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Terrorist Attacks on World Trade Center and Pentagon

  • Sean D. Murphy
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1 See Grunwald, Michael, Terrorists Hijack 4 Airliners, Destroy World Trade Center, Hit Pentagon; Hundreds Dead, Wash. Post, Sept. 12, 2001, at A1 ; Firestone, David & Canedy, Dana, F.B.I. Documents Detail the Movements of 19 Men Believed to Be Hijackers!, N.Y. Times, Sept. 15, 2001, at A3 .

2 See Grunwald, Michael, Terror’s Damage: Calculating the Devastation, Wash. Post, Oct. 28, 2001, at A12. The New York City comptroller issued a rough estimate of the cost of the attack on the World Trade Center: $11 billion in the loss of “human productive value”; $34 billion in property loss (an amount nearly double the damage from the previously worst disaster in U.S. history, Hurricane Andrew); $14 billion in cleanup and police costs; and $21 billion from the interruption of business in the lower Manhattan districts. Id. By contrast, U.S. investigators tracing the funds of the hijackers estimated that the cost of orchestrating the four hijackings was no more than $500,000. See Zernike, Kate & Van Natta, Don Jr., Hijackers’ Meticulous Strategy of Brains, Muscle and Practice, N.Y. Times, Nov. 4, 2001, at A1 .

3 See Dead and Missing, N.Y. Times, Jan. 28,2002, at A6; Lipton, Eric, Toll from Attack at Trade Center Is Down Sharply, N.Y. Times, Nov. 21, 2001, at A1 . Officials have continued to identify bodies, confirm deaths, and sort through errors and duplications, leading some to speculate that the final figure might be lower.

4 See Dead and Missing, supra note 3; Phillips, Don, Hijackers Targeted Pentagon, Data Show, Wash. Post, Sept. 21, 2001, at A10 ; Levine, Susan, Services Begin This Weekend for Pentagon Crash Victims, Wash. Post, Sept. 15, 2001, at A21 .

5 See Dead and Missing, supra note 3; Lane, Charles, Phillips, Don, & Snyder, David, A Sky Filled with Chaos, Uncertainty and True Heroism, Wash. Post, Sept. 17, 2001, at A3 .

6 Pub. L. No. 107–38,115 Stat. 220 (2001).

7 Air Transportation Safety System Stabilization Act, Pub. L. No. 107–42, 115 Stat. 230 (2001).

8 Id., Tide IV, 115 Stat. 230, 237 (2001).

9 The attorney general, acting through a special master, is responsible for administering the program. A claimant who files under the program can receive payment within 120 days without any showing of fault, but waives any right to file a civil action for damages sustained as a result of the attacks. All claims must be filed within two years after the initial regulations governing the program are promulgated by the Department ofjustice. Payments are made by the U.S. government, but the amount for which the claimant is eligible is left to the special master (applying the law of the state in which die crash occurred), does not include punitive damages, and is to be reduced by amounts received by the claimant from other sources. The law called for the regulations to be established by December 21, 2001. For information on the regulations, see Notice of Inquiry and Advance Notice of Rulemaking, 66Fed. Reg. 55,901 (Nov. 5, 2001). See<>; see also Henriques, Diana B. & Barstow, David, Victims’Fund Likely to Pay Average of$1.6 Million Each, N.Y. Times, Dec. 21, 2001, at A1 .

10 See Goldstein, Amy, Hijackers Led by Core Group, Wash. Post, Sept. 30, 2001, at A1 .

11 See Eggen, Dan & Loeb, Vernon, U.S. Intelligence Points to Bin Laden Network, Wash. Post, Sept. 12, 2001, at Al . For background on bin Laden, see Bergen, Peter L., Holy War, Inc.: Inside The Secret World of Osama Bin Laden (2001).

12 See DeYoung, Karen & Dobbs, Michael, Bin Laden: Architect of New Global Terrorism, Wash. Post, Sept. 16, 2001, at A8 ; Pincus, Walter, Bin Laden Seeks Instability in Mideast, Ex-Agent Says, Wash. Post, Sept. 30, 2001, at A31 . For the U.S. military response to the bombings of the U.S. embassies in East Africa, see Murphy, Sean D., Contemporary Practice of the United States!, 93 AJIL 161 (1999).

13 See Frantz, Douglas & Bonner, Raymond, Web of Terrorism: Investigators See Links to bin Laden in Gaza and Across Europe, N.Y. Times, Sept. 23, 2001, at A1 ; see also Finn, Peter & Delaney, Sarah, Al Qaeda’s Tracks Deepen in Europe, Wash. Post, Oct. 22, 2001, at A1 ; Struck, Doug, Schneider, Howard, Vick, Karl, & Baker, Peter, Borderless Network of Terror, Wash. Post, Sept. 23, 2001, at Al .

14 After the Soviet Union withdrew its military forces from Afghanistan in 1989, Afghan militias previously allied against the Soviets turned on one another. A radical Islamic group, the Taliban, began seizing Afghan territory in 1994, starting at its home base in Kandahar province and reaching the capital, Kabul, in 1996. The Taliban quelled the militias and imposed a strict form of Islam throughout most of the country. For background on the Taliban, see Rashid, Ahmed, Taliban: Militant Islam, Oil and Fundamentalism in Central Asia (2001); Marsden, Peter, The Taliban: War, Religion and The New Order in Afghanistan (1998).

15 UK Press Release, 10 Downing Street Newsroom, Responsibility for the Terrorist Atrocities in the United States, paras. 21–22 (Oct. 4, 2001), at <>. This document was subsequently updated on November 14, 2001, see infra note 23.

16 [Editor’s Note: That individual reportedly was Khalid Almihdhar. See Gerth, Jeff & Van Natta, Don Jr., Suspect Is Linked to Other Attacks on American Sites, N.Y. Times, Oct. 6, 2001, at A1 . The USS Cole is a U.S. destroyer that was refueling in Yemen when a harbor boat containing a bomb exploded beside it, killing 17 sailors. See Burns, John F. & Lee Myers, Steven, Blast Kills Sailors on U.S. Ship in Yemen, N.Y. Times, October 13, 2000, at A1 .]

17 [Editor’s Note: News reports asserted that interrogations of bin Laden’s extended family in Saudi Arabia revealed that he had telephoned his mother in Syria on September 10 to tell her that he could not meet her there because “something big” was imminent that would end their communications for a long time. See Tyler, Patrick E. & Shenon, Philip, Call by bin Laden Before Attacks Is Reported, N.Y. Times, Oct. 2, 2001, at B5 .]

18 [Editor’s Note: That senior associate was subsequently reported as being Mohammed Atef, a former Egyptian policeman and an associate of bin Laden for more than a decade. See Eggen, Dan & Kovaleski, Serge F., Bin Laden Aide Implicated, Wash. Post, Oct. 7, 2001, at A1 . Atef was reportedly killed in the U.S. bombing campaign in mid-November 2001. See Risen, James, Bin Laden Aide Reported Killed by U.S. Bombs, N.Y. Times, Nov. 17, 2001, at A1 .]

19 UK Press Release, supra note 15, paras. 61–69. The document stated that this material “comes from intelligence and the criminal investigation to date. The details of some aspects cannot be given, but the facts are clear from the intelligence.” Id., para. 2.

20 See Tyler, Patrick E., British Detail bin Laden’s Link to U.S. Attacks, N.Y. Times, Oct. 5, 2001, at Al .

21 See Sanger, David E., White House Approved Data Blair Released, N.Y. Times, Oct. 6, 2001, at B6 .

22 See Burns, John F., Pakistan Finds U.S. Charges Good Enough for Court, N.Y. Times, Oct. 5, 2001, at B5 .

23 On November 14, the United Kingdom released a revised document asserting that bin Laden had made a videotape for distribution among Al Qaeda members in which he declared that his network instigated the September 11 incidents “in self-defence. And it was in revenge for our people killed in Palestine and Iraq.” See UK Press Release, 10 Downing Street Newsroom, Responsibility for the Terrorist Atrocities in the United States, para. 66 (Nov. 14, 2001), at <!d=3025>; see also Reid, T. R., Tape Proves Bin Laden Is Guilty, Britain Says, Wash. Post, Nov. 15, 2001, at A29. That videotape reportedly was of an interview of bin Laden by a Persian Gulf television network, Al Jazeera, that was never aired. See Risen, James & Tyler, Patrick E., Interview with bin Laden Makes the Rounds, N.Y. Times, Dec. 12, 2001, at B5. After U.S. ground forces were deployed to Afghanistan, the United States obtained possession of a videotape showing bin Laden laughing and boasting about the September 11 attacks, making statements such as “ [w] e calculated in advance the number of casualties from the enemy, who would be killed based on the position of the tower” (translated from Arabic). See Bumiller, Elisabeth, Bin Laden, on Tape, Boasts of Trade Center Attacks; U.S. Says It Proves His Guilt, N.Y. Times, Dec. 14, 2001, at A1.

24 See Finn, Peter, Czechs Confirm Key Hijacker’s ‘Contact’with Iraqi Agent in Prague, Wash. Post, Oct. 27, 2001, at A18 .

25 See Bonner, Raymond, Experts Doubt Iraq Had Role in Latest Terror Attacks, N.Y. Times, Oct. 11, 2001, at B7 ; see also Weiss, Rick, Germ Tests Point Away from Iraq, Wash. Post, Oct. 30, 2001, at A9 .

26 Exec. Order No. 13,224, 66 Fed. Reg. 49,079 (2001); see Allen, Mike & Blustein, Paul, Bush Moves to Cut Terrorists’Support, Wash. Post, Sept. 25, 2001, at A1 .

27 See U.S. Dep’t of State Press Release on Designation of 22 Foreign Terrorist Organizations Under Executive Order 13,224 (Nov. 2, 2001), at <>; Sipress, Alan, Crackdown Expanded to All Groups in Terror List, Wash. Post, Nov. 3, 2001, at A18. These groups were already listed on the State Department’s list of foreign terrorist organizations. For background on that list, see Murphy, Sean D., Contemporary Practice of the United States!, 94 AJIL 365 (2000).

28 See DeYoung, Karen & Eggen, Dan, $100 Million in Terrorists’Assets Frozen, U.S. Says, Wash. Post, Oct. 3, 2001, at A9 .

29 See Milbank, Dana & Day, Kathleen, Businesses Linked to Terrorists Are Raided, Wash. Post, Nov. 8, 2001, at A1 ; Williams, Daniel, Swiss Probe Illustrates Difficulties in Tracking Al Qaeda’s Cash, Wash. Post, Nov. 12, 2001, at A19 .

30 See Gerth, Jeff & Miller, Judith, U.S. Makes Inroads in Isolating Funds of Terror Groups, N.Y. Times, Nov. 5, 2001, at A1 ; Saudis Freeze Funds of 66 on U. S. List, N.Y. Times, Nov. 1, 2001, at B4.

31 See, e.g., Schneider, Howard, Lebanon Won’t Freeze Hezbollah Assets, Wash. Post, Nov. 9, 2001, at A21 .

32 Proclamation 7463, 66 Fed. Reg. 48,199 (Sept. 18, 2001).

33 Exec. Order No. 13,223, 66 Fed. Reg. 48,201 (Sept. 18, 2001).

34 [Editor’s Note: The War Powers Resolution of 1973, 50 U.S.C. §§1541–1548 (1994), calls upon the President to notify Congress within 48 hours any time that U.S. armed forces are introduced into situations involving hostilities or imminent hostilities, and in certain other situations. Pursuant to the resolution, the President then must terminate any use of those forces within 60 days unless Congress declares war, grants an extension, or is physically unable to meet.]

35 Authorization for Use of Military Force, Pub. L. No. 107–40, 115 Stat. 224 (2001).

36 Sec Address Before ajoint Session of the Congress on the United States Response to the Terrorist Attacks of September 11, 37 Weekly Comp. Pres. Doc. 1347, 1347 (Sept. 20, 2001) [hereinafter Address Before ajoint Session].

37 Exec. Order No. 13,228, 66 Fed. Reg. 51,812 (Oct. 10, 2001).

38 See. Hedges, Chris, The Inner Workings of a Plot to Blow Up the U. S. Embassy in Paris, N.Y. Times, Oct. 28, 2001, at B1 .

39 See Eggen, Dan & Woodward, Bob, FBI Issues 2nd Global Attack Alert, Wash. Post, Oct. 30, 2001, at A1 .

40 See Confirmed Anthrax Cases, Wash. Post, Nov. 1, 2001, at A8. Anthrax is a disease caused by the bacterium Bacillus anthracis, which occurs naturally in the soil in certain regions and can be maintained in laboratories. Unlike many bacteria, Bacillus anthracis can form spores, which are inactive and durable, and which can germinate into bacteria once inside a human. For background on the threat of bioterrorism, see The Threat of Bioterrorism and the Spread of Infectious Diseases: Hearing Before the Senate Comm. on Foreign Relations, 107th Cong. (2001). Anthrax spores were found at dozens of locations, forcing the closure of several major government offices, including congressional offices and the Supreme Court, and otherwise creating widespread apprehension about the receipt of mail in the United States. See, e.g., Morello, Carol & Goldstein, Avram, Anthrax Scare Closes High Court; Treatment Urged for Thousands, Wash. Post, Oct. 27, 2001, at A1 ; Lancaster, John & Schmidt, Susan, 31 Exposed to Anthrax on Capitol Hill; House Shuts Down; Senate Offices Close, Wash. Post, Oct. 18, 2001, at A1 . By mid-November, law enforcement authorities had identified only four letters sent through the U.S. postal system that contained anthrax spores: letters sent to Senate majority leader Tom Daschle, to Senator Patrick J. Leahy, to NBC news anchor Tom Brokaw, and to the offices of the New York Post newspaper. See Eggen, Dan & Schmidt, Susan, Fourth Anthrax Letter Discovered by FBI, Wash. Post, Nov. 17, 2001, at A1 ; Tracing the Deadly Path of Anthrax, N.Y. Times, Oct. 31, 2001, at B6.

41 See Johnston, David, Baffled F.B.I. Asks for Aid in Solving Riddle of Anthrax, N.Y. Times, Nov. 3, 2001, at A1 ; Slevin, Peter, No Consensus on Who Wrote Anthrax Letters, Wash. Post, Oct. 25, 2001, at A23 .

42 See Sciolino, Elaine, Bush Team Rejects U.N. Plan to Condemn Anthrax Attacks, N.Y. Times, Nov. 1, 2001, at B8 .

43 Address Before a Joint Session, supra note 36, at 1348; see Harris, John F. & Allen, Mike, President Details Global War On Terrorists and Supporters, Wash. Post, Sept. 21, 2001, at Al .

44 See Chandrasekaran, Rajiv, Taliban Rejects U.S. Demand, Vows a‘s howdown of Might,Wash. Post, Sept. 22, 2001, at Al ; Chandrasekaran, Rajiv , Taliban Refuses to Surrender Bin Laden; U.S. Develops Options for Military Action, Wash. Post, Sept. 19, 2001, at Al .

45 Address Before ajoint Session, supra note 36, at 1349.

46 SC Res. 1368, para. 1 (Sept. 12, 2001).

47 SC Res. 1373, paras. 1–3, 6 (Sept. 28, 2001).

48 SC Res. 1368, pmbl.; SC Res. 1373, pmbl.

49 GARes. 56/1 (Sept. 18, 2001).

50 See infra pp. 255–58.

51 North Atlantic Treaty Organization (NATO) Press Release No. 124, Statement by the North Atlantic Council (Sept. 12,2001), at <>. The “Washington Treaty” refers to the North Adantic Treaty, Aug. 24, 1959, TIAS 1964, 34 UNTS 243.

52 Secretary General Lord Robertson, Statement at NATO Headquarters (Oct. 2,2001), at <>; see Drozdiak, William & Chandrasekaran, Rajiv , NATO: U.S. Evidence on Bin Laden ‘Compelling,’ Wash. Post, Oct. 3, 2001, at Al1 . Few NATO states, however, had resources useful for conducting military operations in Afghanistan. See Daley, Suzanne, NATO, Though Supportive, Has Little to Offer Militarily, N.Y. Times, Sept. 20, 2001, at B5 ; but see Richburg, Keith B. & Brown, DeNeen L., Radar Planes from NATO toPatrol U.S. Coast, Wash. Post, Oct. 9, 2001, at A9 ; Romano, Lois, NATO Lends a Hand with U.S. Sky Patrol, Wash. Post, Nov. 19, 2001, at A3 .

53 Terrorist Threat to the Americas, Res. 1, Twenty-Fourth Meeting of Consultation of Ministers of Foreign Affairs Acting as Organ of Consultation in Application of the Inter-American Treaty of Reciprocal Assistance, OAS Doc. OEA/Ser.F/II.24/RC.24/RES.l/01 (Sept. 21, 2001), at <>; see Karen DeYoung, OASNations Activate Mutual Defense Treaty, WASH. POST, Sept. 20, 2001, at A18.

54 See MacFarquhar, Neil, Saudis Criticize the Taliban and Halt Diplomatic Ties, N.Y. Times, Sept. 26, 2001, at B5 ; Hoge, Warren, United Arab Emirates Breaks Diplomatic Ties with Taliban, N.Y. Times, Sept. 23, 2001, at B3 .

55 See Schneider, Howard, Persian Gulf Arab States Support Anti-Terror Effort, Wash. Post, Sept. 24, 2001, at A13 . The Gulf Cooperation Council consists of Bahrain, Kuwait, Oman, Qatar, Saudia Arabia, and the United Arab Emirates.

56 See Chandrasekaran, Rajiv, Taliban’s Envoy Admits Bin Laden Is in Afghanistan, Wash. Post, Oct. 1, 2001, at A10 .

57 See Frantz, Douglas, Taliban Say They Want to Negotiate with the U.S. over bin Laden, N.Y. Times, Oct. 3, 2001, at Bl .

58 President’s Radio Address, 37 Weekly Comp. Pres. Doc. 1429, 1430 (Oct. 6, 2001).

59 Letter dated 7 October 2001 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc. S/2001/946 (Oct. 7, 2001), at <–946.htm>. The United Kingdom provided a similar notification.

60 See Wren, Christopher S., U.S. Advises UN. Council More Strikes Could Come, N.Y. Times, Oct. 9, 2001, at B5 .

61 See Tyler, Patrick E., U.S. and Britain Strike Afghanistan, Aiming at Bases and Terrorist Camps; Bush Warns ‘Taliban Will Pay a Price,’ N.Y. Times, Oct. 8, 2001, at A1 .

62 Address to the Nation Announcing Strikes Against Al Qaida Training Camps and Taliban Military Installations, 37 Weekly Comp. Pres. Doc. 1432, 1432 (Oct. 7, 2001) [hereinafter Address to the Nation].

63 See Balz, Dan, U.S., Britain Launch Airstrikes Against Targets in Afghanistan, Wash. Post, Oct. 8, 2001, at Al .

64 See Graham, Bradley & Balz, Dan, U.S. Controls Skies, Hunts New Targets and Offers Support to Taliban‘s Foes, Wash. Post, Oct. 10, 2001, at Al ; Gordon, Michael R. & Lee Myers, Steven, U.S. Shifts Focus of Attack in Afghanistan by Bombing Ground Forces of Taliban, N.Y. Times, Oct. 11, 2001, at Al ; Loeb, Vernon & Ricks, Thomas E., Pentagon: Taliban Forces ‘Eviscerated,’ Wash. Post, Oct. 17, 2001, at Al .

65 See Shanker, Thorn & Schmitt, Eric, G.I. Raid Struck Taliban Leader’s Compound, N.Y. Times, Oct. 21, 2001, at Al .

66 See Schmitt, Eric & Lee Myers, Steven, U.S. Escalating Efforts to Bomb Taliban Caves, N.Y. Times, Nov. 6, 2001, at Al .

67 See Schmitt, Eric & Gordon, Michael R., Pentagon Says an Error Led to Bombings of Houses That Killed Four in Kabul, N.Y. Times, Oct. 14, 2001, at B5 .

68 See In Village Reportedly Struck by U.S. Air Attack, Destruction, Death and Anger, N.Y. Times, Oct. 15, 2001, at B4.

69 See Loeb, Vernon & Graham, Bradley, Errant Bombs May Have Hit Afghan Civilians, U.S. Says, Wash. Post, Oct. 24, 2001, at Al ; see also U.S. Airstrikes Kill 13 Civilians in Kabul, N.Y. Times, Oct. 29, 2001, at B3.

70 See Burns, John F., Errant Cluster Bomb Leaves Danger Behind, U.N. Says, N.Y. Times, Oct. 25, 2001, at B4 .

71 See Chandrasekaran, Rajiv, Villagers Describe Deadly Ajirstrike, Wash. Post, Nov. 2, 2001, at A21 . The Pentagon stated that it believed that there was a Taliban encampment near the village.

72 See Becker, Elizabeth & Schmitt, Eric, U.S. Planes Bomb a Red Cross Site, N.Y. Times, Oct. 27, 2001, at A1 .

73 See Graham, Bradley & Loeb, Vernon, Taliban Dispersal Slows U.S., Wash. Post, Nov. 6, 2001, at Al ; Branigin, William, Taliban’s Human Shields, Wash. Post, Oct. 24, 2001, at Al .

74 See Ricks, Thomas E., Target Approval Delays Cost Air Force Key Hits, Wash. Post, Nov. 18, 2001, at Al .

75 See Chandrasekaran, Rajiv, Predicted Outpouring of Afghan Refugees Is More Like Trickle,’ Wash. Post, Nov. 1, 2001, at A21 .

76 See Bin Laden’s Statement: ‘The Sword Fell,’ N.Y. Times, Oct. 8, 2001, at B7 (translated from Arabic by Reuters); see also MacFarquhar, Neil & Rutenberg, Jim, Bin Laden, in a Taped Speech, Says Attacks in Afghanistan Area War Against Islam, N.Y. Times, Nov. 4, 2001, at B2 .

77 See Bumiller, Elisabeth, President Rejects Offer by Taliban for Negotiations, N.Y. Times, Oct. 15, 2001, at Al .

78 See UK Press Release, 10 Downing Street Newsroom, Prime Minister’s Statement to the House of Commons (Oct. 8,2001), at <>. Prime Minister Blair asserted that the four-week delay in responding to the September 11 incidents was due to the need to (1) establish who was responsible for the incidents, (2) provide the Taliban an opportunity to turn over the perpetrators, and (3) develop military targets in Afghanistan that would minimize the possibility of collateral civilian casualties.

79 See Drozdiak, William & Struck, Doug, NATO Allies Offer Help for U.S. Military Action, Wash. Post, Oct. 5, 2001, at A26 .

80 See Sipress, Alan & Moore, Molly, Pakistan Grants Airfield Use; U.S. Pounds Taliban Bunkers, Wash. Post, Oct. 11, 2001, at Al ; Sciolino, Elaine & Lee Myers, Steven, Bush Says ‘Time is Running Out’; U.S. Plans to Act Largely Alone, N.Y. Times, Oct. 7, 2001, at Al ; Sipress, Alan, Emir Pledges Qatar’s Support but Offers Words of Caution, Wash. Post, Oct. 5, 2001, at A23 ; Landler, Mark, Philippines Offers U.S. Its Troops and Bases, N.Y. Times, Oct. 3, 2001, at A5 ; Loeb, Vernon & Ricks, Thomas E., U.S. Sends Troops to Ex-Soviet Republics, Wash. Post, Oct. 3, 2001, at A21 . In his speech to the nation, President Bush stated: “More than 40 countries in the Middle East, Africa, Europe and across Asia have granted air transit or landing rights. Many more have shared intelligence. We are supported by the collective will of the world.” Address to the Nation, supra note 62, at 1432.

81 See Allen, Mike & Pan, Philip P., China Vows to Help in Terror Fight, Wash. Post, Oct. 19, 2001, at A1 ; ckholm, Erik, China’s About-Face: Supportfor U.S. on Terror, N.Y. Times, Sept. 30, 2001, at A6 .

82 See Williams, Daniel, Mubarak Backs Strikes by U.S. on Afghanistan, Wash. Post, Oct. 10, 2001, at A17 .

83 See Thompson, Ginger, Fox Pledges Full Supportfor the U.S., N.Y. Times, Sept. 28, 2001, at B2 .

84 See LaFraniere, Sharon, Putin Gives U.S. Attacks a Strong Endorsement, Wash. Post, Oct. 9, 2001, at A16 .

85 See Williams, Daniel, Islamic Group Offers U.S. Mild Rebuke, Wash. Post, Oct. 11, 2001, at A21 .

86 See Arab League Condemns Bin Laden and His War, N.Y. Times, Nov. 5, 2001, at B5.

87 See Chandler, Clay, APEC Condems Attacks on U.S., Wash. Post, Oct. 22, 2001, at A11 .

88 See Sipress, Alan & Loeb, Vernon, U.S. Welcoming Allies’ Troops, Wash. Post, Nov. 11, 2001, at A38 .

89 See, e.g., Pub. L. No. 107–57, 115 Stat. 403 (2001) (authorizing the President to exercise waivers of foreignassistance restrictions with respect to Pakistan through September 2003); Perlez, Jane, U.S. Sanctions on Islamabad Will Be Lifted, N.Y. Times, Sept. 22, 2001, at Al ; Kahn, Joseph, U.S. Is Planning an Aid Package for Pakistan That Is Worth Billions, N.Y. Times, Oct. 27, 2001, at B4 .

90 See, e.g., Bragg, Rick, A Pro-Taliban Rally Draws Angry Thousands in Pakistan, Then Melts Away, N.Y. Times, Oct. 6, 2001, at B4 ; Bennet, James, Few Palestinians Back Assault on Afghanistan, Poll Shows, N.Y. Times, Oct. 12, 2001, at A4 ; Sullivan, Kevin, War Support Ebbs Worldwide, Wash. Post, Nov. 7, 2001, at A1 .

91 See Cushman, John H. Jr., New Orders Spur CIA. Hunt for bin Laden, N.Y. Times, Oct. 22, 2001, at B5 ; Gellman, Barton, CIA Weighs ‘Targeted Killing’ Missions, Wash. Post, Oct. 28, 2001, at Al . President Clinton also reportedly issued two classified presidential directives seeking bin Laden’s capture or death. See Risen, James, U.S. Pursued Secret Efforts to Catch orKillbin Laden, N.Y. Times, Sept. 30, 2001, at Al ; Woodward, Bob & Ricks, Thomas E., U.S. Was Foiled Multiple Times in Efforts to Capture Bin Laden or Have Him Killed, Wash. Post, Oct. 3, 2001, at A1 .

92 The executive order provides: “No person employed by or on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” Exec. Order No. 12,333, §2.11, 46 Fed. Reg. 59,941, 59,952 (1981) (issued by President Reagan) ;see also Exec. Order No. 12,036, 43 Fed. Reg. 3,675 (1978) (issued by President Carter); Exec. Order No. 11,905, 42 Fed. Reg. 7,707 (1976) (issued by President Ford).

93 U.S. Dep’t of Justice, Office of Legal Counsel, Memorandum on Legal Effectiveness of a Presidential Directive, as Compared to an Executive Order (Jan. 29, 2000), at <>.

94 The original executive order was adopted largely to head off legislation proposed in the Congress that would have barred assassination of foreign officials, expressly defined as senior officials of foreign governments. See Alleged Assassination Plots Involving Foreign Leaders: An Interim Report, S. Rep. No. 94–465, at App. A (1975) (an interim report of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, headed by Senator Frank Church).

95 Remarks to the United Nations General Assembly in New York City, 37 Weekly Comp. Pres. Doc. 1638, 1638–40 (Nov. 10,2001).

96 See, e.g., Ward Anderson, John & Moore, Molly, Rivalries Poison Political Efforts, Wash. Post, Nov. 1, 2001, at Al ; Constable, Pamela & Pomfret, John, Afghan Factions Far Apart on Government, Wash. Post, Oct. 25, 2001, at Al .

97 See Gordon, Michael R., U.S. Bombs Taliban’s Forces on Front Lines Near Kabul; Powell Sees Rebel Advance, N.Y. Times, Oct. 22, 2001, at Al .

98 See Branigin, William & Richburg, Keith B., Alliance Surges Across North, Wash. Post, Nov. 12, 2001, at A1 ; Branigin, William, Afghan Rebels Seize Control of Kabul, Wash. Post, Nov. 14, 2001, at Al ; Pomfret, John & Chandrasekaran, Rajiv, Taliban Faces Tribal Revolt, Wash. Post, Nov. 15, 2001, at Al ; Chandrasekaran, Rajiv & Loeb, Vernon, Taliban Under Assault in 2 Last Strongholds, Wash. Post, Nov. 16, 2001, at Al .

99 See Rohde, David, Executions of P. O. W.‘s Cast Doubts on Alliance, N.Y. Times, Nov. 13, 2001, at Bl ; Burns, John F., P. O. W.‘s Were Shot; Question Is How Many? N.Y. Times, Nov. 14, 2001, at B3 ; Rohde, David, Foreigners Who Fought for Taliban Shot in Head, N.Y. Times, Nov. 19, at B3 .

100 See Kifner, John & Schmitt, Eric, Al Qaeda Routed from Afghanistan, U. S. Officials Say, N.Y. Times, Dec. 17, 2001, at Al ; Moore, Molly & Glasser, Susan B., Remnants of Al Qaeda Flee Toward Pakistan, Wash. Post, Dec. 17, 2001, at Al .

101 See Sipress, Man & Lynch, Colum, Brahimi Calls for U.N. Troops in Afghanistan, Wash. Post, Nov. 14, 2001, at A23 .

102 SC Res. 1378, para. 1 (Nov. 14, 2001).

103 See Letter of the Secretary-General to the President of the Security Council, UN Doc. S/2001/1154 (2001); Erlanger, Steven, After Arm-Twisting, Afghan Factions Pick Interim Government and Leader, N.Y. Times, Dec. 6, 2001, at Bl . The Security Council unanimously endorsed the agreement. See SC Res. 1383 (Dec. 6, 2001).

104 See Sipress, Alan & Lynch, Colum, Turkey, Britain, France to Head Peacekeeping Forces, Wash. Post, Nov. 16, 2001, at A29 ; Kahn, Joseph & Flanders, Stephanie, U.S. and 21 Other Nations Vow to Spend Billions on Afghanistan, N.Y. Times, Nov. 21, 2001, at Bl .

105 SC Res. 1386 (Dec. 20, 2001).

106 See Woodward, Bob & Pincus, Walter, Investigators Identify 4 to 5 Groups Linked to Bin Laden Operating in U.S., Wash. Post, Sept. 23, 2001, at Al .

107 See Lewis, Neil A. & Johnston, David, Jubilant Calls on Sept. 11 Led to F.B.I. Arrests, N.Y. Times, Oct. 28, 2001, at Al .

108 See, e.g., Drew, Christopher & Rashbaum, William K., 2 Found with Box Cutters Sept. 12 Remain Intriguingbut Silent Suspects, N.Y. Times, Oct. 24, 2001, at Bl ; Masters, Brooke A., Man Named in Note in Hijacker’s Carls Indicted, Wash. Post, Oct. 24, 2001, at A3 ; Johnston, David & Zielbauer, Paul, 3 Held inDetroit After Aircraft Diagrams Are Found, N.Y. Times, Sept. 20, 2001, at B2 .

109 See Goldstein, Amy, A Deliberate Strategy of Disruption, Wash. Post, Nov. 4, 2001, at Al . The quotes reportedly are from a seven-page document signed by a senior FBI counterterrorism official that was used in numerous court proceedings across the United States. See also Johnston, David, Detentions May Be Aimed at Deterring Other Attacks, N.Y. Times, Oct. 14, 2001, at B3 .

110 U.S. Dep’t of Justice Press Release on Attorney General Ashcroft Provides Total Number of Federal Criminal Charges and INS Detainees (Nov. 27,2001), at <>; see Lewin, Tamar, Accusations Against 93 Vary Widely, N.Y. Times, Nov. 28, 2001, at B6 ; Wilgoren, Jodi, Swept Up in a Dragnet, Hundreds Sit in Custody and Ask, “Why ?” N.Y. Times, Nov. 25, 2001, at B5 ; Eggen, Dan, Many Held on Tenuous Ties to Sept. 11, Wash. Post, Nov. 29, 2001, at A18 .

111 See Goldstein, supranole 109.

112 Id.

113 See Glaberson, William, Legal Experts Divided on New Antiterror Policy That Scuttles Lawyer-Client Confidentiality, N.Y. Times, Nov. 13, 2001, at B7 .

114 See Finn, Peter, Germans Identify More Terror Suspects, Wash. Post, Nov. 17, 2001, at A21 .

115 See Dillon, Sam, Spanish Judge Charges 8 With Terrorism, Citing Likely Links to Al Qaeda, N.Y. Times, Nov. 19, 2001, at B5 ; Finn, Peter & Rolfe, Pamela, Calls Central to Spain’s Sept. 11 Case, Wash. Post, Nov. 21, 2001, at A17 .

116 See Drozdiak, William, 14 Held in Europe; Bin Laden Ties Alleged, Wash. Post, Nov. 27, 2001, at A5 ; Delaney, Sarah, Italy Arrests Man Believed to Have Key Ties to Al Qaeda, Wash. Post, Dec. 2, 2001, at A14 .

117 See Schneider, Howard, Yemen Attacks Tribes Linked toAl Qaeda, Wash. Post, Dec. 19, 2001, at A16 .

118 See Woodward, Bob, 50 Countries Detain 360 Suspects at CIA’s Behest, Wash. Post, Nov. 22, 2001, at Al .

119 See U.S. Dep’t of State, Most Wanted Terrorists, a(<> (visited Nov 19,2001); Risen, James & Shanker, Thorn, U.S. Broadcasting $25 Million Offer to Find bin Laden, N.Y. Times, Nov. 20, 2001, at Al . Separately, President Bush signed into law permanent authority to grant nonimmigrant “S” visas to aliens who supply critical information to U.S. law enforcement agencies on criminal or terrorist organizations. See Pub. L. No. 107–45, 115 Stat. 258 (2001).

120 See Johnston, David & Shenon, Philip, U.S. Lists Most Wanted Terrorists and Offers Reward of Millions, N.Y. Times, Oct. 11, 2001, at B3 .

121 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107–56, 115 Stat. 272 (2001).

122 Id. §203.

123 The court exists pursuant to the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. §§1801–1811 (1994). In 2000, the U.S. government made 1,005 applications under FISA for electronic surveillance and physical search warrants. The FISA court approved all of the applications. See Lewis, Neil A. & Johnston, David, Jubilant Calls on Sept. 11 Led to F.B.I. Arrests, N.Y. Times, Oct. 28, 2001, at Al .

124 USA PATRIOT Act, supra note 121, §206.

125 Id. §218.

126 Id. §210.

127 Id. §§219–220.

128 Id. §224.

129 Id. §412.

130 Id. §§802–817.

131 Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001).

132 Id. §7 (b)(2). The language of the order (“shall not be privileged”) suggests an intent to prevent any federal habeas corpus proceedings. If so intended, some legal scholars have doubted the constitutionality of the provision, at least with respect to persons detained in the United States. Under the U.S. Constitution, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. CONST. Art. I, §9. Since it is located in Article I of the Constitution, the power to suspend the writ is considered a power of the Congress, and in any event may be exercised only upon “rebellion” or “invasion.” See Ex parte Merryman, 17 F.Cas. 144, 148 (C.C.D. Md. 1861) (No. 9,487). Further, while the President arguably retains certain core powers to address exigent circumstances when Congress cannot convene, Congress had already addressed the process for detaining individuals suspected of terrorism as a part of the USA PATRIOT Act, supra note 121, and in that context not only insisted that aliens be detained for no more than seven days without charge, but left available to them the writ of habeas corpus.

133 See Bumiller, Elisabeth & Johnston, David, Bush Sets Option of Military Trials in Terrorist Cases, N.Y. Times, Nov. 14, 2001, at Al .

134 10 U.S.C. §§801–946 (1994).

135 See Ex parte Quirin, 317 U.S. 1 (1942).

136 See Reid, T. R., Europeans Reluctant to Send Terror Suspects to U.S., Wash. Post, Nov. 29, 2001, at A23 .

137 See Eggen, Dan & Masters, Brooke A., U.S. Indicts Suspect in Sept. 11 Attacks, Wash. Post, Dec. 12, 2001, at Al ; O’Harrow, Robert Jr., Moussaoui Ordered to Stand Trial in Alexandria, Wash. Post, Dec. 14, 2001, at A15 .

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American Journal of International Law
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