On July 27, I commented on the liberal mindset that views terrorism as a law enforcement matter. Last Wednesday, a prime example of this reasoning appeared in a New York Times op-ed titled, ”Why Terrorists Aren’t Soldiers”. In the op-ed, Wesley Clark and his co-author, Kal Raustiala, say, “terrorism should be fought first with information exchange and law enforcement and then with more effective domestic security measures.” Rather than designate terrorists as “unlawful combatants,” Clark says they should be treated as “criminals.”
Clark’s initial observations make sense: The conventions of war, at least in the West, do indeed make a distinction between civilians and combatants. But he then makes a strange logical non sequitur. “That line is being blurred in the struggle against transnational terrorists,” he says, before placing blame for the blurring at the feet of the Bush Administration. The problem with the argument? The blame doesn’t lie with President Bush, but instead with those who actually have blurred the lines—the terrorists.
Terrorists, be they Irish Republican Army, Basque Separatists or Al Qaeda, exist by virtue of their indivisibility from the civilian populace in which they operate. By their very nature, they operate on asymmetrical terms: avoiding conventional warfare tactics in favor of guerrilla-style operations that allow them to strike before blending easily back into the population. Terrorists know that they’d lose a conventional war. So they instead disguise themselves among the population, shirk any semblance of conventional combatant forces such as uniforms, and blend in with the civilians who give them cover.
Clark (correctly, I might add) then points out that terrorists differ from soldiers, or at least our soldiers, in that they intentionally target civilians. But he then makes another unwarranted logical move, arguing that because of this distinction, they should be treated as “criminals,” not soldiers. Again, this just doesn’t follow.
Al Qaeda may not be a nation in the traditional sense, and so our custom of declaring war may not seem to fit. But this is to ignore what Sun Tzu, ancient Chinese strategist and author of the Art of War, said was the one certainty of war: Wars are always changing, they are always about mutual adaptation. Even though the declaration of war traditionally applied only to nations, it’s time for us to change that. It should now also apply to a newer, more amorphous enemy. Certain features of Al Qaeda, for example, lend to treating them as military combatants rather than as the mafia or triads.
First is their obvious use of violence as a means of attaining their end. Now, this alone won’t guarantee that they should be treated as soldiers. Indeed, the mob, and even petty bank robbers, use violence. But one can recognize a qualitative difference in holding a person up at gunpoint during a bank robbery and crashing a plane into the World Trade Center. One is for a mere material end, the other has a political end in mind. Second, Al Qaeda operatives have all the trappings of the military. For example, it trains its operatives in military-like camps and equips them for missions, albeit of a more clandestine commando nature. Third, is the question of scope. The mafia or triads may build an empire with global reach but rarely try to shape the religion and structure of the civil society in which they operate. In contrast to Al Qaeda, these bona fide criminal organizations tend to be minimalists wanting to shape the laws only to the extent that they interfere with their business. Al Qaeda’s goal— the reinstitution of the Sharia law under a global caliphate—isn’t nearly so modest. Law enforcement isn’t designed to thwart visions of global conquest, something that you’d hope a former candidate for U.S. president might understand.
By treating terrorists as combatants, Clark argues, “we accord them a mark of respect and dignify their acts.” This is absurd. Merely because you choose to oppose your enemy with martial means doesn’t mean you accord them or their actions legitimacy, much less dignify them. To say so would mean that we accorded dignity to Nazi Germany when we opposed them with military power; if anything, the opposite seems true.
Although he never bothers to spell it out, Clark also says, “[t]he formula for defeating terrorism is well known and time-proven.” Clark may hesitate to expand on this in part because past successful fights against terrorists, like the British fight against the Malaysian insurgency, have been accomplished through a combination of military might, civil affairs and special operations.
Perhaps the most vacuous of Clark’s claims is that labeling terrorists as combatants would make us impotent to prosecute them. He frames it as a 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.”He then says criminal is the most appropriate label, but this, once again, just doesn’t follow.
Just because the enemy may strike a military target doesn’t mean there wouldn’t be repercussions for that. Indeed, the strikes on Pearl Harbor were strikes on military targets. But that didn’t stop the U.S. from targeting Pearl Harbor’s Japanese strategist, Admiral Yamamoto, and then shooting down his plane. Furthermore, all of this is to forget that we have employed a military tribunal system in previous wars that is explicitly designed to deal with enemy soldiers who fight by illegitimate means. Let us not kid ourselves: Just because the Nuremberg trials were set-up under the aegis of the Allies by the London Charter in no way changes the ad hoc nature of the historic proceedings. Even without international imprimatur military tribunals should be used to prosecute terrorists who act unlawfully, much like the military tribunals were used to prosecute German saboteurs in Ex parte Quirin.
Clark then raises a non-descript concern about our commitment to liberty and quotes the Supreme Court about “a deeply rooted and ancient opposition in this country to the extension of military control over civilians.” I too share this concern, if it is founded, but in no way does fighting Al Qaeda with the military abroad endanger our commitment to the Posse Comitatus Act, which simply says that you shouldn’t use the military against the citizens of this country.
Clark then raises what is perhaps his only valid concern in the entire article, the indefinite military detention of U.S. citizens. On this much, Clark and I agree: Were we to find someone who is both a U.S. citizen and an alleged terrorist, like Ali al-Marri, I’d agree they should be prosecuted under our current judicial system for treason much like members of the Duquesne Spy Ring during World War II.
Finally, Clark closes by saying:
“Cases like this illustrate that in the years since 9/11, the Bush administration’s approach to terrorism has created more problems than it has solved. We need to recognize that terrorists while dangerous, are more like modern-day pirates than warriors.”Whether the Bush administration’s approach to fighting terrorism has created more problems than it has solved is debatable. It’s certainly something that is hard to empirically verify, so a pat assertion seems dubious. But it’s General Clark’s closing contention, that we treat Al Qaeda like “modern-day pirates,” that is ironic for it proves the opposite of what he asserts. We fight modern day pirates with Navy who is charged with securing our shipping lanes, not the FBI, and so in the end, Clark unwittingly makes the case for using the military to fight Al Qaeda.