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NAVAL LAW REVIEW Judge Advocate General of the Navy Rear Admiral Bruce E. MacDonald, JAGC, USN Commander, Naval Legal Service Command Rear Admiral James W. Houck, JAGC, USN Commanding Officer, Naval Justice School Captain Michael J. Boock, JAGC, USN Editor-in-Chief Lieutenant Commander David T. Lee, JAGC, USN Managing Editor Lieutenant Commander Brian J. Halliden, JAGC, USN Article Editors Lieutenant Commander Amy K. Larson, JAGC, USN Lieutenant Commander Christopher D. Mora, JAGC, USN LT Cameron R. Nelson, JAGC, USN Lieutenant Jeremy J. Wall, JAGC, USN Lieutenant Amanda R. Myers, JAGC, USN Captain Adam Workman, USMC Lieutenant John F. Butler, JAGC, USN Lieutenant Rachel Wright, JAGC, USN Lieutenant (junior grade) Adam B. Brandon, JAGC, USN Lieutenant (junior grade) Alex C. Donart, JAGC, USN Editorial Board Commander Denise E. Stich, JAGC, USN Lieutenant Commander Tracy L. Clark, JAGC, USN Published by the Naval Justice School, the NAVAL LAW REVIEW encourages frank discussion of relevant legislative, administrative, and judicial developments in military and related fields of law. Views expressed in published articles must be considered solely those of individual authors and do not purport to voice the views of the Naval Justice School, the Judge Advocate General, the Department of the Navy, or any other Agency or Department of the United States. The NAVAL LAW REVIEW is published from appropriated funds by authority of the Judge Advocate General in accordance with Navy Publications and Printing Regulations P-35. This issue of the NAVAL LAW REVIEW may be cited as 56 NAVAL L. REV. 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TITLE AND SUBTITLE 5a. CONTRACT NUMBER Responding to Transnational Terrorism Under the JUD AD Bellum: A 5b. GRANT NUMBER Normative Framework 5c. PROGRAM ELEMENT NUMBER 6. AUTHOR(S) 5d. PROJECT NUMBER 5e. TASK NUMBER 5f. WORK UNIT NUMBER 7. PERFORMING ORGANIZATION NAME(S) AND ADDRESS(ES) 8. PERFORMING ORGANIZATION NAVAL LAW REVIEW, Naval Justice School,360 Elliot Street, REPORT NUMBER Newport,Newport,RI,02841-1523 9. SPONSORING/MONITORING AGENCY NAME(S) AND ADDRESS(ES) 10. SPONSOR/MONITOR’S ACRONYM(S) 11. SPONSOR/MONITOR’S REPORT NUMBER(S) 12. DISTRIBUTION/AVAILABILITY STATEMENT Approved for public release; distribution unlimited 13. SUPPLEMENTARY NOTES 14. ABSTRACT 15. SUBJECT TERMS 16. SECURITY CLASSIFICATION OF: 17. LIMITATION OF 18. NUMBER 19a. NAME OF ABSTRACT OF PAGES RESPONSIBLE PERSON a. REPORT b. ABSTRACT c. THIS PAGE Same as 324 unclassified unclassified unclassified Report (SAR) Standard Form 298 (Rev. 8-98) Prescribed by ANSI Std Z39-18 SUBSCRIPTIONS Subscription information may be obtained by writing to the Managing Editor, NAVAL LAW REVIEW, Naval Justice School, 360 Elliot Street, Newport, RI 02841-1523. Publication exchange subscriptions are available to organizations that publish legal periodicals. INDIVIDUAL PURCHASES Individual copies of the Naval Law Review, formerly titled the JAG Journal, may be purchased by contacting the Defense Technical Information Center (DTIC) and the National Technical Information Service (NTIS) for republication and sale. Copies are not available from the Naval Justice School. Commands not already registered with the DTIC may obtain registration forms and information on ordering publications by writing to: Defense Technical Information Center Attention: Code DTIC-FDRA Cameron Station, Building 5 Alexandria, VA 22304-6145 COMM (703) 767-8273 DSN 427-8273 1-800-CAL-DTIC (225-3842) Individual purchasers may obtain information on ordering publications by writing to: U.S. Department of Commerce National Technical Information Service 5285 Port Royal Road Springfield, VA 22161 CONTENTS _____________________________ Articles, Essays & Notes _____________________________ RESPONDING TO TRANSNATIONAL TERRORISM UNDER THE JUS AD BELLUM: A NORMATIVE FRAMEWORK 1 Michael N. Schmitt A COMFORTABLE SOFA: THE NEED FOR AN EQUITABLE FOREIGN CRIMINAL JURISDICTION AGREEMENT WITH IRAQ 43 Lieutenant Commander Ian S. Wexler, JAGC, USN MAYFIELD, FISA, AND THE FOURTH AMENDMENT 87 Lieutenant Commander Trevor Rush, JAGC, USN UNCHARTED WATERS: THE EXPANSION OF STATE REGULATORY AUTHORITY OVER FEDERAL ACTIVITIES AND MIGRATORY RESOURCES UNDER THE COASTAL ZONE MANAGEMENT ACT 137 Lieutenant Commander Joseph Romero, JAGC, USN THE CONTINUED HEALTH CARE BENEFIT PROGRAM: THE DEPARTMENT OF DEFENSE’S GUARANTEE OF LIFETIME HEALTH CARE TO ALL FORMER MILITARY SPOUSES 199 Lieutenant (junior grade) Jessica Lynn Pyle, JAGC, USN OUT OF SIGHT, OUT OF MIND? A CASE FOR LONG RANGE IDENTIFICATION AND TRACKING OF VESSELS ON THE HIGH SEAS 219 Lieutenant Commander Jason M. Krajewski, USCG THE USE OF FORCE IN HOSTAGE RESCUE MISSIONS 251 Lieutenant Commander Joseph J. Eldred, JAGC, USN ENSURING FAIR WINDS AND FOLLOWING SEAS: A PROPOSAL FOR A SINO-AMERICAN INCIDENT AT SEA AGREEMENT 275 Ensign Michael Hughes, JAGC, USN _____________________________ Book Reviews _____________________________ FIASCO: THE AMERICAN MILITARY ADVENTURE IN IRAQ 301 Major Jennifer Bottoms, JA, USA RED ROGUE: THE PERSISTENT CHALLENGE OF NORTH KOREA 311 Major Stephen F. Keane, USMC Naval Law Review LVI RESPONDING TO TRANSNATIONAL TERRORISM UNDER THE JUS AD BELLUM: A NORMATIVE FRAMEWORK Michael N. Schmitt* I. INTRODUCTION On April 5, 1986, terrorists bombed Berlin’s La Belle discotheque, a bar frequented by U.S. military personnel. One American soldier and one Turkish woman were killed and nearly 200 other patrons injured. Prior to the attack, U.S. intelligence intercepted communications to the Libyan People’s Bureau in the city ordering an attack on Americans. Other intercepts, collected both before and after the bombing, further substantiated Libyan involvement. Ten days later, the United States responded with Operation El Dorado Canyon, a strike involving some 200 aircraft targeting terrorist and Libyan government facilities in Tripoli and Benghazi, including a residence of Libyan leader Muammar el-Qadaffi. The international reaction was overwhelmingly critical. The United Nations General Assembly “condemned” the attack as “a violation of the Charter of the United Nations and of international law,”1 while Secretary General Javier Perez de Cuellar publicly "deplored" the "military action by one member state against another."2 The reaction of individual States, with the notable exceptions of the United Kingdom (from which some of the aircraft launched) and Israel, was likewise unsupportive.3 Indeed, aircraft based in the United Kingdom had to transit the Strait of Gibraltar because the United * Dean, George C. Marshall European Center for Security Studies, Garmisch-Partenkirchen, Germany; 2007-08 Charles H. Stockton Professor of International Law, United States Naval War College. The views expressed in this article are those of the author in his private capacity and are not meant to necessarily reflect those of the United States or German governments. 1 G.A. Res. 41/38, ¶ 1, U.N. Doc. A/RES/41/38 (Nov. 20, 1986). 2 Elaine Sciolino, Attack on Libya: The View from Capital Hill. N.Y. TIMES, Apr. 16, 1986, at A17. 3 For instance, Shimon Peres, the Israeli Prime Minister, stated "the American action benefited the whole free world, which was becoming more and more a victim of irresponsible terrorism. It is good that a major power like the United States took steps to cut off the arm of the terrorists, at least one of them." Jonathan Broder, Israelis Praise It While Arabs Vow to Avenge It, CHICAGO TRIB., Apr. 16, 1986, at A9. On the reaction to the strike, see W. Michael Reisman, International Legal Responses to Terrorism ,22 HOUS. J. INT’L L. 1, 33-34 (1999) for a description of the international reaction. See also Stuart G. Baker, Comparing the 1993 U.S. Airstrike on Iraq to the 1986 Bombing of Libya: The New Interpretation of Article 51, 24 GA. J. INT’L COMP. L. 99 (1994). 1 2008 Responding to Transnational Terrorism Under the Jus Ad Bellum States could not secure overflight rights from countries, including NATO ally France, along the most direct route to the target area.4 Fifteen years later, on 11 September 2001, members of al Qaeda, a shadowy terrorist network operating from some 60 countries, seized control of four aircraft, flying two into the World Trade Center in New York City, and a third into the Pentagon. The fourth crashed in Pennsylvania following a valiant attempt by passengers to regain control of the aircraft. In all, nearly 3,000 people died, the citizens of over 100 nations. The financial impact of the attack has been estimated in the hundreds of billions of dollars.5 The United States and its coalition partners responded on October 7 by attacking both al Qaeda and Taliban targets in Afghanistan. Not only did the international community refrain from condemning Operation Enduring Freedom (OEF), but many States provided verbal and material support. The United Nations and other intergovernmental organizations treated the 9/11 terrorist strikes as meriting military action in self-defense, even as the United States ousted the Taliban regime, which no credible source cited as behind the attacks.6 There is little question but that the international normative understandings regarding the application of the jus ad bellum, that component of international law which governs when States may resort to force, had changed dramatically. Large-scale transnational terrorism compelled the international community to discover a normative architecture governing the legal bases for counterterrorism that had theretofore been rather obscure. Specifically, although traditionally viewed as a matter for law enforcement, States and intergovernmental organizations now style terrorism as justifying, with certain conditions, the use of military force pursuant to the jus ad bellum. It is not so much that the law has changed as it is that existing law is being applied in a nascent context. In law, as in all other aspects of international security, what one sees depends on where one stands. 4 Military aircraft are permitted transit passage through international straits, i.e., a strait in territorial waters used for international navigation (including overlapping territorial waters of multiple States) linking two parts of the high seas (or exclusive economic zones). See THE COMMANDER’S HANDBOOK ON THE LAW OF NAVAL OPERATIONS (NWP 1-14M; MCWP 5-12.1; COMDTPUB P5800.7A) (2007), at para. 2.5.3. 5 The Comptroller of New York City estimated the cost to the city alone at $95 billion. Richard Wray, NY Counts Cost of 9/11, THE GUARDIAN UNLIMITED, Sept. 5, 2002, available at http://www.guardian.co.uk/september11/story/0,11209,786326,00.html. Financial losses and the cost to the U.S. government dwarfs that figure. 6 For a discussion of these events and their legal implications, see Michael N. Schmitt, Counter- Terrorism and the Use of Force in International Law, 32 ISRAEL Y.B. HUM. RTS. 53 (2002). 2 Naval Law Review LVI II. THE JUS AD BELLUM SCHEMA Set out in the United Nations Charter, the jus ad bellum schema is linear. Pursuant to Article 2(4), States Party to the Charter agree to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”7 There are two universally accepted exceptions to the prohibition. A. Security Council Mandate The first occurs when the Security Council determines pursuant to Article 39 that a breach of the peace, act of aggression, or threat to the peace exists.7 Having made such a determination, and having attempted to resolve the situation through non-forceful measures as required by Article 41 (or determining that they would prove fruitless),8 the Council may authorize the use of force to maintain or restore international peace and security pursuant to Article 42.9 Such actions are known variously as Chapter VII, peace enforcement, or collective security operations. In the eyes of the Security Council, international terrorism qualifies as a threat to international peace and security. It made exactly that finding the very day after the attacks of September 11. In Resolution 1368, the Council “[u]nequivocally condemn[ed] in the strongest terms the horrifying terrorist attacks which took place on 11 September 2001 in New York, Washington, D.C. and Pennsylvania and regards such acts, like any act of international terrorism, as a threat to international peace and security.”10 Note the scope of the Council’s characterization of any act of international terrorism as a threat to international peace and security. It did so again on 28 September in Resolution 7 U.N. Charter, art. 2, para. 4. 7 U.N. Charter, art. 39. “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” 8 U.N. Charter, art. 41. “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.” 9 U.N. Charter, art. 42. “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.” 10 S.C. Res. 1368, ¶ 1, U.N. Doc. S/RES/1368 (Sept. 12, 2001). 3 2008 Responding to Transnational Terrorism Under the Jus Ad Bellum 1373, which encouraged international cooperation in the fight against terrorism, specifically through implementation of international conventions.11 On 12 November, the Council adopted Resolution 1377, to which a Ministerial-level declaration on terrorism was attached. The declaration branded international terrorism “one of the most serious threats to international peace and security in the twenty-first century,” declared it “a challenge to all States and to all of humanity,” reaffirmed the Council’s “unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation, in all their forms and manifestations, wherever and by whomever committed,” and called on “all States to intensify their efforts to eliminate the scourge of international terrorism.”12 Since then, the Security Council has characterized terrorist attacks as threats to international peace and security with great regularity: Bali (2002),13 Moscow (2002),14 Kenya (2002),15 Bogotá (2003),16 Istanbul (2003),17 Madrid (2004),18 London (2005),19 and Iraq (2005).20 It is, therefore, irrefutable that international terrorism constitutes a qualifying condition precedent to Article 42 action. On repeated occasions, the Council, exercising its Chapter VII powers, has encouraged, and sometimes required, States to cooperate in combating international terrorism. Most notably, in Resolution 1373, it obliged them to, inter alia, prevent the financing of terrorism; criminalize the collection of funds for terrorist purposes; freeze the financial assets of anyone who participates in, or facilitates, terrorism; and take any steps necessary to prevent terrorist acts, including passing early-warning 11 S.C. Res. 1373, U.N. Doc. S/RES 1373 (Sept. 28, 2001). The resolution “reaffirmed” Resolution 1373, as well as S.C. Resolution 1269 (Oct. 19, 1999), which had “[u]nequivocally condemn[ed] all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation, in all their forms and manifestations, wherever and by whomever committed, in particular those which could threaten international peace and security.” See also S.C. Res. 1455, U.N. Doc S/RES/1455 (Jan. 17, 2003); S.C. Res.1566, U.N. Doc. S/RES/1566 (Oct. 8, 2004); S.C. Res. 1526, U.N. Doc. S/RES/1526 (Jan. 30, 2004); S.C. Res. 1535, U.N. Doc. S/RES/1535 (Mar. 26, 2004); and S.C. Res. 1617, U.N. Doc. S/RES/1617 (July 29, 2005). 12 S.C. Res. 1377, Annex, U.N. Doc. S/RES/1377 (Nov. 12, 2001). In 2003, the Council, meeting at the Foreign Minister Level, adopted a similar declaration. S.C. Res. 1456, U.N. Doc. S/RES/1456 (Jan. 20, 2003). At the 2005 Security Council Summit, Resolution 1624, U.N. Doc S/RES/1624 (Sept. 14, 2005) was adopted, again calling on Member States to intensify their domestic and international efforts to combat terrorism. 13 S.C. Res. 1438, U.N. Doc. S/RES/1438 (Oct. 14, 2002). 14 S.C. Res. 1440, U.N. Doc. S/RES/1440 (Oct. 24, 2002). 15 S.C. Res. 1450, U.N. Doc. S/RES/1450 (Dec. 13, 2002). 16 S.C. Res. 1465, U.N. Doc. S/RES/1465 (Feb. 13, 2003). 17 S.C. Res. 1516, U.N. Doc. S/RES/1516 (Nov. 20, 2003). 18 S.C. Res. 1530, U.N. Doc. S/RES/1530 (Mar.11, 2004). 19 S.C. Res. 1611, U.N. Doc. S/RES/1611 (July 7, 2005). 20 S.C. Res. 1618, U.N. Doc. S/RES/1618 (Aug. 4, 2005) 4