Neptunus Lex

In the New York Times today, retired Army General and former presidential candidate Wesley Clark co-authors an Op-Ed on the legal status of “terrorists” with UCLA law professor Karl Raustiala.¬† Having started with their conclusion - that President Bush’s prosecution of the Global War on Terror has made-us-less-safe-at-home-while-creating-more-problems-than-it-solves, the two stack up strawmen atop their conclusion like logs at a Texas A&M¬†bonfire.

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.

To face the reality of our new strategic security situation, we have created a third category between the uniformed signatories of the Geneva Convention on the one hand, people with whom we can expect a degree of reciprocity in the treatment of prisoners in other words, and mere criminals on the other, people bound by no commonly shared assumptions of humanity. It should not have escaped a law professor’s scrutiny that the word “unlawful,” when preceding the word “combatant” also¬†implies a degree of criminality. Indeed, one might almost think it a fundamental distinction, and one which in turn informs what ought to be done with terrorists and other irregulars taken up in the conflict.

One of the complaints often heard against President Bush is that he conflates¬†those who merely oppose our presence in Iraq and Afghanistan with¬†terrorists, that his inability to distinguish between Michael Moore’s minutemen and Al Qaeda in Iraq Mesopotamia betrays his astonishing lack of nuance. Clark and Raustiala go the other way, conceding that they’re all terrorists but¬†implying that we somehow¬†honor those with whom we grapple by granting them a higher status than they deserve:

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.

I find it charming that the General so concerns himself with Al Qaeda’s sense of self-esteem - I’m quite sure they don’t care what we think about them - ¬†even as I stand somewhat amazed at his pre-9/11 assumption set: That combatants, lawful or otherwise,¬†must wear uniforms or else represent the quotidian work of the constabulary.

That might have made sense when he was in charge of NATO, even as the line between combatants and criminals got smudged in Bosnia - at least¬†the Serb murder squads wore militia uniforms -¬†but it reflects little about the world as we now know it. Worse, his conclusion that the solution lies in “law enforcement” is a return to the kind of mindset that prevailed while Osama bin Laden dreamt his little dreams of strong horses, airliners and office buildings.¬†

The pair seem particularly concerned that Qatari citizen and US resident Ali al-Marri has been held by the US military under color of active al Qaeda membership in a naval brig in South Carolina.¬† Among other things, al-Marri’s cell phone had the contact data of an Al Qaeda financier and his laptop computer had files about hacking into US financial institutions with the intent of wreaking widescale¬†havoc. Oh, and there were also¬†technical details concerning the creation of industrial quanties of toxic Hydrogen Cyanide. You know: Like most college students have.

Al-Marri’s case continues to wend its way through the court system - a Richmond-based federal court of appeals has held that he has the right to challenge his accusers and, implicitly, examine both¬†the government’s classified information and sources.¬† But while we are right to concern ourselves when our rights and legal protections are threatened by the very tools the government uses to protect our physical security it cannot be right to expose our most sensitive means and sources of intelligence gathering to public scrutiny in a time when an existential enemy adapts at every turn. And¬†failing to expose those sources, and letting terrorists walk cannot be in our best interest either. The president’s military commissions, as¬†established by congressional legislation,¬†seem a good compromise.

Fighting the enemy on his home turf may not have changed the heartbreaking calculus of loss, but it has changed who is doing the dying and whose furniture it is that¬†gets broken up.¬† Conversely, treating as mere criminals¬†those swept up on a global battlefield - men we now label “unlawful combatants” - will certainly not shame them into laying down arms. It¬†will, however,¬†avail them to an even higher degree than they now enjoy the comprehensive¬†legal protections of a liberal civilization whose destruction is their fondest hope. Hardly “win/win.”

Doing so may sound like progress to the General and his professor, but it sounds like a re-run to me. Perhaps it will play well in White House movie theater of a Clinton/Obama administration.