John Bellinger, the top legal advisor for the Department of State has an interesting piece discussing the legal background for calling someone an unlawful combatant — it isn’t a term invented just for the Global War On Terror, but a term that has a long legal history.
Prof. Ken Anderson of American University further examines the question and determines that what’s needed is a new kind of law that takes into account the fact that terrorism is neither a criminal act nor an act of war — but something that is sui generis and requires a different approach than either those found in criminal law or the conventional laws of war. (Anderson seems to be making the same general argument as Judge Richard Posner in his book Not A Suicide Pact.)
That approach seems like the right approach. We simply cannot treat terrorism as a criminal problem — al-Qaeda isn’t like the Mafia. The Mafia tends not to crash civilian airliners into buildings, nor is Tony Soprano trying to get his hands on nuclear weapons. Criminals may cause terrorism, but their goal is usually less grandiose than causing mass civilian casualties. For that matter, fighting terrorism isn’t like fighting state actors. Terrorists don’t wear uniforms, they don’t discriminate between combatant and non-combatant, and they don’t follow any of the rules of civilized warfare. They’re a unique threat that requires states to take unique measures to fight them.
The problem with the whole debate about civil rights for terrorists is that it tries to shoehorn this unique threat into either the law of criminal conduct or the law of war when it is neither of those things. The Geneva Conventions were not designed to protect states against stateless actors, and trying to fit al-Qaeda terrorists into its framework grants them far more protection than are rationally justified. Conventional wiretapping laws don’t fit when you have terrorists trying to exploit modern communications technology to plan mass-casualty attacks.
I’m certainly not saying that the Bush Administration has it right — there is going to be a long period in which approaches are tried and rejected before something workable emerges. The problem is that the critics of this war aren’t really interested in constructively engaging the problem as much as they’re interested in scoring political points. This war is, and should be, larger than temporal political gain, yet the discussion is largely about politics rather than substantive law. Until that changes, the discussion will continue to generate more heat than light.