Thomas M. McDonnellProfessor of LawBA, Fordham UniversityJD, Fordham University School of LawCo-chair of ASIL Teaching International Law Interest group (2008-2011)Professor Thomas McDonnell's scholarship has long focused on those policies and practices of the United States that violate the letter or spirit of international law. He has been particularly concerned about the counterterrorism policies that the Bush-Cheney Administration adopted after the September 11 attacks and continued by the Obama Administration. Among the actions most troubling to McDonnell are the invasion of Iraq, the harsh treatment of detainees, and the extraordinary rendi-tion of detainees to countries that routinely engage in torture. By refusing to fund the transport of Guantánamo Bay Detainees to the U.S., Congress has also contributed to the use of untested military commissions rather than trial in civilian, article III Federal Courts.McDonnell's book, United States, International Law, and the Struggle Against Terrorism, which was released in paperback this August, discusses critical legal issues raised by the United States' responses to the terrorist threat. It highlights such issues as torture, indefinite detentions, extraordinary rendition, right to trial, military commissions, the death penalty, targeted killing, the right of self-determination, and the invasions of Afghanistan and Iraq. The book examines these issues against the backdrop of terrorist movements that have plagued Britain and Russia, and also discusses the historical roots of modern Islamic terrorism. This work attempts to look beyond U.S. counter-terrorism policy and practice to the challenges all modern democracies face in trying to stop international terrorism.According to McDonnell, when the U.S. engages in counterter-rorism policies that violate international law, we undermine our moral authority, alienate our allies, and strengthen the extremists in Islamic countries. To fight an organization like al-Qaeda and its affiliates, the U.S. needs international cooperation; without people on the ground in Islamic communities around the world, our technology can only take us so far. Moreover, morally ques-tionable actions can be counterproductive: The targeted killing of a religiously motivated terrorist leader may inspire many oth-ers to join or support the terrorist group. Given that al Qaeda and its affiliates have become increasingly unpopular in the Mus-lim world, there is all the more reason to follow international law strictly so as to prevent their resurgence. Tactics like targeted killing should be used as a last resort when an individual poses an imminent threat to the U.S., McDonnell argues.United States, International Law, and the Struggle against Terrorism 6 Pace Law SchoolUsing remotely controlled weaponized drones to kill suspected Islamic terrorists from a hit list raises serious legal, strategic, and moral questions. First, we should not entrust a secret service like the Central Intelligence Agency with such authority (as the Obama Administration as well as the Bush Administration have done), and, second, we should use such an explosive tactic only as a last resort, not as a routine practice as the current administration has adopted.""
ExcerptUnited States, International Law, and the Struggle against Terrorism (Routledge, 2011)It is remarkable that in less than two years so many significant developments have taken place that concern the United States and the struggle against transnational terrorism. Perhaps the three most significant are as follows: (1) the Obama Administration's failure to reject wholesale the Bush-Cheney Administration's counterterrorism policies and practices; (2) the popular revolts sweeping the Arab world, often referred to as the "Arab spring"; and (3) the U.S. Navy Seals killing Osama bin Laden in Abbottabad, Pakistan. As noted in the first edition, the Obama Administration is to be commended for moving many suspected terrorists for trial in U.S. federal court. Furthermore, after a "year-long review of all detainee files," the Obama Administra-tion cleared for release over half of the 242 Guantánamo Bay prisoners still remaining when Obama took office. The Obama Administration has "repatriated, resettled or transferred" a third of these detainees. The Obama Administration has apparently carried through on the President's inauguration day promise to end torture and cruel, degrading and inhuman treatment of detained suspected Islamic terrorists, a crucial step toward restoring the moral authority of the United States. President Obama has also ordered that the infamous CIA black sites be closed. In other areas of international law, the Obama Administration has renewed U.S. efforts to cooperate with the International Criminal Court. The Administration also obtained a binding chapter VII Security Council reso-lution approving the use of force against Libya to protect the civilian population and has insisted on allies playing key leadership and combat roles, all a departure from the generally unilateral approach that had been the previous administration's hallmark, at least in its first term.On the other hand, the Obama Administration has failed to fulfill its promise to close the Guantánamo Bay detention facility. Not only has the Administration failed to do so, but has announced that it intends to detain indefinitely without trial 47 suspected Islamic terrorists. The first edition criticized the Obama Administration for appealing the 2009 U.S. federal district court decision in Maqaleh v. Gates, which had extended the right of habeas corpus to detainees who had been brought from other countries to Bagram Airbase in Afghanistan. As I feared, the Court of Appeals for the District of Columbia reversed that decision, enabling the creation of yet another legal black hole to take the place of Guantánamo Bay. Given the current make-up of the Supreme Court and Justice Elena Kagan's promise to recuse herself in all cases in which she was involved as the Solicitor General, the Court of Appeals ruling will almost certainly stand for years to come.Congress has also contributed to the violation of international law by prohibiting the use of funds from the Defense Authorization Act to transport GITMO detainees to the United States for trial and prosecution. This legislation, if not found unconstitutional, in effect prohibits trying any GITMO detainee in U.S. federal courts. The legislation contributes to GITMO detainees being tried by military commissions, special courts which do not comport with the Geneva Conventions. The legislation also prohibits the use of federal funds to transfer any detainee to any foreign country unless certain oner-ous criteria are met. In cases in which the Administration wishes to release a detainee, the only option is to find a country that is willing to accept that person. Congress's rigid rules will make that process-already a difficult one-increasingly hard to accomplish. Consequently, the Congressional legislation will abet prolonged, if not indefinite detention of individuals whom the Executive has concluded are entitled to freedom.Perspectives Fall 2011 7