Sunday, February 19, 2006

Is terror a military or a criminal problem?

Is terror a military or a criminal problem?

Therein lies the conundrum at the heart of the ongoing debate over how best to fight terror while protecting civil liberties.

Terror, at base, is a criminal offense. It is nothing more than a crime with political motivation. Terrorists represent no country, have no fixed geographical boundaries. They are a collection of individuals bound only by their beliefs. The metaphorical "war" on terror is just that -- a metaphor, like the "war" on drugs or poverty.

But the military has a role, too. First and simplest is when a terror group receives state support, as in Afghanistan; then fighting terror shades over into conventional war until such time as the state support ceases. If terrorists resort to a guerrilla war, that too is a military responsibility -- although with limitations peculiar to antiinsurgent operations. The rest of what I would call the "hard" side of fighting terror -- Striking known terrorist training sites, killing terrorist leaders and the like -- also are more properly a military task than a police task.

But this leads to confusion about what, if any, rules apply. There are laws that govern warfare and there are laws that govern crime and they are very different, both in what they allow and in their scope and purpose.

Laws that govern crime are geared toward the long term -- minimizing, catching and deterring criminals instead of trying to eliminate them. They assume that the problem will be with us always, and come up with ways to keep it under control while still respecting the rights that are important to a free society. Call it a "chronic condition" approach.

Laws that govern warfare envision certain fixed and rigid limitations -- that there is a front line, that there is a conflict between nations wielding uniformed armies, that there will be an easily defined point of victory. War is a temporary national emergency, with a clearly defined battlefield within which rights do not exist: laws of war spring from agreements between nations, not the text of the Constitution. Call it an "emergency surgery" approach.

The problem with the assumptions behind "emergency surgery" is that none of them are true when it comes to fighting terror. There is no front line, no nation, no uniformed armies, no easily recognized victory, no clearly defined battlefield, and the conflict is expected to last a very long time.

Precisely because it is ill-fitted to the task, there are tremendous dangers in treating terrorism entirely as a military concern:

• Erosion of civil liberties;
• Incarcerating minor "combatants" for years or even decades regardless of the severity of their actions;
• A heavy cost in lives and treasure;
• Erosion of popular support at home and creation of more enemies abroad;
• An overreliance on force that, in the long-term, will be less effective than legal, diplomatic and intelligence efforts.

Criminal law, then, is better suited to the problem that terrorism poses. Accepting that, the question becomes how to define the respective roles of the military and law enforcement.

I'll go through them from easiest to hardest.

1. In a clear civilian situation, such as breaking up a terror cell in Chicago, law enforcement rules apply. That means warrants, probable cause and due process.

2. In a clear battlefield situation, such as someone captured during a firefight, military rules apply. However, prisoners captured in such cases must be dealt with in specific ways (see below).

3. U.S. citizens deserve due process and access to the courts in nearly all cases.

4. Civilians caught in the middle of an insurgency, a la Iraq, should be accorded as many rights as possible. They can be detained by the military for short periods for security reasons, but within a reasonable time (a week, say) must either be charged as an "enemy combatant", turned over to civilian police for nonmilitary charges, or released.

5. Anyone defined as an "enemy combatant" should have the right to challenge that designation. Most such cases would be a slam dunk ("suspect was caught during a firefight"), but they should get a hearing. This is not "normal" wartime practice, but this is not a normal "war".

6. "Enemy combatants" can only be held until the end of the specific war they were involved in. To be held longer, they must be charged and convicted of actual crimes. Insurgents captured in Iraq, for example, must be released when the fighting in Iraq ends unless they can be linked directly to terrorism.

7. Because some insurgencies may last a very long time, we should make an effort to categorize insurgents by the threat they pose. The truly dangerous would be locked up until the insurgency ends; minor players would be released after serving shorter sentences. That way you're not locking up a halfhearted foot soldier for decades. Like with any offense, recapture would result in a much harsher sentence.

8. In areas where we are not in charge, we will strive to work with the ruling government. But if the rule of law is weak or nonexistent -- Think Yemen, for example -- or the ruler is not a reliable foe of terror, we reserve the right to kill or capture proven terrorists whenever we can. This is less a military/civilian issue than a diplomatic one; I include it here for completeness.

There are a few specific steps we should take to make this happen:

1. Congress should make clear that we are not in a war in a conventional sense, so the President cannot claim extraordinary inherent authority. If they wish to grant him specific authority in specific places, they can do that, giving him broad powers to operate in Iraq or other places abroad. But we should not fall into the "war" trap a second time.

2. Congress should clearly state law enforcement's pre-eminence, and outline which laws apply in which situations.

3. We should clarify the warrant rules to ensure that showing a reasonable suspicion of terror links will allow eavesdropping -- but that such a link *must* be shown.

4. We should stop trying to keep certain prisons or prisoners outside of any law, be it U.S., international or the Geneva Conventions. All prisons and all prisoners should be protected by one of those sets of law.

5. We should allow open inspections of our prisons by accredited organizations such as the Red Cross.

6. We should ensure adequate funding for antiterrorism investigations, and if necessary create specific terror-related charges that guarantee lengthy prison terms for true terrorists -- whether their planned attack is successful or not.

Saying terrorism is primarily a law-enforcement issue is not "going soft" on terror -- it is recognizing that the nature of terrorism is more effectively addressed by criminal law than military law. A vigorous enforcement effort -- backed by a limited but vigorous military role -- will defeat terrorism more surely, and at less cost in both money and civil liberties, than if we allow the "war" metaphor to rule our thoughts and actions.

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Anonymous Matt Parker said...

You have summed up the problem rather well, but without defining really how we got here:

The Bush administration has used the "war" designation to take broad executive privilege (such as warrant-less wiretapping) that seems to indicate an attitude that they need not follow any laws. Technically that could be argued, if indeed the US is in a state of “war”. They know they are getting away with something – you can see it in their actions and attitudes:
1. When called on it, they tell Congress, “You gave us this ability when *you* declared war on terror. Why are you complaining about how we use it?”
2. They don’t tell anyone when, or how they use it, and they push they envelope of the ability almost to the breaking point.
3. When caught they take the tactic of deny, obfuscate, classify.

Next, there *is* a designation that is being used that is between “criminal” and “war”. It is “in armed combat with”. We are not at war in Iraq, we are “in armed combat” with the insurgents. We are at war with terrorism, but only “in armed combat” with Al Qaeda, and other terrorist groups (and not all terrorist groups at that). But unlike you, they haven’t defined the role of this third designation. It is merely a phrase that can be used when “war” is too strong, and “criminal” is too weak. It’s a phrase used to justify whatever tactics, rights, and abilities the administration wants. See the point above – it’s used to protect the executive privilege to ignore any law.

Finally there is the lack of political will. Congress and others will attack the idea that there is executive privilege that reaches that far, but they won’t attack the idea that this is anything less than a war. To do so would be to seem “weak on terror” – and to be “weak on terror” means you support it, right? So that leaves merely questioning the President’s right or ability to act above the law. That seems pretty straight forward, until those actions are in support of the “war on terror” or in support of “our troops on the ground”. Then it becomes unclear how to proceed without being “weak on terror”. Most politicians don’t have the stomach to risk it.

Overall you have to admire the strategy. By declaring war on terror, the administration has put us in a permanent state of “war”. This gives the government powers that it could never have in peace time. And because this war cannot be won (like your “war on crime” example), they never have to give those powers back. But – they can take on more and more.

Personally I’m worried. I don’t believe that the government in general is interested in a war on terror – there are too many better ways to proceed. I do believe they are interested in expanding the powers they have over us and the world, and the war on terror is the best excuse they’ve ever had.


2/23/2006 9:12 AM  
Blogger Sean Aqui said...

Thanks for the comment. Not only is it thoughtful, it's the first one I've gotten since setting up the site a week ago. Congratulations! Your prize is in the mail.... ;)

I think the administration generally buys its own spin. I think it really *is* trying to fight a "war" on terror, even if that means a few constitutional shortcuts.

Where they get mendacious is when they use it as a political hammer.

And it doesn't matter anyway. Even if their motives are pure, that's no excuse for ignoring the law or trying endruns around civil liberties.

But in the end I think the winning argument is a practical one. Besides causing all sorts of ethical and constitutional problems, viewing terror as a purely military problem is ultimately self-defeating. The rest is important, but really just icing on the cake.

2/23/2006 1:47 PM  
Anonymous Matt Parker said...

I think you might be giving them too much credit.

The first thing we did for the "war on terror" was invade Afghanistan to remove their government. The second thing we did was to invade Iraq to remove their government. We have taken no action - overt, covert, direct, or indirect, against any "terrorist organization".

So - since there are many ways to wage a war on terror and we have done none of them - what are we doing?

I appreciate you giving them credit for thinking they are fighting a "war" on terror, but if that's the case they really are as stupid as they want us to believe. There are other things they have done to prove they aren't stupid. So I'm left believing they are consolidating a centralized executive-branch power structure.

But I also tend to love conspiracy theories. :)


PS: I'll collect my prize next time I see you.

2/23/2006 3:10 PM  

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