Terrorists Are Criminals

This op-ed came out a couple of days ago, but I find the argument from Wesley Clark and Kal Raustiala that terrorists are criminals, not soldiers and deserve to be treated as such has a great deal of merit. There was this fad, post-9/11, for deciding that treating terrorism as a "miltiary" rather than a "law enforcement" problem would constitute getting serious about it, but that's mostly proven to be a huge fiasco.

Now, of course, the "law enforcement" problem of Osama bin Laden ran into the snag that he was located in a country whose de facto government was protecting him and encouraging his activities. That -- Taliban control of Afghanistan -- was properly defined as a military issue, but it's been a huge mistake to take the view that, in general, we're in a "war" with what amounts to an unusually bloodthirsty but only medium-sized criminal syndicate.

Comments

Terrorists are equivalent to pirates, and should be treated like pirates. They are subnational groups of men that are sometimes used by governments to attack governments, but can also be freelancing. Sometimes, governments knuckle under to them, just like pirates.

Posted by stm177 | August 10, 2007 4:35 PM

Sure, if a terrorist is captured here by you know, police. But I don't see how it makes sense to treat people captured on an actual battlefield as criminals. For one, most of them haven't done anything a court could recognize as a crime. Shooting at our soldiers on a foreign battlefield is not a crime, and it is would be against the norms of international law to make it a crime against the United States. The proper thing to do with battlefield captures is to treat them as POWs, which involves holding them until the war is over.

As a general rule of thumb, if it's a foreign battlefield and a capture by our military, they should be POWs. If they are caught in the West by police, they should be treated as criminals.

Posted by Adam Herman | August 10, 2007 4:36 PM

Specifically, they are rapists: they rape freedom, and Lady Liberty cries.

Posted by Bill O'Hannity Coultergeist | August 10, 2007 4:36 PM

The first poster made a good point. What if the terrorist in question is merely an ununiformed soldier of a nation state? Many nation states have considered it convenient to use terrorists as substitutes for soldiers, seeing as how using actual soldiers is pretty much useless against the West considering the disparity in power.

If that is the case, then the nation state has committed an act of war, and the person in question is a POW, or alternatively, an agent of an enemy nation.

Posted by Adam Herman | August 10, 2007 4:39 PM

Most cogent part of the argument--well, one anyway--is that you vastly elevate the status of these monsters by treating them as enemy. You make recruiting easier for them and you inflate their self-importance. This runs counter to decades of pretty consistent thought about how to treat this problem, which is not new.

That the current admin insists on treating this as a "war" and thus the enemies as combatants has caused all kinds of problems ("How oh how do we extricate ourselves from Gitmo?" they're starting to howl). The other effect it has, of course, is to put the country on a permanent war footing in which civil liberties must be (equally permanently) curtailed and the power of the Executive is vastly inflated. Obviously from the Bushist point of view, that's not a bug, it's a feature.

Posted by DrBB | August 10, 2007 4:39 PM

I think you (and Clark) mean "alleged" criminals. After all, questions of criminal guilty are determined by juries in our system.

And they are determined only after a crime has been committed. Criminal justice, in our system, is backward-looking. The determination of guilt or innocence and the imposition of a penalty necessarily sends a signal to prospective criminals that there is a price to be paid for some violations of law, but the linkage is indirect, to say the least.

We have, in our criminal justice system, under the US constitution, limits on the criminalization on membership and advocacy.

Our criminal justice system could certainly be revised to allow convictions under circumstances that would not now support convictions, and it is certainly possible to imagine a criminal justice system that is focused not on retribution but on deterrence.

In my view, a criminal justice approach risks being either entirely ineffective, because it is backward looking and because of the limits on prosecution for mere membership and advocacy, or effective only because the criminal justice system has been revised in a manner which is inconsistent with the "values for which we are fighting."

(BTW, what is the odd bit about terrorists as "modern day pirates"? I know Clark isn't a Marine, but surely he's familiar with the "shores of Tripoli".)

Posted by Thomas | August 10, 2007 4:50 PM

What if the terrorist in question is merely an ununiformed soldier of a nation state?

Then they aren't terrorists. I don't understand what the motivation is behind adopting this wildly expansive definition of terrorist. Surely, the agents of a country's government, no matter how bad they are, can't be considered terrorists by any honest definition of the term.

Posted by Freddie | August 10, 2007 4:51 PM

In 1993 Mir Aimal Kansi killed two people in the street outside CIA headquarters with an AK-47, then fled to the Afghanistan/Pakistan border region. The FBI captured him in central Pakistan on June 15, 1997, and he was executed on November 14, 2002.

Osama bin Laden is responsible for the deaths of 2,974 Americans on September 11, 2001, and is still on the loose nearly six years later, hiding in the same area.

If we could track down someone who killed two Americans, why does bin Laden get a pass for killing almost three thousand?

Posted by croatoan | August 10, 2007 4:52 PM

But I don't see how it makes sense to treat people captured on an actual battlefield as criminals.
--recognizing of course that a lot of the people held in Gitmo were not captured on the battlefield but were instead turned in, for money, by neighbors and anypotential grudge holders around. Not the most reliable way to tell who the real terrorists are

And there are other consequences of the militarization approach. This part of the piece was a new argument to me:

Labeling terrorists as combatants also leads to this paradox: while the deliberate killing of civilians is never permitted in war, it is legal to target a military installation or asset. Thus the attack by Al Qaeda on the destroyer Cole in Yemen in 2000 would be allowed, as well as attacks on command and control centers like the Pentagon.

They also suggest that "piracy" is a useful model, as someone suggested above. Pirates have often been seized under military-style conflict (not always at sea) and brought to justice.

I just think that the more you hysterically scream "The world changed! We have to do things completely differently than ever before! No threat was ever this scary and horrible!" the more you are doing the terrorists' work for them. "The purpose of terrorism is to create terror," as Lenin succinctly put it. The more you can maintain normalcy and treat the problem within existing legal structures, the less effective the tactic becomes. We've been doing it exactly backwards.

Posted by DrBB | August 10, 2007 4:54 PM

Dear Adam Herman-

Before you make any more comments on this thread, please educate yourself as to the difference between a "terrorist," a "detainee," and an "insurgent." So far you're treating the three as interchangeable, and it's making you look stupid.

Posted by James Gary | August 10, 2007 4:56 PM

All three are equally dark and therefore equally guilty in the Lord Jesus' blue, blue eyes.

Posted by Gregorio | August 10, 2007 5:06 PM

If we could track down someone who killed two Americans, why does bin Laden get a pass for killing almost three thousand?

Forgive me if I'm misunderstanding you, but are you seriously suggesting that this is what MY or any of the commenters is suggesting? That treating terrorists as criminals means that Osama gets a pass?

Posted by Freddie | August 10, 2007 5:06 PM

The "New Jesus" always has to have a monster to slay.

Posted by magisterluti | August 10, 2007 5:10 PM

We have, in our criminal justice system, under the US constitution, limits on the criminalization on membership and advocacy.

Huh? In our system, conspiracy is a crime.

Posted by UN Plaza | August 10, 2007 5:30 PM

"Piracy" is more than a label. It is a body of international law, convention, and usuage that is somewhat archaic but closely related to other law, like the Geneva Conventions and, for that matter, the US constitution which grew out of largely maritime warfare.

One of the interesting aspects of admiralty law is that it can be "pushed down" to individual ship masters and port captains to enforce in ways that are expedient, reputable, and accountable.

We make a huge mistake by lumping all sorts of people together, making them extraordinarily important, using them as political props, undermining low-level responsibility, and avoiding high-level accountability.

Fourth generation warfare is probably a historical novelty. But, most mundane aspects of it are not new, and their is some received wisdom for dealing with it. But, the -- dare I say crass -- political opportunism of Crassus/Cheney or the sheer cynicism and hypocrisy of Ferdinand/Bush II are not.

Posted by JRBehrman | August 10, 2007 5:39 PM

Uh, is there some reason why this has to be put in an either-or framework? Can't our response be mixed, depending on what's involved? And, haven't MattY and the General missed yet a third component: hearts and minds? If, for instance, the terrorists were demoralized and deprived of support, wouldn't that go a very long way towards minimizing any damage they could do?

Posted by TLB | August 10, 2007 5:45 PM

The proper thing to do with battlefield captures is to treat them as POWs, which involves holding them until the war is over.

We all understand that the present conflict doesn't fit perfectly into the neat little labels we have for traditional conflicts, like WWII.

The lazy man's response to this problem is to repeat some truism, like what I've quoted above, and not deal with the fact that their system makes no sense within the context of the present struggle.

What does it mean to hold someone "until the war is over"? No one believes that there is going to be a peace treaty someday which will enable us to let violent jihadists loose on the streets, secure in the knowledge that they have given up the fight.

If your answer is "fine, then we should hold them forever," then good for you - but you should be honest about something like that, and not try to dodge the issue by saying "hold them until the war is over," when you know full well that the war will never be "over" in that sense.

And if we're going to hold people forever, or execute them for that matter, it seems to me that somewhere along the line, there ought to be some sort of procedure sufficient to adjudicate their guilt. It certainly doesn't have to be a full-blown criminal court trial with all the trappings, but it ought to be something sufficient to let other nations see that we uphold the rule of law and aren't merely executing random people picked up on the streets of Afghanistan.

Posted by Steve | August 10, 2007 5:59 PM

"the limits on prosecution for mere membership and advocacy" are quite broad. Every member of a conspiracy is guilty of all the acts committed by the conspiracy, and of the seperate crime of conspiracy as well

Posted by rea | August 10, 2007 6:26 PM

Piracy article at wikipedia

International law

Piracy is of note in international law as it is commonly held to represent the earliest invocation of the concept of universal jurisdiction. The crime of piracy is considered a breach of jus cogens, a conventional peremptory international norm that states must uphold. Those committing thefts on the high seas, inhibiting trade, and endangering maritime communication are considered by sovereign states to be hostis humani generis (enemies of humanity).[citation needed]

In English admiralty law, piracy was defined as petit treason during the medieval period, and offenders were accordingly liable to be drawn and quartered on conviction. Piracy was redefined as a felony during the reign of Henry VIII. In either case, piracy cases were cognizable in the courts of the Lord High Admiral. English admiralty vice-admiralty judges emphasized that "neither Faith nor Oath is to be kept" with pirates; i.e. contracts with pirates and oaths sworn to them were not legally binding. Pirates were legally subject to summary execution by their captors if captured in battle. In practice, instances of summary justice and annulment of oaths and contracts involving pirates do not appear to have been common.

Since piracy often takes place outside the territorial waters of any state, the prosecution of pirates by sovereign states represents a complex legal situation. The prosecution of pirates on the high seas contravenes the conventional freedom of the high seas. However, because of universal jurisdiction, action can be taken against pirates without objection from the flag state of the pirate vessel. This represents an exception to the principle extra territorium jus dicenti impune non paretur (the judgment of one who is exceeding his territorial jurisdiction may be disobeyed with impunity).[15]

There is substantial overlap between piracy and terrorism. It's not like the international community has to invent some new body of law like "illegal combatants".

Posted by stm177 | August 10, 2007 7:44 PM

The first three paragraphs from the above reply is from the wikipedia article. I meant to italicize all three, but I failed.

Posted by stm177 | August 10, 2007 7:46 PM

Steve, whether or not a war is likely to end anytime soon, or ever, is not relevant. If you capture a combatant and make him a prisoner, you have the legal right to hold him until the war ends. If it never ends, that's not the captor's problem.

Secondly, to the other ones sniping at me, where did I ever say that all the Gitmo detainees were combatants? I only said that if you capture someone on a battlefield, that you have the right to hold them as long as hostilities last. Period. That's international law and has been so well, forever.

I think you all know that, and don't like it, but need a tangent to attack the concept on.

Besides, if we want to diminish their status, there are other ways to do that. A propaganda campaign making fun of their incompetence and general patheticness and lack of manhood would be a great idea. It would make Americans less fearful and possibly make them the butt of jokes back home.

Posted by Adam Herman | August 10, 2007 7:58 PM

Here's what I find most irritating about the whole debate. The question of what to do with an alleged terrorist or ununiformed soldier who has been captured on the battlefield (wherever that battlefield may be) not only misses the point that they are then a soldier, but the fact that there is a battlefield in the first place only arises from the type of misguided response that has so often been employed. Invasion doesn't work because it turns would-be terrorists into actual soldiers, elevating, as DrBB said, their status rather undeservedly and doing a great deal of work for the terrorists.

Posted by David | August 10, 2007 8:58 PM

The war against Afghanistan's de facto government is long over. Five Afghan guests of the US at Gitmo were returned this week, and more will dribble out.

The more important question has to do with people who were not captured on any battlefield. KSM, for example, was famously arrested in an apartment in Pakistan. Sleeping, it seems from the photographs. This is what the debate should be about, not Taliban privates (the holding of whm beyond 2003 may well be criminal).

Posted by charleycarp | August 10, 2007 9:14 PM

The war against Afghanistan's de facto government is long over. Five Afghan guests of the US at Gitmo were returned this week, and more will dribble out.

The more important question has to do with people who were not captured on any battlefield. KSM, for example, was famously arrested in an apartment in Pakistan. Sleeping, it seems from the photographs. This is what the debate should be about, not Taliban privates (the holding of whm beyond 2003 may well be criminal).

Posted by charleycarp | August 10, 2007 9:14 PM

In my view, a criminal justice approach risks being either entirely ineffective, because it is backward looking and because of the limits on prosecution for mere membership and advocacy, or effective only because the criminal justice system has been revised in a manner which is inconsistent with the "values for which we are fighting."

Good post by Thomas.

I would add that radical Islamists don't consider themselves criminals, don't even believe they fall under any law but Sharia. Indeed, many of the actions we under our laws call criminal they call a sure path to Paradise. They believe they are not bound by Hague or Geneva constraints all nations now accept when conducting warfare. They kill and maim not out of impulse or for material gain - the two main categories of criminals.

Certainly we do not characterize the bravest on our side that serve as spies, secret agents, saboteurs as "criminals". They get statues built to them. OSS agents that parachuted into France as saboteurs and assassins are applauded at large ceremonies in the USA and France. And when caught and dispatched, like Nathan Hale and Mata Hari, they are dispatched with honor as courageous people that gambled for their nation or cause - and lost. Many terrorists later become considered "wise and noble leaders" like Nelson Mandela. Their actions thought of not as "crimes of youthful misjudgment" but valorous feats.

The problem Thomas alluded to of limits on prosecution for scope and advocacy protects citizens, from all being locked up as arsonists as SDS members when a ROTC building was burned by some SDS members, and of course abortion protestors from being dragged in "in toto" when a clinic was bombed. Good if you wish to protect people in a common cause who "lacked specific knowledge" of violence - bad when you have Jihad cells set up of scouts, dryrunners. procurerers of deadly material - that have no idea what their efforts will be used for in the end. Compartmentalisation would shield most terrorists from criminal prosecution unless you wish to add a whole panopoly of new civilian laws against buying more than one gallon of bleach at a time, not videotaping any bridge, dam, government building, or iconic symbol of America - applicable to all..

Also, most countries reject US conspiracy statutes. They are not part of other countries laws, and many other significant disparities in criminal law exist that do not with military laws and conventions - making "international criminal law enforcement" as the means of dealing with Jihadis who respect no "infidel law or border" even more problematic.

And, recognize that American criminal conspiracy statutes are far weaker than military measures against unlawful enemy combatants out to commit mass mayhem and help defeat us. Imagine if by some miracle, we had discovered the 19 hijackers and taken them into custody, twarting 9/11. We would have learned that 4 knew and planned to murder up to 50,000 Americans, kill our whole Congress, destroy the Capital, and stop the Pentagon from functioning. And found out the 15 Saudis "the muscle" where limited in knowledge by KSM to that they were to help hijack planes to free Palestinian and Saudi prisoners.

By our laws, the 15 Saudis would have only gotten 5-10 on hijack conspiracy. All would likely now be free and home in Saudi Arabia ululating at Mosques and celebrated by millions as brave warriors who tried to smite the Great Satan. Mohammed Atta and the other three would still be in jail, but already complaining with Euro activists that they were being punished for a hijacking that never took place and suing that they were being "discriminated against as Muslims without Saudi clout" when they didn't get to go home with the 15 Saudis.

Posted by Chris Ford | August 10, 2007 9:24 PM

Once again, massive confusion exists because the underlying premises of all of it are incorrect.

What's the difference, to start with, between a "native terrorist" and a "foreign terrorist"?

As in: what's the difference between a "native murderer" and a "foreign murderer"?

Murder is murder. Crime is crime. The issues over where and when the criminal is apprehended, held and adjudicated are matters of treaty between states. And since states are in essence "organized crime", this is little more than deals between gangs.

"Terrorism" is a political label. It is intended to characterize a "crime" as a "political (or perhaps religious) act".

Other than that, there is literally no distinction between a "terrorist" and a "criminal". The same applies to "pirates". The only problem with pirates is that their acts are committed in a realm supposedly outside the jurisdiction of states. So the states solved that by saving they ALL had jurisdiction - because the real problem with pirates is that they were anarchists. And that last is not said lightly - look it up. Some of the most anarchic and free mini-societies in the past were set up by persons considered "pirates" by states.

As for whether you need a military or law enforcement solution, the distinction is mostly moot. Law enforcement in any major US city can lay down enough firepower - including armored vehicles - to quality as a battalion-level military unit. if that fails, you have the National Guard.

If you're talking about a "foreign" terrorist, then again, by definition, you're talking about jurisdiction, which pretty well excludes law enforcement functions - especially where the foreign state either does not have effective law enforcement, or where the foreign state has a "militarized" form of law enforcement (remember all those police officers in foreign countries walking around with assault rifles instead of 9mm pistols like ours?) or where the state is not cooperating with law enforcement in other states.

In those situations, you respond with either intelligence units - overt or covert depending on your states relations with the foreign state - or special operations military units ditto.

You don't INVADE somebody when you don't need to. And you damn sure don't OCCUPY a country just to get rid of some terrorists.

Afghanistan did NOT need to be INVADED to damage Al Qaeda or capture bin Laden. That was the EXCUSE when the real reason lay in things like oil pipelines and re-opening the heroin trade.

The Taliban may have been a pathetic regime, but they were not entirely supporting Al Qaeda. What they didn't want to do was jeopardize their own credibility by handing over bin Laden to the US absent any clear evidence from the US that bin Laden was responsible for 9/11. And I remind you - such proof did not exist at the time. Some people think it doesn't exist even now. Whether you agree with that or not is not relevant. The Taliban were not going to give up an influential individual like bin Laden without evidence.

Bush used that as an excuse to drum up American jingoism by invading Afghanistan - and just incidently to work for a pipeline while the CIA "assets" are undoubtedly getting rich off the heroin trade yet again, as they did during Vietnam.

Get a clue. The invasion of Afghanistan was a major mistake, only exceeded by the invasion of Iraq - and soon to be massively exceeded by the invasion of Iran.

And that latter invasion will be justified by the SAME nonsense concerning what has to be done about "terrorism and the states that support it."

As for bin Laden "getting a pass", well, I've already explained that one in a previous post. Nobody wants bin Laden found except his victims. It's that simple.

You want him found? Pay me.

Posted by Richard Steven Hack | August 10, 2007 9:26 PM

You want him found? Pay me

You know there's a $25 million reward for his capture, right?

Posted by Freddie | August 10, 2007 9:31 PM

if you capture someone on a battlefield, that you have the right to hold them as long as hostilities last...

The problem with framing the struggle against violent extremism as a "war" is that in that context, a "battlefield" can be anywhere and anyone can be an "enemy combatant," stripped of their civil rights and subject to indefinite detention without any kind of trial.

So the question, Adam Herman, is: is this OK with you, or do you think there should be some limits on the government's ability to detain people? If so, what should those limits be?

Posted by James Gary | August 10, 2007 9:34 PM

A battlefield= any foreign place where soldiers, rather than police, do the capturing.

It's not really as complicated as you all make it out to be. No reasonable person supports the administration having the power to just declare anyone on American soil a terrorist and detain them.

And while we're talking about what elevates Al Qaeda, giving them a public platform like a trial to spout off enhances their status as well. Just look at Saddam and Milosevic. They weren't diminished by trial, their reputations were enhanced. Every time they ranted about the authority of the court or yelled about something entirely unrelated to their own guilt or innocence, there were useful idiots to cheer them on.

If we truly care about diminishing their standing, having them disappear into a black hole is the best thing. KSM and Zubaydah aren't legends or martyrs, but put them on trial and watch their legend be reborn.

Not saying we shouldn't put them on trial, just mentioning that Clark's argument and Matt's doesn't really accomplish what they think it accomplishes.

Posted by Adam Herman | August 10, 2007 10:12 PM

Freddie:

$25 million isn't enough. And didn't they raise that to $50 million recently?

I need the money in advance to pay for the operation. I don't have the kind of money needed to pull this off. And I expect a juicy profit, or why bother?

The US has spent billions on Afghanistan (don't even include Iraq, which was irrelevant to OBL). Capturing OBL and damaging Al Qaeda could have been done for less than a billion (even with the usual government cost overruns - which I won't be subject to.)

I might be negotiated down by some percentage, but mostly any weaseling about the price just illustrates the fact that money comes before justice with everybody.

You either want bin laden or you don't. If the US is willing to spend billions invading Afghanistan, what's the problem with a billion for actual success in capturing OBL?

Maybe I'll hold a "9/11 Special" on 9/11 - just pay me $500 million and I'll get him.

Posted by Richard Steven Hack | August 10, 2007 10:35 PM

Secondly, to the other ones sniping at me, where did I ever say that all the Gitmo detainees were combatants?

I believe the point was that a lot of 'em weren't "captured on the battlefield"; they were turned in by neighbors for money.

Besides, if we want to diminish their status, there are other ways to do that. A propaganda campaign making fun of their incompetence and general patheticness and lack of manhood would be a great idea.

And a pony. "Great idea." Dear gott in himmel. The wingnut (wasn't considering you one of those until this fantastically idiotic utterance) reaches for the propaganda wand. Handiest tool in the box. Oh yeah, propaganda, that's what we need more of. Except, you know, really effective propaganda. 'N' stuff.

Do you mind if I ask, how old are you actually?

Posted by DrBB | August 10, 2007 10:43 PM

No reasonable person supports the administration having the power to just declare anyone on American soil a terrorist and detain them.

Dear god. Um, Adam? Old sock? Is Jose Padilla a name to you? Because there are a lot of "reasonable" people who think his situation is just fine. Under the same set of doctrines you seem so fond of.

Posted by DrBB | August 10, 2007 10:48 PM

How are the doctrines I spoke of relating to Padilla? He wasn't captured on a battlefield. Are you reading what I actually write, or just falling back on your talking points?

"And a pony. "Great idea." Dear gott in himmel. The wingnut (wasn't considering you one of those until this fantastically idiotic utterance) reaches for the propaganda wand. Handiest tool in the box. Oh yeah, propaganda, that's what we need more of. Except, you know, really effective propaganda. 'N' stuff."

Well, wasn't the whole point of the Clark op-ed discussing how to diminish them? Putting them on trial doesn't do it, and Clark, having been involved in the Milosvic trial, should know better.

Also, if you think that we shouldn't use propaganda, then you are apparently about 15 and never picked up a history book. This idea that we should refrain from demonizing foreign enemies(but of course demonizing domestic enemies in partisan debate is fine), is rather new and mainly something thought up by young bloggers and commenters who don't know how a war is fought on the home front.

If only you guys would apply the wiliness and ruthlessness you demonstrate in defeating Republicans to Al Qaeda.

Posted by Adam Herman | August 10, 2007 11:01 PM

"wasn't considering you one of those until this fantastically idiotic utterance"

And BTW, why is it idiotic to suggest we should advertise the enemy's shortcomings? They are pathetic, they are incompetent. Rather than Bush's fearmongering, which elevates their status, why not start making fun of them? If we could make fun of Hitler we can certainly make fun of the far more pathetic figure that bin Laden is.

Posted by Adam Herman | August 10, 2007 11:04 PM

"No reasonable person supports the administration having the power to just declare anyone on American soil a terrorist and detain them."

Really? You should tell the Bush administration and its supporters this because that is precisely what that administration claims it has the power to do. Moreover, it has already taken this action, and it does so with the full support of the 28-percenters.

"And while we're talking about what elevates Al Qaeda, giving them a public platform like a trial to spout off enhances their status as well. Just look at Saddam and Milosevic. They weren't diminished by trial, their reputations were enhanced."

Even if true, and I don't agree that it is, that is the price we pay for maintaining the rule of law. To arbitrarily put people into "a black hole" without trial and without evidence goes against every principle this country was founded on. That is the tactic of a dictatorship, not the tactic of a free democracy.

In any case, we have already elevated these guys, giving them stature they could never have had without the ineptitude of the Bush administration. Had we treated them as common criminals, they wouldn't have had nearly the publicity and stature they enjoy now.

Your arguments about battlefield capture and indefinite detainment are equally specious. Either this is a conventional war, with soldiers captured on the battlefield and released when the war is over, as should have been the case in Afghanistan, or this is a criminal conspiracy, akin to the Mafia or the pirate example cited above, in which case you try them in the court of law.

Finally, you need to remember one critical detail: the large majority of people captured and held by the U.S. in this so-called "war on terror" were and are completely innocent. Were we playing by your rules, we would have condemned hundreds, if not thousands of innocent people to life in prison without hope of reprieve. And there is no credible evidence that this tactic is making us any safer than had we played by the rules. If anything, the evidence tells us that we are less safe (e.g., Abu Ghraib).

Posted by PaulB | August 10, 2007 11:16 PM

"How are the doctrines I spoke of relating to Padilla? He wasn't captured on a battlefield."

LOL... Dear heart, did you actually read the quote of yours that that statement was a response to? It's even quoted in that very post!

"Are you reading what I actually write, or just falling back on your talking points?"

ROFL.... Oh, the irony....

"Well, wasn't the whole point of the Clark op-ed discussing how to diminish them? Putting them on trial doesn't do it, and Clark, having been involved in the Milosvic trial, should know better."

Since you've presented zero evidence to back up this assertion of yours, forgive me if I don't take it too seriously.

"If only you guys would apply the wiliness and ruthlessness you demonstrate in defeating Republicans to Al Qaeda."

ROFL.... Thanks for confirming that we don't need to take you seriously.

Posted by PaulB | August 10, 2007 11:19 PM

"And BTW, why is it idiotic to suggest we should advertise the enemy's shortcomings?"

Dear heart, what was silly was the type of "advertisement" you proposed to make. It was clumsy, stupid, and almost certain to be laughably ineffective, just as the other things that Bush has tried. He's even tried the propaganda route, remember? With our own version of the Al Jazeera network? How's that working out for you?

Posted by PaulB | August 10, 2007 11:23 PM

rea, are you saying that every member of al Qaeda--whatever that would mean--is guilty of every crime committed by members of al Qaeda? That's not right. It seems entirely possible for someone to travel to Pakistan and train in an al Qaeda camp for jihad without ever committing a crime under US law. If that's the case, why would we want to adopt the criminal law model?

Posted by Thomas | August 11, 2007 12:06 AM

"rea, are you saying that every member of al Qaeda--whatever that would mean--is guilty of every crime committed by members of al Qaeda?"

No, but it's a powerful tool of prosecutors. And many of them can, in fact, be charged with such crimes.

Posted by PaulB | August 11, 2007 12:10 AM

Yes, PaulB, I can see that some of them could be charged with conspiracy and with the crimes committed pursuant to that.

But I'm supposed to imagine a situation in which we seize an al Qaeda training camp--we've all seen videos of these, from the late 90s--and we try to figure out which individuals we've captured know enough for us to indict, and--and this is the hard part--I'm happy to let the rest go. You know, because otherwise I'd be dignifying their criminality. I'm sure they'll feel insulted as they waltz away.

Posted by Thomas | August 11, 2007 12:56 AM

One very positive feature of treating captured AQ members as criminals -- and by the way, can anyone identify a single member of AQ taken prisoner on a battlefield, rather than arrested in some other locale (I'm not saying there aren't any, just that it doesn't really fit the nature of AQ) -- is that rather than trying to have a one-size+fits-all paradigm, which fits military culture well, we instead do everything case by case. There are good reasons the treat KSM differently from Padilla from some schmoe from a shepherd. And yet the military intentionally adopted a lowest common denominator -- the little old lady is Switzerland -- so it could justify according the same basic structure for everyone it captured.

Posted by CharleyCarp | August 11, 2007 1:21 AM

Paul B, on trials for captured enemy combatants and how the enemy uses them as propaganda windfalls - Even if true, and I don't agree that it is, that is the price we pay for maintaining the rule of law.

Idiotic. The Japs played right into out propaganda hands by trying the US pilots that did the Dolittle Raid for bombing Jap civilians. Our pilots on trail knew they were toast, got some zingers in to global media, then were executed by an enemy that tried using the "maintaining rule of law" stupidity in wartime. The trial, juxposed with Jap atrocities like Naking's bombing, was made into a movie and shown to US servicemen as a motivator to kill Japs and win victory.

To arbitrarily put people into "a black hole" without trial and without evidence goes against every principle this country was founded on.

Except that insipid argument ignores that we tossed all such combatants in "black holes" of American civilian law jurisprudence in every other war we were in. 2 million held by Allies in WWII. It hardly goes "against everything we stand for" except in the minds of Lefties who see unlawful enemy Jihadi combatants as anything but misguided people angered by "root cause sins of the West".

That is the tactic of a dictatorship, not the tactic of a free democracy.

No, tossing enemy combatants into a hole for the duration and dragging the unlawful combatant ones in front of a military tribunal has been standard operating procedure since George Washington began doing it with the Continental Congress's endorsement. (Including all those Lefties love to quote out of context like Jefferson and Franklin - who had his own son thrown in an unheated stone cell in solitary for 2 years without charges until a POW exchange with the Brits was done). Good enough for Lincoln and FDR, too!

Now a dictatorship, PaulB, does things like real torture, not the Lefty fantasy torture imagined in "interrogator ordeals". They do death pits with no trial for mass liquidations, show trials for special victims.

Posted by Chris Ford | August 11, 2007 1:29 AM

Actually, I'd argue that not only are these terrorists not "enemy combatants," they aren't even a serious threat to our nation.

Actually, scratch that. As public sentiment and readiness stands today, they most certainly are a large threat to the nation.

But they really shouldn't be.

In terms of loss of life, and capacity for damage, terrorists really aren't much of a threat to the US. September 11 is more of the exception that proves the rule. It was a freak occurrence. It could only be pulled-off successfully once. Things have changed too much for it to work again (and no, it has nothing to do with that obnoxious airport security screening stuff). The WMD issue is largely illusory. The only really dangerous WMD a terrorist might possibly use is a Nuclear fission bomb and those are so hard to assemble, hide, and deliver to a target that you might as well not even bother - not when conventional explosives are both easier and capable of causing just as much panic. Biological and chemical weapons are unreliable and largely impotent when applied to metropolitan terrorism scenarios. A dirty bomb is actually unlikely to cause all that much harmful radiation in the first place.

The real damage is being developed in the car bomb scene. But honestly, no amount of "homeland security" is going to prevent a group from blowing one of those things outside a US government building. So why freak out about it?

The real damage that terrorists can cause the US in an attack is in the ensuing panic, market shocks, and overwrought governmental responses.

But in that instance, the better remedy is to inoculate the public against panicking. Create a disciplined media disaster response, beef up civic and governmental disaster response apparatuses. That kind of thing.

Our goal should be resilience more than prevention.

Look, if you want to talk actual American lives lost, cell phone use while driving is a greater threat to America than Osama bin Laden. It's a senseless killer of thousands of Americans every year. Expand it to automotive accidents generally, and you're talking an appalling loss of life that absolutely dwarfs Iraq. It's the number one killer in America and in the world. Over 6 million people were killed in auto accidents worldwide last year. More than in all the wars and conflict zones of the world COMBINED for that year. And that's not even counting people who weren't killed - just hideously maimed.

Time to get a little perspective on things, calm down, and stop paying more attention to terrorists than they deserve - they deserve very little.

Posted by Rathje | August 11, 2007 1:39 AM

By our laws, the 15 Saudis would have only gotten 5-10 on hijack conspiracy.

Wrong. Under federal antiterrorism law dating back to 1990, conspiracy to commit an act of terrorism intended to murder US nationals carries a sentence of life imprisonment. There is no parole in the federal prison system. If a US national were to be murdered during an act of terrorism, the death penalty is applicable. These statutes encompass "the Al Qaeda terrorists who want to kill Americans" that the President professes to be so concerned about and whom Chris Ford erroneously believes would not be liable for severe criminal penalties under our legal system.

It seems entirely possible for someone to travel to Pakistan and train in an al Qaeda camp for jihad without ever committing a crime under US law.
Wrong. Hamid Hayat, a 24 year old Pakistani immigrant from Lodi, California, was convicted for providing material support to terrorists for doing precisely that. Because of post-trial motions, sentencing for his April, 2006, conviction was delayed and coincidentally was rescheduled for today. He faces 39 years in federal prison.

Posted by UN Plaza | August 11, 2007 1:43 AM

we try to figure out which individuals we've captured know enough for us to indict

That's what the FBI is for. Or, you could send them to a CIA prison in Poland to be tortured. That would almost certainly extract a confession to whatever you want, just ask the KGB. However, it wouldn't be especially useful for intelligence purposes or in a court of law.

Posted by UN Plaza | August 11, 2007 1:48 AM

rea, are you saying that every member of al Qaeda--whatever that would mean--is guilty of every crime committed by members of al Qaeda?

Yes. If they udnerstood al Qaeda was a organization that committed terrorist attacks, then it doesn't mmatter if they had no knowledge of a particular attack. It's a conspiracy, and every act committed in furtherance of the conspiracy is attributed to every other member of the conspiracy.

By our laws, the 15 Saudis would have only gotten 5-10 on hijack conspiracy.

Complete nonsense. You don't know what you're talking about. Yo're just making shit up. Go ask someone who practices criminal law (me, for example) if this bears any relationship to reality.

You right wingnuts hate the law and the courts, and therefore you don't want to admit that they are quite capable of convicting and punishing criminals

Posted by rea | August 11, 2007 5:37 AM

Remind me not to hire you as a lawyer unless I'm broke and the court appoints you, rea:

From the criminal law website:

Conspiracy crimes can include conspiracy to engage in criminal activity such as money laundering, conspiracy to violate federal laws, or conspiracy to manufacture drugs or weapons. The federal maximum penalty for conspiracy is five years in prison; however, this may be compounded by other state and federal violations.

Like UN PLaza, you didn't read my hypothetical too well. As in the case of the Nazi saboteurs, suppose one of the Islamoids had gotten cold feet and tipped off the FBI. The plotters were caught before and "crime" other than conspiracy was committed. Just like the Nazis off the U-boats. And the 15 Saudis were not told it was a hijacking for a combat attack on America. They were told by AQ leadership it was a hijacking to free Palestinian and Saudi political prisoners.

The Saudis if the 9/11 plot would have been thwarted, would have seen them all home by now, with liberal lawyers like you belittling the "paranoid government" to imagine that a bunch of bumbling Arabs could take planes over with boxcutters.
Atta and the other 3 who knew what the plot was about would get gigged on other pre-Patriot Act charges no doubt, with creative Fed prosecutors involved - but would have a pack of criminal defense lawyers screaming for their release soon after the Saudi boys were let go.

On the other hand, military law provides for life in jail or execution of any unlawful enemy combatant - even if they didn't jaywalk once in the USA or harm a single hair on anyone's head. As was with the Nazis, as will be the case if any terrorist plotters are bagged and America finally eases the ACLU and other pro terrorist rights forces out of positions of having enough influence they can save the terrorists from justice.

Nor do you grasp the concepts of distance and knowledge in conspiracy charging - Best typified by Lefties begging for the poor GITMO AQ folks argue that unless they knew of the 9/11 plot, they cannot be prosecuted for conspiracy and the combat casualties the operatives inflicted outside laws of war. And, US courts and the military agreeing that you cannot sweep the net for 9/11 involvement that wide based on America not killing every Nazi Party Member for the war crimes of some..

Posted by Chris Ford | August 11, 2007 7:13 AM

Rathje - Actually, I'd argue that not only are these terrorists not "enemy combatants," they aren't even a serious threat to our nation.

Radical Islam has butchered 8 million in the last 100 years. 3rd to Communism's 60 million, Nazis 28 million.

Looking over their 1400 year history though, of radical Islam rising surging into mass butchery again, and again, radical Islamists are history's all-time champs at Democides.

In terms of loss of life, and capacity for damage, terrorists really aren't much of a threat to the US.

It's not just us, the world is growingly seeing them as quite a significant threat to modern civilization.

September 11 is more of the exception that proves the rule. It was a freak occurrence.

No, it was a well-planned and executed combat operation 5 years in the making.

It could only be pulled-off successfully once. Things have changed too much for it to work again (and no, it has nothing to do with that obnoxious airport security screening stuff).

Particular attacks may not succeed again. But the scope of targets in the US is so vast it is impossible to play defense and defend them all. Just protecting against a Beslan by a squad of 8 Islamoids would require 7 million armed guards stationed at all schools and universities until they could be "hardened" into fortresses at a cost of hundreds of billions.

The WMD issue is largely illusory. The only really dangerous WMD a terrorist might possibly use is a Nuclear fission bomb and those are so hard to assemble, hide, and deliver to a target that you might as well not even bother

Nonsense. The only difficult part is getting the HEU. High school students have come up with workable designs, easily assembled. The gun-type is so simple and reliable that the Manhattan project didn't even need to test one before dropping the 1st of it's kind on Hiroshima. Nor are HEU bombs hard to hide and deliver. Shielding prevents detection, even with todays detection equipment, assuming you didn't just set it off when the ship is at the harbor pier in a big city or above it in an international flight before any "security detector people are within 1,000 feet of it.

not when conventional explosives are both easier and capable of causing just as much panic.

I think you need to learn a little bit about weapons before you make statements that a nuke detonation would cause no more panic than a car bomb..

Biological and chemical weapons are unreliable and largely impotent when applied to metropolitan terrorism scenarios.

Again, you need to learn a little bit about Chem and Bio weapons before you call them "unreliable and largely impotent".

I will give you one kudo. Right now, 6 years after 9/11, the public is woefully misinformed on who the enemy is, what the risks are, and what they and their community and state need to do in various scenarios. The Bushies are to blame for telling us to shop, travel, do something nice for your neighbor and don't think - that is what Your Government Heroes are paid to do. The Democrats are no better - their main concern is that immediately after a terrorist attack Americans should take up a collection for the victims but also the terrorists so the combatant's "Precious Civil Liberties" are safeguarded from trammeling by the Evil Bush-Hitler and the Evil Centrist Democrats. Bad Centrist Democrats who fail to realize, according to Lefties, that terrorist rights are paramount to prevent the long dark slide into Fascism...

Posted by Chris Ford | August 11, 2007 7:51 AM

The bottom line is that treating them as criminals means that very few go to jail(and many for short terms, as we've seen in European trials of terrorists), and the rest waltz away to try again.

I'm 99% sure that in the real world no Democratic President will be that stupid. Most likely, we'll see a review of the case of everyone currently in custody, many will be repatriated to their home countries, and the rest will continue to be on ice.

No President, Democrat or Republican, is going to let a KSM or Zubaydah go. None.

Posted by Adam Herman | August 11, 2007 8:23 AM

Adam: "Are you reading what I actually write, or just falling back on your talking points?"

I do. Do you? "No reasonable person supports the administration having the power to just declare anyone on American soil a terrorist and detain them."

Your words dimwit. So I ask again, Jose Padilla a name to you?

Posted by DrBB | August 11, 2007 9:02 AM

'War' describes (para)military hostilities over a limited period of time in (a) defined geographical areas. There are metaphorical uses, for sure, but they have no legal weight. The scary thing is that the Bush administration and half of the American public are willfully using the word in its metaphorical sense, while trying to take advantage of the rights and obligations that come with the word in its literal sense. Even scarier is the fact that they're cherry picking existing laws of war, making up new ones ("unlawful combatants") and are reverting to military or criminal law, which they then turn on its head again, whenever the protections that the laws of war grant participants are getting in their way.

The only conclusion is that neither the Bush administration, nor a large part of the US public give a f@ck about the law, but instead want to do whatever they like wherever they like for an unlimited period of time. Rosa Brooks is pretty good on this issue discussing Gitmo.

Posted by novakant | August 11, 2007 9:46 AM

No reasonable person supports the administration having the power to just declare anyone on American soil a terrorist and detain them.

This is one of the most stupid, dishonest, incredibly obtuse things I've seen anyone say in a very long time.

And I work for DHS, too.

Posted by jonathan | August 11, 2007 10:27 AM

Wes Clark has been taking this position for years. For anyone who didn't read the September 2001 article by Clark in the Washington Post (or has read it but forgotten the content), here is a link:

http://wesleyclark.h1.ru/usa_attack1.htm#A%20Long,%20Tough%20Job

Our country needs to heed the ideas and ideals that Clark puts forth - and not just in regards to our foreign policy. Please take some time this week to read some of the other op-eds and articles Clark has written. http://securingamerica.com/

Wes Clark is an inspirational person who has done so much for our country, and who continues to try to set us on the best course for the future.

Posted by Pamela | August 11, 2007 11:05 AM

Beyond question, Zorro would have been considered to have been a "terrorist."

Posted by Duncan Kinder | August 11, 2007 11:31 AM

"The bottom line is that treating them as criminals means that very few go to jail(and many for short terms, as we've seen in European trials of terrorists), and the rest waltz away to try again."

LOL... More silly assertions. When you choose to try to back up your assertions, we might be able to take you seriously. Until then, we'll keep poking fun at you.

"I'm 99% sure that in the real world no Democratic President will be that stupid."

For the sake of our future, I sincerely hope you're wrong.

Posted by PaulB | August 11, 2007 2:45 PM

"Idiotic."

You have not presented sufficient evidence that it is, in fact, idiotic, nor that such "idiocy" is sufficient to overturn the rule of law.

"Except that insipid argument"

I'm so sorry that you find the principles on which this country was founded "insipid." Most of us find them to be inspiring.

"ignores that we tossed all such combatants in 'black holes' of American civilian law jurisprudence in every other war we were in."

Not only is this not true, almost all such instances of this behavior are now, appropriately, seen as shameful overreactions. Moreover, the "war on terror" is unlike any of those other wars, which means that the point you are making is entirely moot.

"2 million held by Allies in WWII."

Oh, good grief. You're comparing apples to oranges. Come back when you're ready to be serious.

"It hardly goes 'against everything we stand for'"

Really? Throwing innocent people into "black holes" for the rest of their lives for absolutely no reason whatsover doesn't go against "everything we stand for?" What country do you live in?

"except in the minds of Lefties who see unlawful enemy Jihadi combatants as anything but misguided people angered by 'root cause sins of the West'."

Nice strawman argument. Got anything real to contribute?

"No, tossing enemy combatants into a hole for the duration"

Dear heart, you're still ignoring the elephant in the room: the "duration," in this case, is forever, and the overwhelming majority of people "tossed ... into a hole" are not, in fact, enemy combatants.

"and dragging the unlawful combatant ones in front of a military tribunal"

We're talking about "black holes," remember? Those don't include a "military tribunal." You can't even keep your story straight, since you think trials are "idiotic."

"Now a dictatorship, PaulB, does things like real torture"

Which we have, in fact, done, and continue to do. People have died under U.S. sanctioned torture. So much for my "lefty fantasy."

This was pathetic. Come back when you're ready to have a serious discussion and not indulge in mindless partisan drivel and jingoistic nonsense.

Posted by PaulB | August 11, 2007 2:55 PM

Another flaw in the argument about making them criminals:

Soldiers are not policemen. Are you going to have soldiers reading captured combatants their rights?

Posted by Adam Herman | August 11, 2007 6:40 PM

"Another flaw in the argument about making them criminals:"

Actually, it's not really a flaw. You just can't seem to get your head wrapped around the fact that most of the time, we aren't going to be using soldiers, that they are a wildly inappropriate tool for the majority of situations.

"Soldiers are not policemen. Are you going to have soldiers reading captured combatants their rights?"

Dear heart, why should you assume it's difficult for anyone, policeman or not, to read someone else their Miranda rights? In any case, there's a hell of a long way to go from "Oh, dear, we can't read them their Miranda rights," to "Oh, well, I guess that means we should put them in a black hole forever."

Give it up; this is just pathetic.

Posted by PaulB | August 11, 2007 8:29 PM

No, in most cases soldiers won't be the ones doing it. But in some cases, they will be.

Since soldiers are now law enforcement officers in your view, do they also now have to fire warning shots first when they encounter the enemy, er, sorry, suspects? I wonder how that will work for gunship pilots?

The fact is, if we have to deploy military forces, it's a war. So the fight against Al Qaeda is both a law enforcement operation(US and Europe) and a war(Afghanistan, Somalia, Dijibouti).

Posted by Adam Herman | August 11, 2007 8:45 PM

"No, in most cases soldiers won't be the ones doing it. But in some cases, they will be."

So? Either way, it's irrelevant. Take another look at what I actually wrote and deal with that.

"Since soldiers are now law enforcement officers in your view...."

Since that isn't my view, forgive me I refuse to engage this silly strawman argument.

"The fact is, if we have to deploy military forces, it's a war."

Nope, sorry, but that simply is not true. If this were truly the case, the U.S. would have fought literally hundreds of wars over the past decade or so.

"So the fight against Al Qaeda is both a law enforcement operation(US and Europe) and a war(Afghanistan, Somalia, Dijibouti)."

Afghanistan is the only one that belongs on that list and it's the only time that you could legitimately call it a war. In any case, it's irrelevant, since you are once again arguing against a point that nobody is making!

Posted by PaulB | August 11, 2007 9:49 PM

Suppose that the US Constitution as it currently is and the limits it places are insufficient to handle terrorism. (I don't believe so, but just for argument's sake, let us suppose so.)

What is the remedy?

It is provided for in the Constitution, and it is called a Constitutional Amendment.

If sufficient number of legislators and States believe that the President need the authority to torture or whatever then let us pass a Constitutional Amendment to that effect.

What is wrong is the President, with Congress's acquiescence, shredding the Constitution as it is.

Posted by Arun | August 11, 2007 10:10 PM

While that applies to the Padilla case, it has no bearing on combatants captured overseas. It was not a threat to our Constitution when German POWs were brought to the US as slave labor, it's not a threat to the Constitution that we've locked up a few hundred foreigners in Gitmo.

There are other problems with the way we've handled combatants, but that's not one of them. And it would be disastrous if we set a new precedent that any foreign combatant captured gets Constitutional rights.

Posted by Adam Herman | August 12, 2007 9:23 AM

"While that applies to the Padilla case, it has no bearing on combatants captured overseas."

True combatants captured overseas are prisoners of war and are entitled to the rights guaranteed to them by the treaties that we have signed. You still cannot bring yourself to acknowledge that the majority of people held in U.S. prisons around the world were not only not combatants, they were completely and totally innocent. And for those that are combatants, the war is over, which means that, again by international law, they should be freed.

"it's not a threat to the Constitution that we've locked up a few hundred foreigners in Gitmo."

It's a threat to the U.S. Our behavior has irreparably damaged our reputation and it continues to generate anger against us. Terrorist incidents, deaths from acts of terrorism, and support for terrorist organizations have all increased during this so-called GWOT.

In any case, how long are you going to hold them? The prisoners at Guantanamo were, in theory, captured during the Afghanistan war, a war that is now over. What pretext are you going to use to keep them in a "black hole," particularly the ones that are wholly innocent?

"And it would be disastrous if we set a new precedent that any foreign combatant captured gets Constitutional rights."

Why? You have never presented a single shred of evidence to support any of your assertions in this entire thread. You have refused to look at the actual facts of the various matters, and you have consistently avoided dealing with any of the counter-arguments raised by the other commenters here. It's doubtful that you even bothered to read the op-ed that Matthew mentions in his original post, given your inability to deal with with it actually says.

Instead, you continually assert that we need to lock people up in a "black hole" forever, in violation of international law, in violation of the U.S. Constitution, and in violation of the principles on which this country was founded. And for what? Well, just because, basically. As I said above, this is pathetic.

Posted by PaulB | August 12, 2007 12:41 PM