The United States, International Law, and the Struggle against Terrorism by Thomas Michael McDonnell (review)

Although the phenomenon of terrorism dates back millennia and the Cold War witnessed many examples, Thomas McDonnell's valuable book, originally published in 2009, focuses mainly on the period after the attacks of 11 September 2001. The author, a professor of law at Pace University, offers a sophisticated analysis of the legal and pragmatic implications of the reactions of the George W. Bush administration to 9/11.

The core of the book consists of several chapters analyzing the legality of many of the practices associated with what the Bush administration called the Global War on Terrorism (following a critique of that designation in chapter two): indefinite detention, trials before military commissions, torture, and targeted killing of suspected terrorists; a preventive war in Iraq; and the invasion and occupation of Afghanistan for being a "haven state" for al Qaeda terrorists. Part I includes chapters devoted to "torture light," "torture heavy," and the specific scenario of the "ticking time bomb." McDonnell exhibits a solid command of the legal literature and the history that has emerged from declassified documents and the investigative journalism of Ron Suskind, Jane Mayer, Dana Priest, and others. Chapter six addresses the question of indefinite detention without trial by exploring the status of the detainees and the relevant international law. Among the controversial issues he confronts are to what extent the laws of war—international humanitarian law (IHL)—apply to the people the U.S. government has detained. Some were picked up on the battlefields of Afghanistan, but others were arrested in places like Pakistan and John F. Kennedy Airport in New York, and some were kidnapped in Bosnia or Italy. In the categories of the Geneva Conventions, the author probes whether the "global war on terrorism" is an armed conflict of an international or non-international character or whether it fails to rise to the level of an armed conflict at all because of its insufficient duration or intensity. These are difficult issues, and the author handles them with great sophistication and subtlety.

Part III of the book, titled "Stopping Terrorists on the Ground," contains a chapter on targeted killing (including by drones) and a chapter on "collateral damage." The latter chapter focuses on the relatively meager law governing aerial bombardment and other attacks in which civilians are put at risk. McDonnell makes an observation about the 1999 Rome Statute (the basis for the International Criminal Court) that is not much noted elsewhere in the literature. In 1977 the guidelines on distinction (between civilian and military targets) and proportionality adopted in the First Additional Protocol to the 1949 Geneva Conventions had prohibited "launching any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated" (p. 142; emphasis in original). McDonnell points out that the Rome Statute, in defining war crimes, used much the same language but substituted "clearly excessive" for "excessive" and "overall military advantage" for "concrete and direct military advantage." He argues that the Additional Protocol "provides relatively little protection for civilians. The Rome Statute of the ICC provides even less" (p. 142). However, the point might be moot because the United States is not a party to either instrument.

Two of the most original analyses in the book are versions of pieces the author has published in law journals. The first is an argument that the U.S. use of the death penalty is counterproductive to its anti-terrorism efforts because of the potential to create martyrs. The second is a critique of the practice of ethnic and racial profiling on legal and pragmatic grounds.

Among the more thought-provoking themes in the book is McDonnell's comparison of the relative importance of IHL governing warfare and human rights law. Many legal specialists would claim that IHL constitutes lex specialis for situations of armed conflict and thereby overrides the...