Combatants or Criminals? How Washington Should Handle Terrorists

Fighting a War Under Its Rules

Ruth Wedgwood

Kenneth Roth chides the Bush administration for using armed force and the law of armed conflict to capture and detain al Qaeda's key operatives ("The Law of War in the War on Terror," January/February 2004). It is not clear, says Roth, that the "war on terrorism" is a real war, and in any event, U.S. criminal laws should be sufficient for dealing with the terrorists.

But a war is in fact raging, and criminal law is too weak a weapon. That was the lesson the United States learned too late, on September 11, 2001, after a decade of arresting and trying terrorist suspects. As a former head of the fbi's Joint Terrorist Task Force has remarked, the U.S. government could not stop al Qaeda bombings by treating them as ordinary homicides. Using such techniques, Washington did manage to take some people off the international street, but it was not able to shut down the offshore camps that taught thousands of al Qaeda recruits how to fight or wire deadly explosives. Nor could prosecutors compel Pakistani and Saudi intelligence agencies to stop subsidizing the Taliban and al Qaeda. Destroying the infrastructure of al Qaeda's operations has required diplomacy and the use of force as well as criminal law.

The purpose of domestic criminal law is to inflict stigma and punishment, and so it must be applied cautiously. Such reticence is proper for civil government in peacetime, but it is not always appropriate in war. Different priorities come to the fore when an international foe embarks on a campaign to kill or wound thousands of people. The law of armed conflict thus allows measures, such as the preventive internment of enemy combatants during the conflict, that do not require the full-dress procedure of criminal trials.

The difficulties of relying on criminal law, especially on its cumbersome standards of proof, may not be self-evident to nonlawyers. Roth suggests that criminal justice can provide all the tools necessary to defend a democratic public against catastrophic terrorism. But few criminal cases can be built on circumstantial evidence alone, and criminal proof demands near certainty -- or proof "beyond a reasonable doubt" -- a very high hurdle that even first-rate intelligence cannot usually meet. In a typical case, defendants cannot be arrested or sent to trial unless the state can find eyewitnesses or co-conspirators willing to testify against them publicly, braving the dangers of retaliation. Similarly, the rules of evidence used in criminal trials keep critical information out of the courtroom. Items that were seized without a search warrant or that lack a flawless chain of custody -- for example, the al Qaeda computer hard drives chock full of organizational data that a Wall Street Journal reporter found in a Kabul marketplace -- might not be admissible, no matter how important they are. Statements made by combatants in custody might also be rejected if the fighters were denied access to counsel at the time. Any defense lawyer sent to the battlefield would advise captured combatants to stop talking, undermining chances of uncovering timely intelligence about al Qaeda's plans. And criminal law requires that sensitive methods of surveillance be disclosed when they yield information offered as evidence, even though such transparency may prevent intercepting telltale signs of future attacks.

All these restrictions make sense in a civil society, where criminal law can provide adequate deterrence even with a limited success rate in the courtroom. But in the fight against al Qaeda and its compartmentalized network, deterrence does not work. There is no obvious way to dissuade fighters programmed by extremist cults or international terrorist organizations that are not bound by the commitments of nation-states. Half-measures will not do, because the stakes in this war are higher than in many others. Mistakenly releasing a single enemy soldier means little when battles are fought en masse. But in al Qaeda's asymmetric, high-tech campaign, it takes only a few combatants to destroy scores of innocent civilians. And al Qaeda remains keenly interested in using weapons of mass destruction.

Roth may doubt that the United States is at war, but it pays to ask the other side. Al Qaeda has declared jihad against the United States, and in fatwa after fatwa, Osama bin Laden has announced that all Americans are valid targets. The U.S. Congress has understood that threat well: after the September 11 attacks, it authorized the president "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons" (emphasis added). That resolution confirmed the constitutional authority of the president, as commander-in-chief, to capture and hold enemy combatants in an armed conflict, a practice that international law also permits during active fighting.

Common sense and proportionate rules of engagement are crucial, of course. No one is advocating shootouts at the landing gates of O'Hare Airport, as Roth seems to suggest. The U.S. government should continue individualized assessments of captured combatants and gauge at regular intervals whether they have given up the fight and can be safely released. It should also continue to respect the sovereignty of allies and neutrals (but warn rogue governments and rogue leaders that sheltering international terrorists is an actionable offense).