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.