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.