Retired General Wesley Clark and UCLA law professor Kal Raustiala have an op-ed in today’s NYT arguing that the Bush administration policy of treating terrorists as “unlawful combatants” rather than criminals is problematic.
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.
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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.
They’re right, so far as it goes, on both counts. I’ve argued from the beginning of the GWOT that terrorists are not entitled to the honored privileges of soldiers and that legal residents of the United States have Constitutional rights that are not trumped by allegations of terrorism.
Clarke and Raustiala go too far, though, in their conclusion:
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.
Accused terrorists caught on American soil are indeed mere criminals. But most terrorists and plotters are not subject to American law. Nor are most even living in societies apt to comply with extradition requests. So, while the investigative techniques of law enforcement might be useful, arrest and trial are not feasible goals. In those cases — which because of their sheer numbers are far from “extreme” — the military option is likely the only one available.
