LESSONS ENCOUNTERED

Rostow and Rishikof
if all the parties agree, entitles one party to treat it as suspended or terminated.
46 Resolution 1441 provided that unanimous agreement. On the other hand,
some have argued that the Security Council should have made that judgment,
not individual states acting on the basis of the view that the 1991 authorization
has continued in force because the Security Council had never rescinded it. 47
A principal U.S. legal theory made much of this UN Security Council
finding of material breach. In 1990, the Council had authorized the use of
force against Iraq to uphold and implement its resolutions responding to Iraq’s
August 1, 1990, invasion of Kuwait. 48 After the 1991 Gulf War, Resolution 687
set conditions that Iraq had to meet for the authorization to use force no longer
to be in effect. 49 Those conditions not having been met, the United States
and the United Kingdom (and the Legal Counsel to the United Nations in the
1990s) understood the 1990 authorization to remain in effect in 2002.
Detention
U.S. detention policy and practice after the attacks of September 11, 2001, have
involved two unrelated but important elements. The first concerns domestic
detention. The second involved detention of those captured in or near theaters
of military operations against al Qaeda and its supporters and those suspected
of terrorist connections or activities and residing or transiting foreign countries.
Though the two kinds of detention raise different legal issues, U.S. conduct
in each of these areas suggests several lessons to be learned.
Domestic Detention
In the immediate aftermath of the September 11 attacks, the United States
relied on broad interpretations of statutes in order to detain aliens and U.S.
citizens. These statutes were written in a different era and context. As then–Assistant
Attorney General Michael Chertoff stated in 2001:
In past terrorist investigations, you usually had a defined event and
you’re investigating it after the fact. That’s not what we had here. . . .
From the start, there was every reason to believe that there is more to
come. . . . So we thought that we were getting information to prevent
more attacks, which was even more important than trying any case that
came out of the attacks. 50
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