INTRODUCTION

On September 11, 2001, the United States suffered shocking terroristic attacks on the World Trade Center in New York and the Pentagon in Washington, D.C. Most agree that the attacks were perpetrated by Osama bin Laden and some of his al Qaeda followers and that these same nonstate actors had been behind previous attacks on the U.S.S. Cole and U.S. embassies in Kenya and Tanzania. On October 7, 2001, the United States used massive military force in self-defense against such ongoing processes of armed attack by bin Laden and members of al Qaeda in Afghanistan. At that time, the United States also used massive military force against members of the armed forces of the Taliban regime in Afghanistan. This upgraded an ongoing belligerency or international armed conflict in Afghanistan between the Taliban and the Northern Alliance and triggered application of the laws of war with respect to U.S. military responses in the Afghan theater of war.

By November 13, 2001, President Bush had made the erroneous claim that the September 11 attacks were acts of international terrorism of such an intensity as to create “a state of armed conflict” and that they amounted to acts of “war” by bin Laden and his followers. The Bush administration also argued that it had a right to detain any member of al Qaeda and other persons allegedly posing threats to national security without trial as “enemy” or “unlawful” combatants whether or not they were captured inside Afghanistan or in connection with the October 7 war with the Taliban.