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Abstract

Since 9/11, America has been engaged in the so-called War on Terror. While some in academia debate whether the conflict against al- Qaeda and associated groups is in fact a “war,” the fact remains that the United States has been and continues to be actively involved in combat or combat-like activities around the world aimed at stopping or minimizing the ability of terrorists to attack the United States or its allies. In many, if not most, instances of the United States’ application of combat power, civilians are present and actively involved in the process. At the same time, the United States continues to grapple with the question of the legal status of our enemy and the legal justification for our use of force, including questions about who applies the force, where, and under what circumstances. A full analysis of the legal bases for the use of force in the War on Terror is beyond the scope of this Article. Instead, this Article will describe the modern usage of civilians by the United States in its prosecution of the War on Terror and will seek to analyze the actors’ status in terms of the Law of Armed Conflict (LOAC), including the implications for U.S. policy regarding the targeting and capture and trial of members and supporters of al-Qaeda. Part II will describe the modern trend of using civilians to employ armed force, including the use of CIA operatives to employ UAV-launched missiles to engage terrorists. Part III will discuss and apply the various legal principles found in the LOAC to the facts as described. Part IV will then analyze and discuss the implications of U.S. policy and action and will describe various alternative proposals that may help clarify the legal issues at stake. By using civilians not only to support combat troops on the battlefield, but also to directly engage the enemy by way of covert activities, such as drone strikes, the United States runs the risk of weakening the firm LOAC barrier between combatant and civilian that seeks to protect civilians from harm. Such use of civilians also runs the risk of undermining the United States’ credibility when characterizing the illegality of the actions of our terrorist enemy. This Article will seek to address two key aspects of this problem: first, whether the use of civilians by the United States violates the LOAC, and second, whether such use undermines the legal theory upon which the United States bases its targeting and prosecution of al-Qaeda and associated terrorists. This Article will conclude that U.S. civilian actions are not per se LOAC violations (“war crimes”), but will further conclude that, based on the types of activities undertaken by civilians, and based on the current Military Commissions Act (MCA)-based prosecutions of terrorists, the use of some U.S. civilians on or in support of the battlefield undermines the U.S. position vis-` a-vis terrorists.

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