Westminster at War
Two alumni reflect on the seventeenth anniversary of the War on Terror
by Joshua Madrigal (’06) and Andrew Shaver (’07)
footnotes edited and fact-checked by Eric Mellmer (Honors ’19)
On a horrifying morning in September 2001, a few weeks into our first year at Westminster College, the United States experienced the worst terrorist attack in its history.[1] That night, students held a candlelight vigil along 1300 East in solidarity with a united country. In the years that followed, Westminster students joined a national conversation debating the legality, strategic logic, and morality of the War on Terror as the United States invaded Afghanistan[2] and Iraq,[3] and confronted hostile non-state actors across the globe.[4] As the War on Terror enters its 17th year, today’s Westminster students must grapple with issues we faced over a decade ago: the United States’ continued engagement with violent non-state actors and the acceptability of torture against unlawful combatants.
Today, the United States maintains active military engagements in both Iraq and Afghanistan. Although ISIS—an offshoot of Al-Qaeda—is once again on the defensive, Iraq’s long-term stability remains precarious.5 Afghanistan’s future is far more imperiled, as the Taliban contests control of large swaths of the country’s territory.6 Outside of these countries, from Niger7 to Yemen,[8] the United States remains engaged against violent non-state actors around the world.
What has the United States learned from its post-9/11 engagements?[9] Although countries that support terrorism may easily be toppled, doing so can produce hordes of fighters intent on harming the United States and enormous reconstruction and stabilization challenges. The costs of modern occupation can be tremendous. During the Iraq and Afghanistan wars, insurgents carried out hundreds of thousands of attacks against American-led security forces.[10] The rapid development and increasing sophistication of improvised explosive devices provide combatants with relatively inexpensive means of combating even the most professional militaries.[11] Furthermore, although small, locally tailored development initiatives can be effective in countering terrorist and insurgent violence, their effects are generally modest, and large-scale development programs may actually be counterproductive. And significant care must be taken to ensure that civilians are safeguarded in the process. [12], [13] Indeed, civilians play an important and often overlooked role in conflict outcomes. Minimizing civilian harm is not only consistent with legal and ethical imperatives but can also be strategically advantageous.[14]
Westminster’s students need to consider the degree of risk posed by terrorism and how much attention it warrants. Despite the US’s global engagement with violent non-state actors,[15] conversations about the magnitude of the threat they pose are rare. Relative to a wide variety of hazards to which Americans are regularly exposed, terrorism’s threat to Americans’ safety is exceedingly small.[16], [17], [18] Terrorism is a tactic frequently employed by weak political actors for whom alternative tactics are unavailable.[19] America’s overreaction to terrorism provides its perpetrators the attention they seek and diverts attention from competing national security concerns including Russian interference in US elections and China’s rise, and potentially diverts governmental resources from other pressing public-policy challenges for which the returns in lives saved are likely to be significantly greater.[20]
Relentlessly, however, the War on Terror continues into its 17th year. The 2001 Authorization for Use of Military Force (2001 AUMF), passed in the days after September 11th, is not a declaration of war.[21] Nevertheless, the 2001 AUMF continues to serve as the primary legal basis for the US military’s engagements from Afghanistan to the Philippines.[22] Does the 2001 AUMF now accurately reflect the constitutional balance of war-making authority? Under the Constitution, the authority to involve the United States in belligerent actions is balanced between Congress[23] and the president[24] in what Justice Jackson deemed a “zone of twilight.”[25] Congress has the authority to declare war, but the president, as Commander-in-Chief, has the authority to defend the United States. The debate to repeal[26] or reform[27] the AUMF continues to this day, and it is a conversation Westminster students urgently need to join.
The War on Terror often seems like a distant chimera confronted in lands far from our own. We think that by confronting that monster, we are defending our values from those who seek to destroy them. Yet the manner in which that conflict is prosecuted not only has strategic implications but actually defines our values. Sadly, Westminster students may once again find themselves immersed in ethical debates surrounding so-called “enhanced interrogation” techniques.[28], [29], [30] With minimal changes,[31] a president could set the United States back on a course to torturing detainees.[32] Post Hamdan, the United States struggled to determine the appropriate treatment of unlawful combatants in U.S. custody,[33] and in 2009, President Obama signed Executive Order 13,491, permitting the use of interrogation techniques only by those authorized in the Army Field Manual.[34], [35] Regardless, a president who believes that the Bush-era program worked[36] and is willing to reengage in it[37] could undo that order with the swipe of a pen.[38], [39] Our country remains deeply divided on the issue of torture. How that debate will be resolved is not clear, but it will require the deep introspection Westminster students are known for.
Joshua Madrigal (’06) is a director of government affairs with Framatome, Inc., a multinational corporation focused on civilian nuclear-energy deployment. Prior to joining Framatome, he graduated from Westminster and Harvard Law School, where he focused on national security law. He has worked with the International Atomic Energy Agency, the Department of Homeland Security, and the Department of Justice on national security issues. Andrew Shaver (’07) is a lecturer and Niehaus Fellow in US foreign policy and international security at Dartmouth College. His research focuses on contemporary conflict and its psychological, climatic, and territorial underpinnings. After graduating from Westminster, he went to work for the Office of the Secretary of Defense in Iraq, where he was engaged in efforts to quell violence there by revitalizing the country’s economy. He has also worked on foreign affairs for the Office of the Under Secretary of Defense for Policy, the US Senate, and Ambassador Jon Huntsman’s presidential campaign and was a research fellow at Harvard University. Andrew earned his MPA, MA, and PhD from Princeton University.
[1] “The 9/11 Commission Report,” National Commission on Terrorist Attacks Upon the United States, 2004, http://govinfo.library.unt.edu/911/report/index.htm.
[2] Patrick Tyler, “A Nation Challenged: The Attack; U.S. and Britain Strike Afghanistan, Aiming at Bases and Terrorist Camps; Bush Warns ‘Taliban Will Pay a Price’,” The New York Times, October 8, 2001, https://www.nytimes.com/2001/10/08/world/nation-challenged-attack-us-britain-strike-afghanistan-aiming-bases-terrorist.html.
[3] David E. Sanger and John F. Burns, “Threats and Responses: The White House; Bush Orders Start of War on Iraq; Missiles Apparently Miss Hussein.” The New York Times. March 20, 2003, https://www.nytimes.com/2003/03/20/world/threats-responses-white-house-bush-orders-start-war-iraq-missiles-apparently.html.
[4] Clayton Thomas, “Al Qaeda and U.S. Policy: Middle East and Africa,” CRS Report, February 5, 2018, https://fas.org/sgp/crs/mideast/R43756.pdf.
[5] Helene Cooper and Gardiner Harris, “Anti-American Cleric’s Power Grows, Upending Pentagon’s Plans for Iraq,” New York Times, May 17, 2018, https://www.nytimes.com/2018/05/17/world/middleeast/pentagon-future-iraq-election-sadr.html
[6] Andrew Shaver and Joshua Madrigal, “Losing in Afghanistan,” Foreign Affairs, June 01, 2017, https://www.foreignaffairs.com/articles/afghanistan/2016-09-22/losing-afghanistan
[7] Jim Garamone. “Niger Report Highlights Bravery of U.S. Troops, Notes Training, Planning Deficiencies,” U.S. Department of Defense, May 10, 2018, https://www.defense.gov/News/Article/Article/1517497/niger-report-highlights-bravery-of-us-troops-notes-training-planning-deficienci/.
[8] Cheryl Pellerin. “Pentagon Provides Updates on Support for Operation in Yemen, Somalia,” U.S. Department of Defense, August 4, 2017, https://www.defense.gov/News/Article/Article/1269091/pentagon-provides-updates-on-support-for-operations-in-yemen-somalia/.
[9] The list of research findings is too great to describe here. However, we highlight several.
[10] Andrew Shaver, “Data and Materials,” U.S. Central Command Significant Activities Datasets, https://scholar.princeton.edu/ashaver/data-materials-0.
[11] Francesco Trebbi, Eric Weese, Austin L. Wright, and Andrew Shaver. “Insurgent Learning,” National Bureau of Economic Research, June 2017, http://www.nber.org/papers/w23475.
[12] Radha Iyengar, Jacob N. Shapiro, and Stephen Hegarty. “Lessons Learned from Stabilization Initiatives in Afghanistan: A Systematic Review of Existing Research,” RAND Corporation, 2017, https://www.rand.org/pubs/working_papers/WR1191.html.
[13] Eli Berman, Jacob N. Shapiro, and Joseph H. Felter. “Can Hearts and Minds be Bought? The Economics of Counterinsurgency in Iraq.” Journal of Political Economy 119, no. 4 (2011): 766-819, doi: 10.3386/w14606.
[14] Andrew Shaver and Jacob Shapiro. “The Effect of Civilian Casualties on Wartime Informing: Evidence from the Iraq War.” Journal of Conflict Resolution. (forthcoming).
[15] In many settings, terrorism is one tactic of many that violent non-state actors may employ. For conceptual clarity, we avoid referring to “terrorists” specifically. See, for instance, Ethan Bueno de Mesquita, “Rebel Tactics,” Journal of Political Economy 121, no. 2 (2013): 323-357, http://www.jstor.org/stable/10.1086/670137.
[16] Andrew Shaver, “You’re more likely to be fatally crushed by furniture than killed by a terrorist,” The Washington Post, November 23, 2015, https://www.washingtonpost.com/news/monkey-cage/wp/2015/11/23/youre-more-likely-to-be-fatally-crushed-by-furniture-than-killed-by-a-terrorist/?noredirect=on&utm_term=.a32fd7ec2707.
[17] Particular biotechnological developments, however, could significantly alter this dynamic, potentially providing violent non-state actors with the means to develop deadly designer pathogens. See Ali Nouri and Christopher F. Chyba, “Biotechnology and Biosecurity,” Global Catastrophic Risks, ed. Nick Bostrom and Milan M. Ćirkovic (Oxford: Oxford University Press, 2008).
[18] This is not to trivialize the threat of terrorism outside of the United States. Countries like Afghanistan, Iraq, and Pakistan are far more susceptible to terrorist violence. See, for instance, Rivinius, Jessica. “Majority of 2013 terrorist attacks occurred in just a few countries.” Press Release (2014): 1-2.
[19] Ethan Bueno de Mesquita, “Rebel Tactics,” Journal of Political Economy.
[20]Andrew Shaver, “You’re more likely to be fatally crushed by furniture than killed by a terrorist,” The Washington Post.
[21] Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001). The 2001 AUMF was approved by Congress on September 14, 2001 and signed by President George W. Bush on September 18, 2001. The 2001 AUMF targeted “those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks….”
[22] Matthew Weed, “Presidential References to the 2001 Authorization for Use of Military Force in Publicly Available Executive Actions and Reports to Congress,” Congressional Research Service, May 11, 2016, https://fas.org/sgp/crs/natsec/pres-aumf.pdf.
[23] U.S. Const. art. I, § 8. (“[t]he Congress shall have the Power…to declare War, grant letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”)
[24] Id. at art. II, § 2. (designating the president as the “Commander in Chief of the Army and Navy of the United States.”)
[25] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579. (1952). In his famous concurrence, Justice Jackson viewed the constitutionality of executive action within three categories: where the president “acts pursuant to an express or implied authorization of Congress”, where the president “acts in absence of either congressional grant or denial of authority” and where there exists a “zone of twilight in which he and Congress may have concurrent authority”, and when the president “takes measures incompatible with the express or implied will of Congress.” Id. at 636-637. When the president acts within the first category, his power is at its most constitutionally powerful. In the third category, the president’s authority is at its weakest. The second category has dominated Supreme Court juris prudence ever since. Typically, this category is invoked when the president acts in the absence of congressional action and where the president relies upon his inherent authority under Article II. In this sense, Congress and the president have independent, overlapping, and indistinct authority under the Constitution with respect to certain matters.
[26] United States. Cong. House of Representatives. Repeal of the Authorization for Use of Military Force. 115th Cong. 1st Sess. H.R.1229.
[27] United States Congress. A joint resolution to authorize the use of military force against the Taliban, al Qaeda, the Islamic State in Iraq and Syria, and designated associated forces, and to provide an updated, transparent, and sustainable statutory basis for counterterrorism operations. S.J.Res.59. 115th Cong. 2nd sess.
[28] In the months following the September 11th attacks, the Office of Legal Counsel at the Department of Justice issued a series of memos that infamously became known as the “torture memos.” See Memorandum from Jay S. Bybee, Assistant Attorney General, to Alberto R. Gonzales, Counsel to the President, on Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A (Aug. 1, 2002) [hereinafter Bybee Memo] (interpreting the federal torture statute). See also Memorandum for John A. Rizzo, Senior Deputy Gen. Counsel of the Cent. Intelligence Agency, Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May be Used in the Interrogation of High Value al Qaeda Detainees (May 30, 2005) (applying the standards developed from the Bybee Memo to the interrogation plan for Abu Zubaydah).
[29] Exec. Order No. 13,491, 74 Fed. Reg. 4893 (Jan. 27, 2009). [Hereinafter Executive Order 13,491)
[30] James Risen and Sheri Fink, “Trump Said ‘Torture Works.’ An Echo is Feared Worldwide,” New York Times, January 6, 2017, https://www.nytimes.com/2017/01/05/us/politics/trump-torture-guantanamo.html. See also Matthew Rosenberg, “Gina Haspel, C.I.A. Deputy Director, Had Role in Torture,” New York Times, February 3, 2017, https://www.nytimes.com/2017/02/02/us/politics/cia-deputy-director-gina-haspel-torture-thailand.html.
[31] See Department of the Army, Field Manual 2-22.3 (34-52): Human Intelligence Collector Operations, September 2006, https://fas.org/irp/doddir/army/fm2-22-3.pdf.
[32] Vivian S. Chu and Todd Garvey, “Congressional Research Service, Executive Orders: Issuance, Modification, and Revocation,” Congressional Research Service, April 16, 2014, https://fas.org/sgp/crs/misc/RS20846.pdf.
[33] In 2006, the Supreme Court ruled that the Geneva Conventions’ Common Article 3 applied to detainees in the War on Terror in Hamdan. Hamdan v. Rumsfeld, 126 S. Ct. 2749, (2006). This included, via the Uniform Code of Military Justice, military commissions for unlawful combatants. Indeed, Congress had already criminalized violations of Common Article 3. See War Crimes Act of 1996, Pub. L. No. 104-192, § 2, 110 Stat. 2104, (2014.) However, in the wake of Hamdan, Congress passed the Military Commissions Act (MCA) amending the War Crimes Act of 1996 to revise the level of conduct that would constitute a “grave breach” of Common Article 3. Under the MCA, “torture” is characterized as “severe physical or mental pain or suffering.” Cruel or inhuman treatment is defined as constituting “serious physical or mental pain or suffering” defined as “extreme pain.” Military Commissions Act of 2006, Pub. L. No. 109-366, § 6(b)(1)(B), 120 Stat. 2600, 2633 (codified at 18 U.S.C.A. § 2441(d)(1)(A)). The MCA then delegated to the president the authority to identify, by executive order, forms of interrogation that would not violate treaty obligations under Common Article 3. Id. at § 6(a)(3)(A)-(C). In the final year of President George W. Bush’s presidency, the president issued an executive order per the MCA that sought to clarify the treatment of detainees. See Exec. Order No.13,440, 3 C.F.R. 229 (2008). [Hereinafter referred to as Executive Order 13,440]. Two days into President Barack Obama’s administration, however, a new executive order was issued that sought to significantly limit interrogation techniques bordering dangerously close to torture under the international law. See Exec. Order No. 13,491 (2009). [Hereinafter Executive Order 13,491].
[34] Executive Order 13,491, at § 3(b).
[35] Executive Order 13,491 superseded Executive Order 13,440 and specifically revoked “[a]ll executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the Central Intelligence Agency (CIA) from September 11, 2001 to January 20, 2009” with respect to interrogation and detention. (stating that these memos were revoked “to improve the effectiveness of human intelligence-gathering, to promote the safe, lawful, and humane treatment of individuals in United States custody and of United States personnel who are detained in armed conflicts, to ensure compliance with treaty obligations of the United States, including the Geneva Conventions, and to take care that the laws of the United States are faithfully executed.”) Id. at § 3(c).
[36] Alec Tyson, “Americans Divided in Views of Use of Torture in U.S. Anti-Terror Efforts,” Pew Research Center, January 26, 2017, http://www.pewresearch.org/fact-tank/2017/01/26/americans-divided-in-views-of-use-of-torture-in-u-s-anti-terror-efforts/.
[37] United States Senate, “U.S. Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program,” April 13, 2014, https://fas.org/irp/congress/2014_rpt/ssci-rdi.pdf. The SSCI majority report is the only comprehensive history of the Central Intelligence Agency’s detention and interrogation program. However, only the executive summary of a still classified 6,700-page report on the CIA program. Nevertheless, the executive summary notes a disturbing history both in terms of the interrogation methods used and the CIA’s attempts to obstruct oversight by the Legislative branch concerning the CIA’s program. See also Mark Mazetti and Carl Hulse, “Inquiry by C.I.A. Affirms It Spied on Senate Panel.” New York Times. July 31, 2014, https://www.nytimes.com/2014/08/01/world/senate-intelligence-commitee-cia-interrogation-report.html.
[38] See e.g. Executive Order 13,440.
[39] National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92 § 1045, 129 Stat. 726, 977. [hereinafter the Defense Act]. The Defense Act provision with respect to torture first restricted the entire U.S. government (including the clandestine services) to the interrogation techniques found in the Army Field Manual on Human Intelligence Collection, that there be a “thorough review” of the aforementioned manual to ensure compliance with certain standards of interrogation and legal obligations within three years and again every three years thereafter, and that the International Committee of the Red Cross be granted prompt access to any detainee held by the United States government.
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The Westminster Review is Westminster University’s bi-annual alumni magazine that is distributed to alumni and community members. Each issue aims to keep alumni updated on campus current events and highlights the accomplishments of current students, professors, and Westminster alum.
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