

Given the magnitude of the September 11 attacks, their continued operations against the United States and its allies, including in Iraq, and the desire of al Qaida to obtain weapons of mass destruction to commit a mass slaughter of civilians on an unprecedented scale, the United States believes that we are engaged in an actual, not merely rhetorical, war with al Qaida. Al Qaida’s leaders have explicitly declared war against us through words and actions. Even before September 11th, al Qaida engaged in armed attacks against our embassies, our military vessels and our military bases. On September 11th, they attacked our nation’s capital city, our financial center, our military headquarters at the Pentagon, and thousands of innocent, unarmed civilians.

Clearly, this war is different from traditional armed conflicts between nation states, as al Qaida is itself not a state. But Al Qaida has planned and executed violent attacks with an international reach, magnitude and sophistication that previously could be achieved only by nation states. Before September 11, the United States responded to the attacks by al Qaida with investigations and prosecutions under our criminal laws. But after September 11, we realized that while al Qaida considered itself at war with us, we had not responded in a manner commensurate with al Qaida’s threat. Accordingly, President Bush mobilized all of our national resources – military, intelligence, law enforcement, diplomatic, and financial – to be deployed in a comprehensive struggle against al Qaida.

I know that many Europeans are troubled by the United States’ insistence that we are engaged in a "global war on terror." Given the devastation inflicted upon Europe by two world wars in the last century, Europeans are understandably reluctant to engage in another war, much less a global war. But I hope I can address these concerns by clarifying that the United States does not believe that it is engaged in a legal state of armed conflict at all times with every terrorist group in the world, regardless of the group’s reach. Nor is military force the appropriate response in every situation across the globe. But what we seek agreement on is that the scourge of terrorism is a global problem that the international community must recognize and work together to eliminate. And al Qaida presents a particularly virulent strain of this problem; one that is—in our view—appropriately defeated in part through the use of military force.

Because we are at war with al Qaida then, we believe that it is appropriate to apply international humanitarian law – rather than exclusively domestic criminal laws – to this conflict. While we recognize that European countries, including Italy, have relied on their domestic criminal laws to fight terrorist groups, our traditional criminal justice system is simply not well-suited to respond to the scale and magnitude of the threat posed by al Qaida.

The validity of this approach found expression in the international community’s immediate response to the September 11 attacks. Immediately after September 11, the UN Security Council explicitly recognized the right of the United States to act in self-defense in response to these armed attacks, declaring terrorism a threat to international peace and security. If the Security Council saw the September 11 attacks only as a criminal act, it would not have authorized action in self defense and specifically referred to the U.N. Charter as the source of that right.

And, the U.S. Supreme Court, whose decisions have been widely hailed in Europe, itself, has confirmed that the law of war applies to the United States in its armed conflict with al Qaeda. In its recent decision in the Hamdan case, the Supreme Court ruled that Common Article 3 of the Geneva Conventions applies to this conflict. While the Court disagreed with President Bush’s initial determination concerning the applicability of Common Article 3, the decision confirms the applicability of the law of war.

Thus, I we believe, that it is appropriate and legally permissible to apply the law of war to the conflict with al Qaida in circumstances. That said, I am not suggesting that every detainee captured by every country as part of this war must be treated as an enemy combatant under the laws of war. There are instances where other countries may reasonably conclude that their domestic criminal laws are the appropriate vehicle to deal with a particular terrorist threat. And we respect that judgment. Indeed, the United States itself does not consider the law of war to be the only legal framework applicable to al Qaida. For example, we detained and prosecuted Zacharias Moussaoui, who was found inside the United States, in our domestic courts under our federal criminal laws. The point here is that there is some flexibility on how to combat terrorism consistent with the rule of law, so long as we all appreciate the gravity of the threat, and work cooperatively to address that threat. But as we move forward, it will be important for all to understand and respect the approaches taken by others.

Improving Transatlantic Dialogue

Understanding and respect is necessary for the kind of effective cooperation required to respond to the September 11 th attacks, and the terrorist acts that have followed. These attacks were an attack against the free world, and the response has and must continue to come from the international community. That is why the UN Security Council has called on all countries to work together urgently to prevent and suppress terrorist acts. The UN Secretary General in May underscored that all States are vulnerable to terrorism and that we can only defeat this threat if we work together.

The United States and Europe have responded to this call. The United States appreciates the many ways in which the EU and European countries, including Italy, have been our solid partners in the global coalition against terrorism. It is sometimes lost in the rhetoric about differing legal theories or modes of practice, just how successful U.S.-European cooperation has been in making the world safer from terrorism. Law enforcement regimes, information sharing, and better border security have all been put in place.

But our cooperation has been hampered by controversy over some U.S. counterterrorism policies and practices, especially policies relating to the detention, questioning, and transfer of suspected members of al Qaida. While it is undeniable that there have been serious incidents of abuse of detainees by U.S. personnel, allegations of misconduct have reached hyperbolic proportions. The European media now seems willing to print uncritically every allegation of abuse, whether supported by evidence or not, and in Europe these concerns have snowballed into an avalanche of suspicion and politicized investigations that now threaten to undermine a level of cooperation between our governments that is absolutely vital if we are to protect our societies against further attacks. The unchallenged and untrue assertion that the United States has operated hundreds or even thousands of rendition flights through Europe is a good example. These assertions are absurd.

Worse, government officials, leading scholars, and opinion leaders have been willing to use this incendiary rhetoric as well. Consider the Council of Europe’s lurid suggestion that the United States has constructed a rendition network like a "spider’s web". Responsible government officials and commentators in Europe must promote more balanced discussion within their own countries, among themselves, and with the United States about the issues if we are to preserve cooperation in our fight against terrorism.

For our part, the U.S. Government recognizes that improved dialogue over counterterrorism issues with Europe requires addressing valid concerns that have been raised regarding U.S. policy. To that end, Secretary Rice has made dialogue with the EU on these issues a personal priority. And for the last nine months, I have engaged in a series of discussions with the legal advisers of EU member states on our detention policies and laws. Most recently, President Bush, in his speech last week announcing the transfer to DOD custody of 14 al Qaeda leaders and operatives, recognized that our allies have expressed concerns about our detainee policies and clearly indicated the importance of continuing to work with our partners around the world to construct a common foundation to defend our nations and protect our freedoms.

Adapting Old Rules to New Times

Our dialogue with the EU has improved the tenor of the transatlantic counterterrorism conversation. We have been able to explain U.S. policies and legal positions and to debunk many inaccurate allegations. And we have been able to identify where U.S. and European legal obligations differ. Most important, we have been able to convey to Europe the lack of clarity surrounding the pre-existing legal framework for combating transnational terrorism. The United States was not, and no country could have been, prepared to deal with the type of massive terrorist attacks and worldwide terrorist network that we confronted on September 11. There was no book on a shelf somewhere that contained a ready legal guide to combating armies of transnational terrorists.

Perhaps the best evidence that the legal framework applicable to al Qaida is unclear is the division among critics of U.S. policies regarding the appropriate legal framework for the struggle against terrorism. Some critics suggest that domestic criminal law and international human rights law provide the sole standards for combating al Qaida and that the law of war is inapplicable. Others acknowledge that the law of war applies, but have criticized the United States for not providing detainees the protections afforded POWs under the Third Geneva Convention. Still others have argued the correct approach requires a blending of human rights and humanitarian law. This range of positions taken by critics itself demonstrates that there is no clear legal framework in place to address this new threat.

It is a positive development that in recent months a number of European officials have acknowledged the lack of clarity in the legal framework applicable to detention of members of international terrorist groups like al Qaida. For example, Belgian Senator Anne Marie Lizin, who serves as the OSCE’s Parliamentary Assembly’s Special Representative for Guantanamo, stated in her July 2006 report that there is "incontestably some legal haziness" regarding the legal status of members of international terrorist organizations. Indeed, Madame Lizin recommended the formation of an international commission of legal experts to examine the question. Likewise, at the US-EU Summit in June, Austrian Chancellor Wolfgang Schussel acknowledged that we have "legal gray areas" regarding detention of terrorists.
Because we are on new terrain, U.S. policies and practices have had to evolve significantly since September 11. These changes demonstrate the self-correcting mechanisms inherent in the U.S. system of checks and balances. Every branch of our government has been part of this effort. Congress has passed new laws, including the Detainee Treatment Act, which prohibits cruel, inhuman, or degrading treatment of any detainee in U.S. control anywhere in the world. Our courts have issued numerous rulings, including decisions by our Supreme Court that Common Article 3 applies to the conflict with al Qaida.

The Executive Branch has made several changes to its policies and practices as well. The Department of Defense just issued a new Directive on detention standards and a new Field Manual on interrogation. This manual now provides a unified standard for interrogation of detainees held by the Department of Defense that is fully consistent with Common Article 3 of the Geneva Conventions. As I noted earlier, 14 detainees have been transferred to Guantanamo from a CIA interrogation program, and they will get the protections afforded all detainees at Guantanamo, including ICRC and counsel access, and the treatment protections. The Administration has sent draft legislation to Congress that would allow us to bring these individuals to justice through trials before military commissions using procedures that will ensure a full and fair trial for the accused, while protecting our national security. And there are no longer any detainees held by the CIA in secret locations. The President’s announcement, DOD’s new detainee and interrogation policies, and the draft military legislation are key steps in our ongoing efforts to develop a comprehensive and durable framework for the conduct of this conflict into the future.

Just as we have had to make these changes to our counterterrorism practices and policies, improving U.S.-E.U. cooperation in this area requires us to examine whether the framework of laws and international treaties developed to address the threats and problems of the second half of the 20th century continue to be well-suited to meet the threats and problems of the 21 st century. Earlier this year, British Defence Minister John Reid called on the international community to re-examine whether the Geneva Conventions are appropriate to deal with the conflict with international terrorists capable of operating on a global scale. "If we do not,’ he said, "we risk continuing to fight a 21st Century conflict with 20 th Century rules." Similarly, I think we must look at how to apply human rights and law enforcement treaties in a manner that still allows us to protect our societies.

As nations committed to rule of law, we have an understandable desire to want to fit contemporary problems into a familiar international legal framework. But, as I’ve just explained, these new threats cannot easily be reconciled with existing international rules. To say that there is no clarity on what rules apply is not, as some in Europe may fear, an attempt by the United States "to get out of the rules." The United States remains firmly and unwaveringly committed to upholding international law. As the President has said, " America is a nation of laws." We will "continue to work with the international community to construct a common foundation to defend our nations and protect our freedoms."
But these were rules created for different times, and different facts require that they be adapted to the dangers of our time. I believe that a more pragmatic approach to reconciling rights and security issues-- not an unyielding, dogmatic attitude that existing rules are all we need to protect both societal and individual rights-- will produce the best results in our struggle against international terrorism.

Unfortunately, many international and non-governmental organizations have advanced inflexible, doctrinal answers to difficult legal questions that are in many cases simply incorrect legally and inconsistent with the obligations of government to protect the rights of society as a whole. For example, the Council of Europe’s Venice Commission issued a report in March concluding in essence that Council of Europe members must not participate in renditions of terrorists because renditions violate international law. But this conclusion does not take into account that European countries have engaged in renditions in the past, and that these renditions have been upheld by European courts. The European Commission of Human Rights upheld the rendition by France of Carlos the Jackal. An outright ban on renditions would place a legal straightjacket on an important tool to combat terrorism. A more pragmatic approach would acknowledge the possibility of using renditions in rare cases, where the alternative is to let dangerous terrorists remain at large, while at the same time requiring that the practice meet important legal requirements, including the prohibition on torture. As Secretary Rice has made clear, "The United States does not transport, and has not transported, detainees from one country to another for the purpose of interrogation using torture."

Similarly, the Committee Against Torture, the UN Special Rapporteur on Torture and other human rights advocates have argued against relying on diplomatic assurances that returnees would not be tortured upon their return. Such an inflexible refusal to consider the weight of diplomatic assurances may have made sense when countries had only to deal with a very small number of individuals who faced risk of abuse if transferred to their countries of nationality. But today, States have found themselves unable to return hundreds of foreign nationals who are plotting terrorist attacks against their citizens. A less unyielding approach to diplomatic assurances may be appropriate.

Conclusion

Despite the challenge inherent in adapting any legal regime to new facts, the shared culture and commitment of the United States and Europe to democracy and rule of law will serve us well in accomplishing this difficult task. As I’ve described, we’ve sometimes disagreed about the best means to defeat terrorism. Some of these disagreements may continue. But for transatlantic collaboration to be successful in defeating al Qaida and international terrorism more generally, persons on both sides must recognize that no country has all the answers. We may have to adjust course midstream. People of good will on different sides may disagree. Demonizing those on the other side of the debate will not overcome these differences, but rather will undermine our further collaboration.

To be successful then, both sides of the Atlantic must be willing to engage in a more constructive dialogue and to compromise as needed. We must all ask whether existing legal rules, designed for different times and different problems, still serve the needs of society. Where more flexibility is needed, we should employ pragmatism rather than dogmatic reaffirmation of existing positions.

In meeting this daunting challenge, the United States and Europe can draw on our long history of working together to defeat common enemies while preserving our shared values. Just as we fought together to defeat totalitarianism in World War II and the Cold War, I have no doubt that, together, we will also prevail in the struggle against those who use terrorist violence against our societies and our people.



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