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Foreign Affairs From The Anthology: The U.S. vs. al Qaeda
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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

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