In today’s New York Times General Wesley Clark and law professor Kal Raustiala offer their perspective on the war on terrorism (see here). They argue that the current administration’s policies have blurred the line between soldier and civilian. They then argue:
Treating terrorists as combatants is a mistake for two reasons. First, it dignifies criminality by according terrorist killers the status of soldiers….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…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.
Professor Bobby Chesney of Wake Forest responds:
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.
As does Professor Kenneth Anderson of American University here:
Well. Kal Raustiala is one of the brightest international law scholars around, and I have enomous respect for him, 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 (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.
Professor Anderson then goes on in his typically thorough style to deconstruct all of their arguments, which I won’t attempt to reconstruct here.
However, I will post a few of my favorite “zingers” fired off by Professor Anderson:
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.
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?
Professor Chesney and Professor Anderson seem to have the better of the argument, and both posts are worth checking out!
