Wesley Clark and Kal Raustiala in the NYT on terrorists as criminals, not combatants

(Update, August 25, 2007. I have pulled up Alan Kaufman's very thoughtful response from the comments into the full post, at the end, and I highly recommend it. Alan, thanks!)

Wesley Clark and UCLA international law professor Kal Raustiala have an op-ed in today's New York Times, August 8, 2007, on why terrorists should be treated as criminals, not combatants. International Law Reporter blog has it, here.

Well. Kal Raustiala is one of the brightest international law scholars around; I have enormous respect for him and it troubles me to have to disagree, but this piece does not move me. It sets up a false dichotomy between 'criminals' and 'combatants', and then argues that the Bush administration has treated terrorists as combatants whereas it should treat them as criminals. This is an argument that has been going on since approximately September 12, 2001 - it is more than a bit of a dinosaur, I would have thought - and it surprises me that anyone would still be wanting to have it in these terms. More to the point - you can argue for pretty much all of the reforms of the system that the op-ed calls for (some of the important ones of which I in fact support) without having to go back and make claims about the fundamental wrongness of the administration's legal judgments about the applicability of the laws of war.

The cutting edge of discussion about counterterrorism policy today is, for example, Jack Goldsmith and Neal Katyal's joint call for a national security court, or Benjamin Wittes' call to have Congress legislate a comprehensive system, or my call with Elisa Massimino to civilianize the system - that's where the discussion is at, so far as I can tell, and it is noteworthy for being fundamentally forward-looking, rather than backward-looking. It's not looking to score points about the past five years, but to try and figure out how to go forward now, under current conditions. There are plenty of profound, sharp, and even bitter disagreements about that, even among the people I have just named, but it is a good deal more concerned with a new administration that with the last one.

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Combatants and criminals, a note.

The precise legal category for Al Qaeda terrorists is "unprivileged belligerent," by reason of the fact that the group of which they are a part - and note, under the Third Geneva Convention, it is the behavior of the group, not merely the individual, that determines status - systemtically violates the laws of war and so neither it nor its individual members qualify for the POW protections of the Third Geneva Convention. That does not mean these individuals do not have a status, nor does it mean they cannot also be criminals or suspected criminals; they have a status, which is unlawful combatant. A combatant is someone who takes active or direct part in hostilities, and an unlawful or unprivileged combatant is one who takes active or direct part in hostilities but has no legal right to do so, in the case of Al Qaeda by reason of its systematic violation of the laws of war.

The consequence is that Al Qaeda terrorists are both combatants and criminals. There are plenty of issues to debate here, but what is so hard about this? Why insist, against the accepted categories of the laws of war, that it is either/or, when in fact the answer can sometimes be both? (Although my views have shifted on whether we should continue to use a war paradigm as the legal touchstone since 9-11, my basic view on the distinction of "criminals" and "enemies," stated in this immediate post 9-11 article still holds.) Why should anyone accept the op-ed's claim that to treat terrorists as combatants somehow accords them honor as though soldiers? I am not aware of people very much thinking that these days - perhaps I am mistaken, who knows? - and it does not follow as soon as one accepts, as the law does, that there are combatants who are also criminal, criminal in the very nature of their combatancy, unlawful belligerents, but that they still somehow have some part of a soldier's honor because they are an unlawful combatant. It seems to me a false dichtomy leading to a straw man.

The reason, it appears from the rest of the op-ed, is that Clark and Raustiala are concerned about the wide powers available to the executive to determine that someone is an enemy combatant and unprivileged belligerent, on the executive's sole say-so, to hold the person however long it likes without legal recourse to the coursts, and on no charges or criminal trial or conviction. Yes, these are all enormous issues, partly of international law and partly of US domestic law. But addressing those questions does not require moving to the position that combatant and criminal are either/or. The op-ed's complaint might be said to be that the Bush administration seems to believe that the president having designated someone as an enemy combatant settles all legal questions - of course it doesn't, but overreaching does not render the distinction itself legally invalid. The vital constitutional and human rights question of whether, for example, a US citizen in some US city - perhaps part of an Al Qaeda sleeper cell or perhaps not - can be treated solely on the designation of the president as an enemy combatant has virtually nothing to do with the question of whether terrorists should be treated as combatants or criminals.

To be perfectly blunt, at every meeting I have attended since 2001 - perhaps half a dozen - in which Clark spoke about terrorism, he made his centerpiece this point that terrorists are not soldiers and we shouldn't treat them that way; he does not appear to have thought about it any further than that since then. Of course terrorists are not soldiers - meaning by that the armed forces of a state under the Third Geneva Convention. But they might well fall into the category of combatant, if they "take direct [or active] part in hostilities." The question then becomes, what kind of combatant - a legal combatant, or an illegal one, an unprivileged belligerent, under longstanding categories of the laws of war? And what are the legal consequences if the answer turns out to be"illegal combatant" or "unlawful belligerent"? That question is not answered by saying 'terrorists are not soldiers', not even close.

The USS Cole attack, raised an example in the op-ed as an example of the incoherency into which the designation of combatant leads us, indeed presents important questions about how terrorism is legally defined and about who and what is a terrorist, on the basis of the targets they attack. But these important questions are not the ones raised in the op-ed. The op-ed suggests - in my view a straw man argument - that because the administration characterized Al Qaeda members as combatants, and had the attackers limited themselves to the USS Cole attack, solely on a military target, and skipped - well, what? 9/11, the African embassy bombings, the 1993 WTC attack, and a long list more - then they would had to have been treated as legal combatants rather than criminals. The fundamental premise of this argument is from an alternative universe, and a distant one at that. Why on earth are we discussing this?

(UPDATE. I see that Bobby Chesney, over at National Security Advisers, here, has pointed out something that I should have made much more explicit below. I join 100% with Bobby's point:

Among other things, Clark and Raustiala contend that:

"Labeling terrorists as combatants also leads to this paradox: while the deliberate killing of civilians is never permitted in war, it is legal to target a military installation or asset. Thus the attack by Al Qaeda on the destroyer Cole in Yemen in 2000 would be allowed, as well as attacks on command and control centers like the Pentagon."

It seems to me that this particular argument is missing a critical point: attacks on military objectives are indeed permitted, but only when carried out by someone with the combatant's privilege. Insofar as al Qaeda members lack that privilege, their conduct in bombing the USS Cole remains an illegal act of mass murder rather than a lawful act of war regardless of whether the perpetrators are deemed to be subject to military detention in connection with armed conflict.

Bobby is quite right on this point. What I should say, in the discussion below, is that even if you do not meet the definition of being a terrorist under international law, that is not by itself enough to show that you are a lawful belligerent with the combatant's privilege. Being a lawful belligerent is more than merely not being a terrorist within some legal definition. It is a very, very important point and I thank Bobby for making it.)

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The USS Cole attack and the definition of terrorism

But what of the USS Cole attack, in our world, with Al Qaeda is it actually is? There are, specifically, two real-world problems arising from the USS Cole attack and any claim that its perpetrators, under Bush administration standards, would have to be treated as legal combatants. The first is that Al Qaeda, under Third Geneva, article 4, flunks the legal combatancy test as an organization and therefore for its members and their operations. It is a status question for members of the organization, determined, under Third Geneva, by the conduct of the group. You don't get to do the African embassy bombings, and then claim that your attack against the Cole was legal and hence its perpetrators entitled to combatancy protections. That's simply not what article 4, Third Geneva, says. (Check to counterterrorism, UN, and laws of war tags on this blog for further discussion of the Cole problem and the definition of terrorism.)

Second, there is a problem with defining terrorism in the case of the Cole attack and it does raise problems for dealing with terrorism today. The problem is that there is, to this day, no accepted definition in international law. The point was brought dramatically home in the failure of the September 2005 UN reform summit of the General Assembly to achieve agreement on a definition of terrorism as urgently and congently called for by the Secretary General. Kofi Annan, in his preparatory document for the summit meeting, had offered a straightforward definition of terrorism that would be prohibited universally. He had thrown his full weight, his full authority, behind this - and yet it failed because the Islamic conference refused to countenance it. What did it call for? Drawing on the classic combatant/noncombatant distinction of the laws of war, it defined universally illegal terrorism to be attacks upon civilians (with some other language about seeking to coerce a government). The most elementary distinction in all the laws of war - thou shalt not make civilians the object of direct attack - could not manage to get passage in the UN as a definition of terrorism.

That said, however, it bears noting that even if that definition of terrorism had passed the General Assembly, even if it had been adopted in the universal treaty sought by Annan, it would not have solved the Cole issue. And it would not have solved the problem that Clark and Raustiala pin on the Bush administration's designation of terrorists as "combatants," albeit illegal ones.

Why not? Because the Cole attack was not an attack on civilians, but on a miltary target that, if the perpetrators were legal combatants, would be an exemplary military target, in part because of few issues of collateral damage. So, suppose that Bush designated terrorists as criminals under US law as the op-ed desires. Yet if you take international law seriously the way many international law professors tell us to, then you, as defense counsel for the Cole perpetrators, argue that you are at war with the Americans, even as a non-state actor, that there is no accepted definition of terrorist in international law, and that even the one proposed by the Secretary General would not criminalize your actions under international law. The question then becomes whether parochial American law can legitimately reach out to you to treat you as a criminal under a US long arm statute, in a way that international law does not, or whether it is an illegitimate, abusive exercise of American imperial power to treat you as a criminal. This is not a debate America would win in the General Assembly, and if you think it would be different under either Clinton or any Democrat, you have not been following the vicissitudes of the General Assembly.

Whereas by following the path that the Bush administration has trod, you can be treated, as a member of an organization that flunks legal combatancy requirements, as the Bush administration treats them - as both combatants and criminals, which, after all, under US domestic law, is what we actually think. They take "direct part" in hostilities but do so as part of a group that systematically violates the laws of war and hence does not qualify under Geneva Three. Any combatancy they undertake can be treated as illegal. Including that undertaken against targets that, if the attackers were legal combatants, would be legal targets. Why is this so crazy?

If the perpetrators genuinely were the alternative-universe pristine organization that only engaged against US miltary targets, and never targeted civilians, we would have another question - is US domestic law sufficient to criminalize behavior on a long arm basis that is not criminal under international law? The answer to that is almost certainly yes - we and other countries criminalize lots of behavior by long arm statute; the failure of international law to make something criminal does not preclude domestic law from acting. Our allies, and even states such as China and Russia, accept that domestic law can criminalize as terrorism activities that go beyond the proposed international law definition - if only from the self interest that states have, friends of ours or not, in ensuring that non state actor transnational attacks on military forces
can be treated as criminal acts. And this was the response that was given to me by most people I interviewed on the question of attacks on the USS Cole, or on British troops by the IRA, etc., by terrorist groups - the international law definition, even if codified in a treaty, would be treated as the minimum, not the maximum, of what constituted terrorism, and could be supplemented by domestic law.

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Going forward counterterrorism

I support major alterations in the legal structure of counterterrorism. I have spoken to these issues on this blog and elsewhere (see counterterrorism tag), most recently in a short piece in the Fordham International Law Journal, here. What most puzzles me about the appearance of Clark and Raustiala's piece today is that it seems to think that in order to get where it wants to go in reforming counterterrorism policy, it must get there by trashing a longstanding legal concept - unlawful belligerency, illegal combatancy - in the laws of war, and frankly demonizing a Bush administration interpretation of that concept that is very far from implausible under the terms of the Third Geneva Convention.

One may disagree with the policy and the legal application, particularly about whether it should continue to serve as the basis for US policy today, years after 9-11. I agree with parts of what Clark and Raustiala call for in the way of reform of legal categories - I won't go into my agreements and disagreements, but I do think that we ought to move, in detainee treatment, towards a civilianization of the system, as Elisa Massimino and I wrote recently in a joint paper for the Stanley Foundation. What I don't understand - what doesn't make sense to me either as law or policy or, frankly, political strategy - is why they seem to insist that their reforms arise out of fundamentally wrong and egregious application of the laws of war by the Bush administration.

The Bush administration was not wicked or crazy in viewing counterterrorism as war. Nor, having reached that conclusion, was it wicked or crazy in thereby concluding - after having first concluded to thunderous and correct denunciation, note, that the laws of war were not the proper frame for the war on terrorism, and afterwards backtracking to the position that the laws of war did apply after all, as the human rights critics demanded - that it should apply the laws of war to the war on terror. It was not wicked or crazy in using the concept of illegal combatant and unprivileged belligerent, nor was it crazy or wicked in its interpretation of the technical (non)requirements of a hearing under the Third Geneva Convention, article 5, notwithstanding my own sharp disagreement as a matter of policy. (In general, I agree with John Bellinger's views of these controversies, captured partly by his recent June 2007 speech in The Hague, and debated thoroughly over at Opinio Juris in its special guest blogging forum.)

Why do Wesley Clark and Kal Raustiala insist on making an argument for reform and change that seems to rely on the presumed egregious badness of the administration's position on war and the application of war law? Why trash a fundamental concept of the laws of war that has a long history attached to it? Why isn't it enough just to say that as applied was a bad policy then and a worse one now, and that it is time to change it? I can understand that perhaps Clark wants to energize some constituency on the Democratic left and I understand that it plays well within the limited political frame of the New York Times. But within the larger political debate in this country, and within the legitimate and important desire to find ways usefully to reform counterterrorism policy, I cannot see that linking future reform to this analysis of the past helps very much at all. It simply hardens people in their preexisting positions.

(UPDATE. Thinking over this op ed again, it reads to me as though Clark had one thing to say, what he always says about soldiers and terrorists, while Raustiala had a quite different thing he wanted to say about new court decisions in counterterrorism cases and, as the op ed says, the increasing wariness of courts to accept at face value the categories asserted by the administration. I don't think the two agendas quite come together - I don't think it is plausible, if you take the counterterrorism decisions altogether, even on a trendline, to say that courts are concluding that they have to be treated as criminals and not as unlawful belligerents. In the end, we would be further ahead if the NYT had given Kal the space to say what he thinks in a more definitive fashion - as things are, the op-ed leaves things more confused than either one author would be separately. But that's what I would have said if I were the op-ed page editor, and what do I know?)

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Clark and Raustiala:


The line between soldier and civilian has long been central to the law of war. Today that line is being blurred in the struggle against transnational terrorists. Since 9/11 the Bush administration has sought to categorize members of Al Qaeda and other jihadists as "unlawful combatants" rather than treat them as criminals.

The federal courts are increasingly wary of this approach, and rightly so. In a stinging rebuke, this summer a federal appeals court in Richmond, Va., struck down the government’s indefinite detention of a civilian, Ali al-Marri, by the military. The case illustrates once again the pitfalls of our current approach.

Treating terrorists as combatants is a mistake for two reasons. First, it dignifies criminality by according terrorist killers the status of soldiers. Under the law of war, military service members receive several privileges. They are permitted to kill the enemy and are immune from prosecution for doing so. They must, however, carefully distinguish between combatant and civilian and ensure that harm to civilians is limited.

Critics have rightly pointed out that traditional categories of combatant and civilian are muddled in a struggle against terrorists. In a traditional war, combatants and civilians are relatively easy to distinguish. The 9/11 hijackers, by contrast, dressed in ordinary clothes and hid their weapons. They acted not as citizens of Saudi Arabia, an ally of America, but as members of Al Qaeda, a shadowy transnational network. And their prime targets were innocent civilians.
By treating such terrorists as combatants, however, we accord them a mark of respect and dignify their acts. And we undercut our own efforts against them in the process. Al Qaeda represents no state, nor does it carry out any of a state’s responsibilities for the welfare of its citizens. Labeling its members as combatants elevates its cause and gives Al Qaeda an undeserved status.

If we are to defeat terrorists across the globe, we must do everything possible to deny legitimacy to their aims and means, and gain legitimacy for ourselves. As a result, terrorism should be fought first with information exchanges and law enforcement, then with more effective domestic security measures. Only as a last resort should we call on the military and label such activities "war." The formula for defeating terrorism is well known and time-proven.
Labeling terrorists as combatants also leads to this paradox: while the deliberate killing of civilians is never permitted in war, it is legal to target a military installation or asset. Thus the attack by Al Qaeda on the destroyer Cole in Yemen in 2000 would be allowed, as well as attacks on command and control centers like the Pentagon. For all these reasons, the more appropriate designation for terrorists is not "unlawful combatant" but the one long used by the United States: criminal.

The second major problem with the approach of the Bush administration is that it endangers our political traditions and our commitment to liberty, and further damages
America’s legitimacy in the eyes of others. Almost 50 years ago, at the height of the cold war, the Supreme Court reaffirmed the "deeply rooted and ancient opposition in this country to the extension of military control over civilians."

A great danger in treating operatives for Al Qaeda as combatants is precisely that its members are not easily distinguished from the population at large. The government wields frightening power when it can designate who is, and who is not, subject to indefinite military detention. The Marri case turned on this issue. Mr. Marri is a legal resident of the United States and a citizen of Qatar; the government contends that he is a sleeper agent of Al Qaeda. For the last four years he has been held as an enemy combatant at the Navy brig in Charleston, S.C.

The federal court held that while the government can arrest and convict civilians, under current law the military cannot seize and detain Mr. Marri. Nor would it necessarily be constitutional to do so, even if Congress expressly authorized the military detention of civilians. At the core of the court’s reasoning is the belief that civilians and combatants are distinct. Had Ali al-Marri fought for an enemy nation, military detention would clearly be proper. But because he is accused of being a member of Al Qaeda, and is a citizen of a friendly nation, he should not be treated as a warrior.

Cases like this illustrate that in the years since 9/11, the Bush administration’s approach to terrorism has created more problems than it has solved. We need to recognize that terrorists, while dangerous, are more like modern-day pirates than warriors. They ought to be pursued, tried and convicted in the courts. At the extreme, yes, military force may be required. But the terrorists themselves are not "combatants." They are merely criminals, albeit criminals of an especially heinous type, and that label suggests the appropriate venue for dealing with the threats they pose.

We train our soldiers to respect the line between combatant and civilian. Our political leaders must also respect this distinction, lest we unwittingly endanger the values for which we are fighting, and further compromise our efforts to strengthen our security.

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Comment from Alan Kaufman:

Alan G. Kaufman said...

As I sent in response to Dave Glazier's post on 10 August on this issue over at National Security Advisors:

Dave has gotten at what, for me, has always been the central problem or paradox with the "war paradigm" for counter-terrorism operations, and that is this: The term "unlawful combatant," for me, is an oxymoron. To be a combatant is by definition lawful -- even honorable. It is a status, not an act.

Combatants have the privilege to kill, and commensurately, have lost their "right to life." Combatants in armed conflict may intentionally kill and be killed by other combatants.

Combatants sometimes behave unlawfully, in which case they may be tried for their crime, for example murder, for intentionally killing a noncombatant, or other war crimes, such as intentionally attacking protected sites.

But combatant is a status, which is by definition lawful. It is actions, not status that defines "lawful," or unlawful.

"The paradox with the terrorist as "unlawful combatant" model is that it deprives the terrorist of his right to life, while denying him the combatant's privilege to kill. Thus, like a combatant, the so called "unlawful combatant" terrorist may be targeted and killed on sight regardless of whether caught in the act. Like an enemy soldier, he may be lawfully killed in his sleep, or while driving in a car to a meeting. But should this "unlawful combatant" kill a lawful combatant at any time, even while that combatant is attacking his camp, we call it murder. He is not granted the combatant's privilege.

My problem with this result is that it merges the concepts of jus in bello with jus ad bellum. In that model, we do not hold combatants accountable at law for the decision of their state to go to war. We hold a combatant accountable only for his conduct in the war. Even if the declared war is an unlawful one, the combatant is not a criminal for killing other combatants in the prosecution of that unlawful war. His behavior is honorable, even if his state is not. He is a warrior, like the warrior on the opposing side. This has the benefit of maintaining a certain limit on what conduct is permissible in war -- even ones unlawfully or wrongfully begun (which are all of them, depending on which side you are on), by governing the conduct of those doing the fighting.The term "unlawful combatant," on the other hand, makes such a person accountable, not just for his conduct in war (jus in bello) but for the decision of his "state" to go to war. He becomes dishonorable and criminal not just for his behavior in the execution of the war, but for his very participation in it.

This is antithetical to the jus in bello/jus ad bellum construct and to the modern law of war as we have known it. Remove the constraint imposed by jus in bello, and behavior in war can escalate beyond "honorable" bounds very rapidly. It takes us into the dangerous realm of "the end justifies the means." This because it allows each side to say of the other -- they started this war unlawfully, so they do not deserve the benefit of the laws of war -- we can do to them what they may not do to us . . . . This escalates rapidly as each side justifes doing worse to the other . . .This is exactly the evil that the boundary between jus in bello and jus ad bellum seeks to inhibit. Why does this happen to us now?

Because terrorists - the kind we fight these days --do not act for a state. They act for a non-state organization that has declared war upon us. And because we do not consider this particular non-state organization to be a polity like a state --consisting of its citizens yet existing in law also independently of them (similar to the way a corporation is a person in the law, separate from its individual shareholders who are not (usually)individually liable for corporate crime), we hold each individual fighter accountable not just for his conduct in the fighting, but for the decision of the entity itself to go to war against us.

Thus, in this model, a terrorist can never be a combatant -- he can never have the combatant's privilege, because he is individually liable, unlike the true combabtant, for the decision of his entity to go to war. He can never fight with honor, as do true combatants, because he can never be separated from the unawful decision to even make war in the first place. So "unlawful combatant" is an oxymoron. It implies a jus in bello status and accountablility for a jus ad bellum action.And by creating this oxymoronic category of "unlawful combatant" we claim the privilege to kill him -- deny him a right to life -- while denying him a reciprocal combatant's privilege as against our own state combatants.

This is expedient, but is it honorable? And what does it say for maintaining limits on the conduct of war so that it doesn't escalate beyond all human control, to something that we never desired or anticipated (as Thucydides describes of the Peloponnesian wars, or as Lincoln comments on the American Civil War: "Neither party expected for the war, the magnitude or the duration, which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself would cease. Each looked for an easier triumph, and a result less fundamental and astounding . . .The prayers of both could not be answered: that of neither has been answered fully. The Almighty has His own purposes" Or as Clausewitz put it: " . . .war, untrammeled by any conventional restraints, has broken loose in all its elemental fury.")

My own suggestion is that we ought to look at the counter piracy efforts of the 17th and early 18th century as a model for how to bring the force of war and a global effort against a dishonorable, non-state enemy. This is a model based in law enforcement, producing trial and punishment, using warships and honorable combatants to enforce the law . . . yet never for a moment conflating the enemy with a state . . .