Courtesy Reuters

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).

On the face of it, Roth's three-part test sounds attractive. It allows resort to the rules of war against suspects only when the violence suffered by the United States is so intense and sustained that it amounts to an armed attack, when the suspects actively engage in plans for the attack, and when "law enforcement means are unavailable" to deal with them. But "unavailability" means different things to different people, and the foreign tribunals to which Roth proposes we defer often have idiosyncratic values or could be corrupt or intimidated. And while such ambiguities are debated, dangerous suspects might slip away.

Consider the case of Jose Padilla, a Chicago youth-gang graduate allegedly interested in "dirty bombs," who could not have been effectively countered under criminal law. According to the U.S. government affidavit filed in federal court, Padilla traveled to Afghanistan in 2001 to see a senior al Qaeda military planner named Abu Zubaydah, then went to Pakistan for explosives training. He agreed to return to the United States to stage multiple simultaneous bombings at gas stations and hotels and pick out targets for a radiological "dirty bomb" attack. Padilla flew back from Pakistan via Switzerland with agents in hot pursuit and, on landing in Chicago in May 2002, was immediately detained as a "material witness" for a federal grand jury.

The limitations of criminal law soon became clear. The Fifth Amendment privilege against self-incrimination meant that Padilla did not have to testify, and could not be held, unless the government agreed to protect him against any future criminal liability. Arresting Padilla on criminal charges was not an option, because the lead witness against him is Zubaydah, who remains in custody abroad as a crucial source of information on al Qaeda's future plans. The only alternative under standard criminal law was to open the jail door, let Padilla go, and hope that the police tail would not lose him.

To overcome this obstacle, the Bush administration decided to detain him as an enemy combatant under the law of war. Padilla was, after all, a saboteur behind enemy lines planning an act of war against his own country in cooperation with an international terrorist network. A federal district court agreed, although it granted Padilla access to defense counsel to assist in a habeas corpus hearing. But an appellate court has reversed that decision, ruling that the Bush administration did not have the power to detain any U.S. citizen as an enemy combatant, even under these dire circumstances, without express authorization from Congress. The case is now before the Supreme Court.

Roth says we should not cavil when "the rule of law happens to produce inconvenient results." But the potential success of a dirty bomb plot is more than just an "inconvenient result." And it is a result not worth risking when, thanks to another applicable set of laws, we can protect ourselves against it.

RUTH WEDGWOOD is Edward Burling Professor of International Law and Diplomacy at Johns Hopkins University's School of Advanced International Studies.

Roth replies

Ruth Wedgwood attacks a straw man when she says that I find criminal law "sufficient for dealing with the terrorists." Of course force is sometimes required. And when armed conflict breaks out, as in Afghanistan or Iraq, war rules appropriately apply.

But Wedgwood also wants to invoke war rules in settings far from these traditional battlefields. In her view, the "war against terrorism" is open-ended and global, allowing the U.S. government unilaterally to designate terrorism suspects as "enemy combatants," at home or abroad, and to summarily detain or kill them. That radical proposition jettisons the most basic guarantees of criminal justice, leaving our liberty and our lives protected only by the government's professions of good faith.

Wedgwood trivializes the issue by conjuring up images of "defense lawyer[s] sent to the battlefield," which no one advocates. The real issue is whether suspects are entitled to a lawyer and due process away from the traditional battlefield, in Peoria or Manchester. The Bush administration has decided on its own that they are not. The congressional resolution that Wedgwood cites never addressed the matter.

Wedgwood contends that the U.S. government is entitled to detain Jose Padilla, the alleged dirty bomber, indefinitely, without charge or trial, because another suspect, held incommunicado under "stress and duress" interrogation, has named him. Such "evidence" would never be admitted in a U.S. court of law, let alone establish guilt beyond a reasonable doubt. Yet Wedgwood dismisses these safeguards of criminal justice as unreasonable obstacles rather than recognizing them as essential protections against government overreaching.

If Padilla were really an "enemy combatant," the government need not have detained him; it could have killed him as he stepped off the plane in Chicago. Wedgwood insists that "no one is advocating shootouts at the landing gates of O'Hare Airport." But the Bush administration has never rejected the power to kill "enemy combatants" wherever it finds them, which is precisely the treatment the rules of war allow. If we are uncomfortable applying these rules far from traditional battlefields -- as even Wedgwood seems to be -- the problem lies not in these long-established norms but in the designation of non-battlefield suspects as enemy combatants.

Even summary detention without trial should give us pause. Wedgwood concedes that the U.S. government should "continue to respect the sovereignty of allies and neutrals." But Bosnia and Malawi are two countries where the U.S. government has already seized suspects despite the protests of local courts. Since these governments are hardly part of the axis of evil, Wedgwood is wrong to speak of Washington's "continue[d]" respect for their sovereignty.

Some Americans may take comfort in the fact that most terrorist suspects to date do not look like them. But exceptions to the guarantees of criminal justice, once accepted, can come back to haunt us all. If the government can unilaterally declare a global war without regard to an actual battlefield, there is nothing to stop it from, say, citing the "war" on drug trafficking -- a violent enterprise that kills far more Americans than terrorism -- to summarily detain or kill suspected drug dealers. And one can also imagine "wars" on crime, "wars" on corruption, and so on. Detaching the notion of "war" from a traditional battlefield is easy. But it is much too dangerous to indulge.