Sunday, July 10, 2005

War or Criminal Law in War on Terror?

London 7/7 has again raised the question of whether acting against global terror is best conceptualized, and best conducted, as war or instead as law enforcement.

My own view has long been - since I first wrote about this in the Times Literary Supplement [pdf courtesy of Bard College of that article here, What Kind of War Is It?: Language, law and terror: Policemen or soldiers: the dangers of misunderstanding the threat to America, TLS, No. 5138, September 21, 2001] following 9/11 - is that it is a matter of war in the first place. But it is indeed a different kind of war - a war involving intelligence assets more than most. Law enforcement is not irrelevant, of course, but it is essentially tactical, not the way strategically to conceive the situation; it was, to be sure, how we did conceive the situation throughout the Clinton years and right up until 9/11, and look what that got us.

But this has been hotly contested, of course, since 9/11, and the London attacks put the debate front and center again.

Consider two diametrically opposed articles on this question, each of them intelligently written by intelligent commentators. The first, by Andrew McCarthy, appeared in NRO, here (thanks, Julian Ku at Opinio Juris; see his commentary on it here). It is the "war" view, straightforwardly so. The second is by the eminent British commentator Timothy Garton Ash, in the Los Angeles Times, here, arguing that it is law enforcement, and that British police were correct to describe the sites as crime scenes.

Of course, treating the sites as crime scenes, to be investigated as crime scenes, need not be inconsistent with a strategy of war, a war of intelligence, and using powers and forces not available to law enforcment, either domestically or abroad. What makes it war is the willingness not to be limited solely to the powers of investigation and action that limit police powers. Timothy Garton Ash - unlike so many American liberals - acknowledges plainly that one cannot have one's cake and eat it, too, and that civil liberties and the ability to gather the intelligence necessary both to prevent and defeat terrorist groups present a classic tradeoff of social goods.

I disagree with many of the places where he draws the line. Garton Ash draws the tradeoff by essentially treating the terrorists as people who must be pursued as though they were ordinary domestic criminals, with all the many rights that the United States guarantees even to criminal deviants. That seems to me fundamentally wrong. There is a distinction to be drawn even between ordinary criminals and those who are criminally at war with a free society - those who have made themselves simultaneously criminals and enemies, enemies at war with free society and yet who further conduct themselves criminally in pursuit of that war. We owe something to criminal deviants within out domestic society that we do not owe to terrorists, and it is that something that marks the limit of what domestic policework and domestic criminal prosecution and process can offer.

What does the "war" view strategically offer?

(1) A forward strategy, one which takes the offensive to the enemy, rather than always being reactive and waiting for the strike, then looking backwards in the manner of a 90s style Clinton-era criminal investigation of terror. As one US military blogger remarked, in the matter of war, away games are always better than home games. A criminal law strategy rules out any anticipatory, forward, or offensive strategy out almost by definition; criminal law enforcement in a settled, legitimate, free society is after the fact, not before the fact - and with ordinary criminals, that's how it should be, but terrorists, alas, are not ordinary criminals.

(2) An anticipatory strategy that looks not only to existing forms of terrorist attacks, but looks ahead to what would be far, far, far worse - the combination of terrorist-rogue state-weapons of mass destruction. One may argue over the Iraq war, or see it as a disaster as Garton Ash does, but its aim at preventing what might well have been, under Saddam or his even crazier sons, the fatal combination, was and is not irrational. Again, the criminal law approach, as strategy, cannot even conceive of something so forward looking - conceptually, it looks for the bad guys after the dirty bomb has gone off.

(3) The denial of safe haven to terrorists. The Clinton administration once in a while was willing to use military force against terrorists - in ways that convinced the terrorists, to be sure, that the US was unwilling to act against them and increased their confidence levels immensely. But it was willing to aim the occasional cruise missile at Al Qaeda training camps, at least when likely to be empty. What characterizes the Bush military strategy is not the willingness to use military force against terrorists, but the strategically far more important and far more radical willingness to use military force against regimes that harbor terrorists, to deny them safe haven (and in this, following on Richard Clarke's notable memo while still in government, I include Iraq, as the place to which, according to Clarke, Osama would finally flee).

Put another way, terrorism is typically (though not entirely) a logistical raiding strategy that targets civilian morale as a logistical necessity in democratic warfighting. As with all logistical raiders - of which guerrilla warfare is a prime example - their ability to fight longterm is enhanced enormously by the ability to retreat to safe bases, bases which cannot be counter-attacked for reasons of technology, geography, or politics. Defeating guerrillas or terrorists usually involves denial of safe havens, and in that regard this war is no different from others. It is the placement of this often politically awkward fact in the front line of policy that the Bush administration has made its stand. Criminal law enforcement cannot begin to contemplate this - conceptually, it has no place in criminal law.

These three are examples of the strategic thinking about the war on terrorism as a war that cannot be conceived within the paradigm of law enforcement. There are others - the fundamental political bet occasioned by the Iraq war, for example, that democracy can be a tool, a wedge, against terror.

And yet this is no besmirchment of the virtues of law enforcement. Law enforcement is about the use of force in a settled, legitimately ordered society, dealing with social deviancy within a society whose fundamental legitimacy is not at issue. Ordinary domestic criminals are deviants from that fundamentally legitimate society and its norms; they do not challenge that fundamental legitimacy even when they act criminally. Terrorists are different; they are a challenge to that legitimacy itself. Challenges to the fundamental legitimacy of a society cannot really be understood or conceived by law enforcement, which presumes that legitimacy precisely in order to be able to restrict and curtail the violence which it is legally entitled to use to maintain public order and peace. Garton Ash says many important things about the virtues of law enforcement, but - wrongly believing that the transnational religious terrorism of Al Qaeda can be modelled on the geographically local terrorism of the IRA - ignores these fundamentals.

(A good place to look for academic discussion of these distinctions is the Journal of Terrorism and Political Violence, edited by my old professor and mentor David Rapoport, and on whose editorial board I've been for a long time.)

All that said, the war on terror is a different kind of war. I recommend highly the short essay by the ever remarkable University of Texas professor Philip Bobbitt in today's Sunday New York Times Week in Review section (behind a registration wall). As he says - writing from London where he was living on 7/7 - this is a war whose strategic concepts shade quickly into political grand strategy, and in which intelligence plays a vital role. Obtaining that intelligence from a local population that has radical terrorists in its midst does require that intelligence officers and police officials have legitimacy with that population, and that requires a belief that the society itself is fundamentally legitimate and that its procedures for dealing with its citizens are fundamentally fair and just - in that Garton Ash is not wrong and is right to demand it.

I also recommend Julian Ku's comments on how the war on terror itself has to adjust to the requirements of intelligence, here.

1 comment:

Anthony Dworkin said...

I read this post with interest since I'm writing on this subject myself just now for the Crimes of War website (

I agree entirely that the threat to the US from al-Qaeda as displayed on 9/11 was too great to be met with the conventional tools of law enforcement alone. But equally I can't accept the idea that there could in any meaningful (i.e. non-rhetorical) sense be a "war" between the US and al-Qaeda since war has always been understood as a formal relationship between two equal parties with corresponding rights and responsibilities.

Is there a middle way between these two extremes? It might help a little to break down the claims that proponents of the "war" view use to back their case.

Here there is a curious aspect of Ken Anderson's argument: all the strategic advantages he ascribes to the war view have been endorsed and vigorously pursued by the British government which has at the same time resolutely refused every opportunity to say it is at war with al-Qaeda (let alone terrorism more broadly).

1) A forward strategy: the UK government has passed legislation to put control orders on suspected terrorists without accusing them of any crime. To do this it derogated from Article 5 of the European Convention on Human Rights on the grounds that the UK faced a "public emergency" from terrorism.
2) An anticipatory strategy: no one has been more consistent that Tony Blair in talking of the importance of preventing weapons of mass destruction falling into terrorist hands, and of course he backed the war against Iraq for precisely this reason.
3) The denial of safe haven to terrorists -- well, Britain was a full backer and supporter of the attack on Afganistan -- again for precisely this reason.

All these strategic tools are not at all dependent on any notion that there is a "war" with terrorists -- only that the nature of the terrorist threat is "real and existential" (Blair's words).

There is another argument for the importance of the war paradigm that is sometimes made: that it allows you to treat someone as an enemy simply because of his affiliation with an enemy group, not based on any individual guilt. This is of course meaningful in a conventional war with a regular army but is close to meaningless in the case of global terrorism -- as Judge Green's example of the little old lady in DC District Court showed. A membership criterion that is precise enough to avoid such obviously unacceptable outcomes would probably collapse down to the kind of evidence that could be needed to obtain control orders or similar measures on an individual basis.

Against this, what are the dangers of the war paradigm? Principally, as implied above, that it supposes a situation where the enemy threat is clearly bounded in time and represented by a clearly defined group of people. The dangers of allowing the government to detain indefinitely (or in theory shoot to kill) individuals who in most cases dispute the grounds on which they're being held is simply not acceptable in a society that regards itself as ruled by law.

Finally, I'm not sure I see the force of Ken's argument about terrorists challenging the legitimacy of the society. After all the same would be true of an anarchist political agitator. The argument must also assume that they are in a position to threaten the security of the society whose legitimacy they reject.

It is true and important I think that al-Qaeda marks the emergence of terrorism that can pose a threat to national security in line with the threat posed by other states in war. That is why I agree that states harbouring the terrorists or supplying them would be legitimate targets for wars of self-defence. But I can't see why the threat can't be adequately handled by a combination of contained wars against countries that support terrorism and (where absolutely necessary) public emergency measures at home that are nevertheless still in line with the domestic rule of law.