The War on Terror in Retrospect
Anatomy of an Overreaction
The Strategy of Terrorism
License to Kill: Usama bin Ladin's Declaration of Jihad
It Could Happen Here: Facing the New Terrorism
The Taliban: Exporting Extremism
The Sentry's Solitude
Somebody Else's Civil War
America the Vulnerable
The Reluctant Imperialist: Terrorism, Failed States, and the Case for American Empire
America's Imperial Ambition
The Law of War in the War on Terror
Combatants or Criminals? How Washington Should Handle Terrorists
Grading the War on Terrorism
Is There Still a Terrorist Threat?: The Myth of the Omnipresent Enemy
Al Qaeda Strikes Back
Can the War on Terror Be Won?
How to Fight the Right War
Terror and the Law
The Limits of Judicial Reasoning in the Post-9/11 World
How al Qaeda Works
What the Organization's Subsidiaries Say About Its Strength
Recalibrating Homeland Security
Mobilizing American Society to Prepare for Disaster
Al Qaeda Without Bin Laden
How Terrorists Cope With their Leader's Death
Al Qaeda's Challenge
The Jihadists' War With Islamist Democrats
Fighting a War Under Its Rules
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
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