Terrorism as War or Crime? It's More Than A Legal Issue

A New York TImes op-ed published earlier this week by Wesley Clark and Kal Raustiala asserted that we made a mistake by treating 9/11 as an act of war, allowing the adversary to claim the mantle of "soldiers" or "combatants."  Although I agree with Ken Anderson that it's a little late to be having this discussion, almost six years into the "war," Bobby Chesney's post immediately below suggests the value of highlighting that this issue is more than one of just law per se.

Ken and Bobby are quite correct that al Qaeda's conduct has not complied with the law of war and that individuals fighting as part of that organization thus cannot currently claim either prisoner of war status or belligerent immunity from domestic criminal prosecution.  So from this perspective, it really doesn't seem to matter much what paradigm we select, except that war allows greater flexibility in detentions so it might logically be preferred.

I don't disagree (much) with this logic, but am simply concerned that this fairly critical national security decision was seemingly made as a virtually instantaneous knee-jerk reaction on the morning of September 11, 2001 without a thorough vetting of the issues involved.  Many of these issues are legal, indeed I think the legal issues are much broader than commonly articulated, but there are often overlooked political and even psychological components as well.

First, it's important to note that in response to the emerging late 20th centurty terrorist threat, a dozen international treaties were concluded on the subject between 1963 and 1999.  These agreements cover a lot of ground, but among their provisions are requirements calling on all nations to define acts of terrorism such as aircraft hijacking and bombings as crimes in their penal codes, deny terrorists safe haven, and cooperate to suppress the financing of terrorist activity.

There are a number of potential advantages accruing from applying the crime paradigm:

(1) Criminal law has a clear retributive component, stigmatizing the criminal as a wrongdoer worthy of moral condemnation.  This is true in essentially every society.  By contrast, many, if not most societies associate a certain positive aura with being a warrior.  While stating we're at war with al Qaeda does not confer legality on their acts per se, it does semantically legitimize their claim to be engaged in jihad against us and makes their fighters definitionally into "warriors" rather than mere criminals.  So the adversary arguably reaps a substantial political and psychological benefit from our decision to treat this as a war that would be denied if we insisted they were mere criminals.  I think this is fundamentally the point that Clark and Raustiala were trying to make, and I don't think it is answered merely by treating this as legal question.

(2)  The terrorism conventions require all nations to cooperate in efforts to suppress this activity.  Participation in war is optional, however, with neutrality being a legal choice available to nations which would like to stay on the sidelines.  It is not inconceivable that some nations either sympathetic to al Qaeda or perhaps cutting a secret deal, could declare themselves neutral and refuse to cooperate with U.S. counterterrorism efforts.  Some reports argue Spain has implicitly moved in that direction, for example.

(3)  Crime is illegal no matter how you conduct it.  You can't put on matching suits, leave women and children unmolested, then rob or kill government officials and claim immunity.  Robin Hood and his Merry Men may have been popular, but they were still crooks.  Once we declare ourselves at war, however, we  create the possibility that members of terrorist group could come into sufficient compliance with the law of war to be entitled to immunity for at least some of their acts.  The USS Cole bombing is an example of an attack that comes closer than might be generally recognized to being legal.  A U.S. warship is indisputedly a valid target, and it may seem archaic, but the international law governing naval warfare allows much greater use of ruse, including false colors and civilian disguise during the approach to an enemy, than is allowed under land warfare rules.  If we treat terrorism as a crime, than even attacks on our military are per se illegal.  Once we treat it as war, such attacks take on a substantial degree of legitimacy from a propaganda perspective, and it is not beyond the realm of possibility that they could be legally conducted as well.

An issue that I think even the most sophisticated law of war scholars will disagree about is precisely where to draw the line at belligerent classification.  We know that the individual level is too low -- it would defy logic if one detainee could claim that they personally followed the law of war and were entitled to POW status and belligerent immunity even if the others in their immediate group were not.  How, for example, could one individual have a "uniform" if it was not the same as what the others in the group wore?  On the other hand, to say that all members of a large entity, such as the Taliban or al Qaeda must comply with law of war mandates for any to qualify as lawful combatants seems like it goes too far in the other direction.  From the 1863 Lieber Code through our treatment of German units after WWII, we've drawn the distinctions between lawful and unlawful combatants on a mid to low level organizational basis.  SS armored units were not treated as illegal combatants because other SS personnel ran concentration camps or served as mobile execution squads in Eastern Europe, for example.  So even while al Qaeda's leaders pursue illegal acts and individual cells carrying out attacks against civilian objects are clearly unlawful combatants, a blanket approach denying every member of the organization legal combatant status likely goes too far. 

The war paradigm may well have been the right choice for combating al Qaeda.  But the legal issues that needed to be considered in making the decision are more complex than generally acknowledged, and the overall factors that needed to be considered to make the best decision are broader still.  Ultimately, as Clausewitz aptly put it, "war is the continuation of politics by other means," and political and psychological factors merit careful balancing as well.

Comments

[Howard Gilbert]

During WWII the OSS and British SOE dropped agents behind enemy lines. Wearing civilain clothes, they sabotaged trains, blew up bridges, and sank at least one ferry boat. These actions were crimes and might have been labelled as "terrorism" by the enemy. Would it have been reasonable for the Germans to, on the basis of a handful of special operations, declare the entire Allied military force to be unlawful combatants and deny them POW status? If not, then why should the US deny lawful combatant status to Hamdi, Khadr, or any of the other 18,000 infantry men simply because 19 hijackers and their command cadre (KSM, Binalshib, al Balchi, ..., and their commander Bin Laden) carried out one operation in violation of international law?

Quirin reminds us that particular types of unlawful combatants (spies and saboteurs) can be tried as both criminals under civilian courts and as spies under military courts. It is entirely up to the government. While this works well for someone like al Marri captured in the US after committing real crimes, criminal prosecution was not going to be very effective against 18,000 infantry soldiers armed with assault rifles and RPGs. You might have used criminal justice against Muhammad Atta if you cought him before 9/11, but Muhammad Atef (military commander in Afghanistan) could only be handled with the 2000 pound bombs the F-16s dropped on him.

Everyone says that al Qaeda does not follow the laws of war, but nobody seems to be more specific. Clearly hijacking civilian airliners is an act of piracy which criminalizes those involved and their chain of command. Beyond that there is one group that claims al Qaeda is unlawful because it doesn't represent a state, others who claim that it is the lack of uniforms. The root problem, which nobody mentions, is that al Qaeda follows laws of war established by Sharia and ignores our international law. If the armies of the Prophet that nearly conquered the world 1400 years ago didn't wear uniforms and have ranks, then al Qaeda doesn't think it needs them. On the other hand, bin Laden officially declared war twice as required in Sharia but not in our law. Nobody has ever been brought into court on only charge of "violating the laws of the State", but a lot of people think they can base an entire foreign policy on a claim of "violating the laws of war" and never have to be more specific.

[Michael Lewis]

As it stands now, the status determination that Geneva makes at the outset is based upon organizational conduct. If an organization meets the Geneva requirements which include uniforms, organizational command structure and an organizational recognition of international law (given Protocol I's take on this, uniforms are the least important of these requirements) then all of its members are accorded combatant status. Those that have committed crimes (like the WWII Allied saboteurs posited above) are then charged for their individual acts, but they retain their combatant status.

Conversely if the organization fails to meet these requirements then none of its members are accorded combatant status, no matter how they have behaved individually. Because al Qaeda's leadership consistently advocates targeting civilians (perhaps the worst possible violation from Geneva's standpoint) its members cannot attain combatant status.

Denying all al Qaeda members comabatant status is not as problematic or as inconsistent as has been implied. The fact that Waffen SS troops were accorded combatant status by the Western Allies in spite of the behavior of the Einsatzgruppen and other extermination units in the east does not support the claim that distinctions were made on a "mid to low level organizational basis". It was made on a theater-wide basis. In spite of incidents like the Malmedy massacre, all SS were treated as combatants in the West.

This theater-wide distinction also indicates the way forward in the current conflict. If al Qaeda leadership in Iraq (or Southeast Asia or Afghanistan) were to change its tactics to eliminate the systematic targeting of civilians, the taking of hostages and the execution of prisoners in that country/region/theater of warfare, then its members in that area would be entitled to combatant status. Of course such a change must be more than a mere verbal statement. It must be backed by some internal disciplinary measures and a generalized organizational acceptance of that change.

Because command structure, organization and internal accountability are central to Geneva's requirements for combatant status, any further breakdown of accountability and combatant status determinations beyond the theater level would seem to be inconsistent with Geneva's purpose. While this approach will undoubtedly encounter the criticism that it fails to encourage local provincial leaders from complying with IHL, I do not believe that is a level at which IHL can effectively operate. There are far more meaningful incentives/disincentives operating at the tactical level than the question of combatant status. To the extent that status is important to the tactical level commander, it would be hoped that these concerns would move up the chain to effect a theater-wide change.

[Alan G. Kaufman]

Dave has gotten at what, for me, has always been the central problem or paradox with the "war paradigm" for counter-terrorism operations, and that is this:

The term "unlawful combatant," for me, is an oxymoron. To be a combatant is by definition lawful -- even honorable. It is a status, not an act.

Combatants have the privilege to kill, and commensurately, have lost their "right to life."

Combatants in armed conflict may intentionally kill and be killed by other combatants.

Combatants sometimes behave unlawfully, in which case they may be tried for their crime, for example murder, for intentionally killing a noncombatant, or other war crimes, such as intentionally attacking protected sites.

But combatant is a status, which is by definition lawful. It is actions, not status that defines "lawful," or unlawful."

The paradox with the terrorist as "unlawful combatant" model is that it deprives the terrorist of his right to life, while denying him the combatant's privilege to kill.

Thus, like a combatant, the so called "unlawful combatant" terrorist may be targeted and killed on sight regardless of whether caught in the act. Like an enemy soldier, he may be lawfully killed in his sleep, or while driving in a car to a meeting.

But should this "unlawful combatant" kill a lawful combatant at any time, even while that combatant is attacking his camp, we call it murder. He is not granted the combatant's privilege.

My problem with this result is that it merges the concepts of jus in bello with jus ad bellum.

In that model, we do not hold combatants accountable at law for the decision of their state to go to war. We hold a combatant accountable only for his conduct in the war. Even if the declared war is an unlawful one, the combatant is not a criminal for killing other combatants in the prosecution of that unlawful war. His behavior is honorable, even if his state is not. He is a warrior, like the warrior on the opposing side. This has the benefit of maintaining a certain limit on what conduct is permissible in war -- even ones unlawfully or wrongfully begun (which are all of them, depending on which side you are on), by governing the conduct of those doing the fighting.

The term "unlawful combatant," on the other hand, makes such a person accountable, not just for his conduct in war (jus in bello) but for the decision of his "state" to go to war. He becomes dishonorable and criminal not just for his behavior in the execution of the war, but for his very participation in it.

This is anti-thetical to the jus in bello/jus ad bellum construct and to the modern law of war as we have known it. Remove the constraint imposed by jus in bello, and behavior in war can escalate beyond "honorable" bounds very rapidly. It takes us into the dangerous realm of "the end justifies the means."

This because it allows each side to say of the other -- they started this war unlawfully, so they do not deserve the benefit of the laws of war -- we can do to them what they may not do to us . . . . This escalates rapidly as each side justifes doing worse to the other . . .

This is exactly the evil that the boundary between jus in bello and jus ad bellum seeks to inhibit.

Why does this happen to us now?

Because terrorists - the kind we fight these days --do not act for a state.

They act for a non-state organization that has declared war upon us. And because we do not consider this particular non-state organization to be a polity like a state --consisting of its citizens yet existing in law also independently of them (similar to the way a corporation is a person in the law, separate from its individual shareholders who are not (usually)individually liable for corporate crime), we hold each individual fighter accountable not just for his conduct in the fighting, but for the decision of the entity itself to go to war against us.

Thus, in this model, a terrorist can never be a combatant -- he can never have the combatant's privilege, because he is individually liable, unlike the true combabtant, for the decision of his entity to go to war. He can never fight with honor, as do true combatants, because he can never be separated from the unawful decision to even make war in the first place.

So "unlawful combatant" is an oxymoron. It implies a jus in bello status and accountablility for a jus ad bellum action.

And by creating this oxymoronic category of "unlawful combatant" we claim the privilege to kill him -- deny him a right to life -- while denying him a reciprocal combatant's privilege as against our own state combatants.

This is expedient, but is it honorable? And what does it say for maintaining limits on the conduct of war so that it doesn't escalate beyond all human control, to something that we never desired or anticipated (as Thucydides describes of the Peloponnesian wars, or as Lincoln comments on the American Civil War:

"Neither party expected for the war, the magnitude or the duration, which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself would cease. Each looked for an easier triumph, and a result less fundamental and astounding . . .The prayers of both could not be answered: that of neither has been answered fully. The Almighty has His own purposes"

Or as Clausewitz put it: " . . .war, untrammeled by any conventional restraints, has broken loose in all its elemental fury.")

My own suggestion is that we ought to look at the counter piracy efforts of the 17th and early 18th century as a model for how to bring the force of war and a global effort against a dishonorable, non-state enemy. This is a model based in law enforcement, producing trial and punishment, using warships and honorable combatants to enforce the law . . . yet never for a moment conflating the enemy with a state . . .

[Michael Lewis]

While I agree that the term "unlawful combatant" does create a conundrum, I take exception to one of Alan's comments. By labeling terrorists "unlawful combatants" I do not believe that we are taking away their "right to life." It is still necessary to differentiate between a civilian and a terrorist and all terrorists are presumptively civilians until their activities show them to be otherwise.

The Israeli Supreme Court opinion wrestled with this distinction. At what point does a civilian become a terrorist that can be killed in his sleep or on his way to a meeting? The Court answered this question by looking at the duration and prevalence of the individual's activities. Low level one time supporters or operatives are NOT allowed to be targeted except when in the act of committing (or preparing to commit) a terrorist act (ie not killed in their sleep). Upper level terrorists that are pervasively involved in such operations, on the other hand, are denied the mantle of civilian status. You may not sleep safely at night just because you left your RPG at the office.

While there will certainly be disagreement about the details of the ISC opinion, the framework is one that preserves the distinction between civilians and terrorists and means that the label "unlawful combatant" carries a lack of combatant privilege but DOES NOT result in the automatic targeting of the individual.

[Howard Gilbert]

During WWII the Japanese explicitly rejected the then current Geneva Convention, while the Germans and Russians killed millions of prisoners of war. Objectively it could be said that none of these countries agreed to abide by the Laws of War. The proposed legal theory then argues that none of their armies were entitled to privileged combatant status, but then goes beyond the question of handling POWs to suggest that those who are not lawful combatants cannot be met with military force. Since they are not combatants, we may not target them with military forces and bombs, but must find some way to arrest the entire German army and Japanese army and navy using only civilian law enforcement resources, then bring them to trial. Although I cannot find a logical problem with the legal reasoning here, the conclusion is clearly insane. So either there is something wrong with the principle that "the decision of a leader to not follow international law renders his army, no matter how large and well armed, to be terrorists who cannot be resisted with military forces", or else International Law is dangerous nonsense that must be resisted at any cost. I hope someone can point to the flaw in the reasoning.

[Howard Gilbert]

"Unlawful combatant" (also called "unlawful belligerent" especially before 1949) has several possible meanings. In the Quirin decision the Supreme Court used the term in several places. At one point it describes those who do no wear uniforms:

Our Government, by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents not entitled to that privilege, including those who, though combatants, do not wear "fixed and distinctive emblems." And, by Article 15 of the Articles of War, Congress has made provision for their trial and punishment by military commission, according to "the law of war."

For most of the decision, the term refers to the special status of spies:

By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations, [n7] and also between [p31] those who are lawful and unlawful combatants.Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but, in addition, they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. [n8] The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

Note that this passage distingishes first between the armed forces and civilians, but then divides the armed forces into lawful and unlawful members (rather than as some would have it declaring that unlawful combatants must be treated as civilians).

Of course the spy is an example of an enemy soldier who becomes an unlawful combatant through personal action rather than as a member of some larger combat unit. This shows that there is more to the question than just the status decision in Geneva based on organizational conduct. So those who say that this is a simple matter or that some single formula (Geneva Article 4 for example) comprises the entire definition are oversimplifying and missing some additional points or special cases. That said, it is clear that there is no comprehensive definition of the term, which certainly leaves it open to abuse.