Crime, War, and Punishment: No Easy Paradigm for Counterterrorism Work

Continuing conservative America’s latest trend — selectively remembering everything that happened before January 20, 2009 — RedState’s Erick Erickson today excoriated President Obama for daring to try the Christmas Day bomber, Umar Abdulmuttalab, as a criminal, because these proceedings will entitle him to a lawyer, and the right to reach a compromise with prosecutors through a plea bargain. According to Erickson,

Bush decided to send foreign terrorist enemies to GTMO for questioning by the military and, in a few cases, to be water boarded to get answers.

Sure. But Bush also saw to it that Richard Reid, the “shoe bomber,” whose situation most closely matches that of Mr. Abdulmuttalab, was tried in federal court and sentenced to life in prison without parole, where he remains to this day.

RedState distorting history isn’t new, and it isn’t really that exciting. But the question of whether we should try terrorists as criminals is interesting, and deserves an answer. The issue is essentially this: what paradigm should we use to fight terror? The warfare model, where detainees are treated as prisoners of war (or less), or the crimefighting paradigm, where detainees are entitled to the full protections of the criminal system?

Erickson’s fault, one duplicated by players on the right and on the left, is assuming that there must be one easy answer. There can’t be. Facts on the ground in Afghanistan most closely match a real shooting war — even if the enemy isn’t necessarily a state actor, day-to-day life comports with a traditional state of war. Accordingly it’s quite natural to expect that, on the battlefield, soldiers will (and should) shoot first, and detain prisoners with something less than the protections afforded criminal defendants.

On the other hand, settled law prevents the warfare paradigm from operating on American soil. In Boumediene v. Bush, the Supreme Court held that terrorists must be afforded some level of due process, depending on the exigencies of their particular situation, but always entitling detainees held within American sovereign territory to seek a writ of habeas corpus, or a similar instrument. Similarly, since President Lincoln’s time, and the Posse Comitatus Act, the army has had no law enforcement power on American soil. Violations of American laws on American soil are criminal acts thats, when the harm terminates or is prevented, must be redressed within the crimefighting paradigm.

To date, the crimefighting paradigm has proven quite effective to address problems like Mr. Reid, and Mr. Abdulmuttalab. Erickson assumes that lawyers and plea bargains will result in acquittals, or the release of the accused terrorist — but this assumption betrays a fundamental mistrust of the rule of law. The outcome of a criminal trial is committed to the discretion of the people (through the prosecuting attorney) and the court. The defendant plays a part, but he does not determine his own fate. Defense lawyers can offer plea bargains, and make arguments, but courts and prosecutors must accept both before either can matter. Erickson’s interpretation reads these safeguards out of the process, and treats lawyers as “get out of jail free” cards.

I expect that opinion bleeds over into a distrust of criminal law generally. If that’s the case, we may query to what extent Mr. Erickson, himself, believes in his country.


  1. Not to mention that criminal convicitions take the wind out o fthe sails of terrorists who claim they are “soldiers” fighting a “holy war” against America. Hard to be a martyr when you suffer the same fate as a common thief.

  2. I see a few problems with your description of this as a problem so complicated that the answer from the left – inalienable rights are inalienable rights, dammit – is too easy.

    Firstly, what was the POW treatment meant for? In principle, for deciding how to treat 100,000 enemy soldiers captured after a battle. Of course you do not have the resources to try all these guys, nor the resources to lock them away, especially while you must concentrate on winning a war. In addition, you may not even have any jurisdiction over them, especially if you are the aggressor. You also cannot simply release them because they will be forced by their country to join the army again even if they do not want to. The paradigm of treating POW’s, Geneva convention included, is simply meant to keep you from shooting them all after they have surrendered so as to save resources and trouble. What you have in Gitmo etc. are, in contrast, on the one hand a comparatively low number of persons that could be tried and locked away easily, and on the other hand not soldiers, but plain criminals (such as an airline terrorist) and in some cases obviously innocent civilians sold to your military for a few bucks by the local Afghan warlord.

    In addition, the treatment of POW’s is in principle understood to last until a peace treaty has been drawn up. It is generally considered to be a bit, let us say, uncivilized to keep them twenty years longer, as the USSR did with many German prisoners (although some desire for redress in the form of forced labor might be understandable after losing millions of civilians to the barbarians of the Wehrmacht). Now when does the war on terror end? You could unilaterally declare victory at some point, okay, but it would be a bit optimistic to expect individual terror acts to stop after that, and there is simply no other side to sign a peace treaty with. We will probably have islamist terror until Islam is extinct, which will not happen in the foreseeable future. Again, is it under these circumstances just to apply a lock-them-up-without-trial paradigm to some terrorists until they die of natural causes that was meant to apply to enemy soldiers for two years or so?

    Lastly, it could be argued that treating war as just another crime would be the end goal of increasing civilization of the world anyway. To paraphrase Terry Pratchett (as per his character Vimes in “Jingo”), it is a crime: breach of the public peace, for starters. The problem is only that there is no judge and jury for countries. But in a truly civilized world, there would be no thought of treating anybody as a POW – either they can be sentenced, or you have to release them. All else is barbarism.

    1. What would you convict a POW for? Participating as a soldier in a lawful war is no crime.

    2. Not now, it isn’t. I am saying that criminalizing war would be the perspective for increasingly civilizing humanity. In ancient times, we simply clobbered our neighbors to death and stole their wives and cattle. Then we had to invent justification such as “this land originally belonged to us” or “our laws of inheritance say that our branch of the family must have the french crown”, or you had to direct your aggression towards infidels or savages, otherwise your neighbors would be horrified and unite against you. Today, even a powerful country needs rather humanitarian masks to justify a war, such as “anti-terrorism”, “defense of democracy” or “avoid a genocide”, even if that is sometimes invented – but the point is, “we are allowed to invade Iraq because they aren’t Christians” does not cut it any more and everybody would be horrified. And usually people expect you to wage war in the framework of a UN action.

      Just extend this trend into the future and you see what I mean. What makes a lawful war has been reduced more and more, not least because of the realization that as much war as possible should be avoided. It may take 50 or 500 years, but there may come a time when war between two countries does not exist any more, only police actions of a world council against rogue nations. Of course, no guarantees. We can also fall back into tribalism if the right kind of people get their way…

    3. That would assume a world system in which the concept of national sovereignty has been suspended, though – that is, in which there exists a single world government which claims the crucial monopoly on violence for itself. I’m not sure that would be desirable, and it is certainly not realistic in anywhere close to the near future.

      1. Unrealistic in the near future, yes. Less desirable than wars, how? That is the same anxiety of losing your sovereignity that our cavemen ancestors had to go through when forming the first civilized communities. For me, that one worked out.

      2. I don’t really see it as a serious threat to national sovereignty when what it primarily concerns is who you can shoot a missle at. Nations would still govern themselves. In fact, war could easily be considered a greater threat to national sovereignty than a world government.

        Besides, larger nations is only a natural progression as spheres of interest become larger. Imagine far into the future when we have interstellar travel and have colonized many planets or made contact with other civilizations. I doubt Earth will continue to be carved up in tiny autonomous nations without some unifying planetary government to represent Earth interests.

      3. A political entity that answers to a higher entity on as crucial a policy area as national security is pretty much by definition not a sovereign state. And for Max Weber at least, possessing a monopoly on violence is the #1 necessary condition for sovereignty.

        As for why a world state would be undesirable, I think it would be far too large and inefficient, and the decision-making process would be too far removed from the ordinary people. Besides, people like to govern themselves – just look at how many of our present-day states have problems with ethnic or regional independence movements.

        So basically, I think both the establishment and the continued existence of such an entity would involve a lot of precisely the violence that you hope to avoid. A relatively stable and interdependent multipolar international system is far preferable, and I think that’s what we’re already beginning to see now and which will continue to evolve in this coming century.

        1. A relatively stable and interdependent multipolar international system is far preferable.

          You know, a name for this could be “government.” You’re basically talking semantics. We have the EU, the UN, and the United States as examples of different ways that a collection of smaller geopolitical entities can interact with each other through an organizing body that may be said to govern. Federation or confederation.

        2. No, I’m talking political science, and there is (if you’ll pardon the slight pun) a world of a difference between a federal state and a multipolar international system. Sovereignty is still the key here – the constituent member states of a federation are by definition not sovereign, but the federation as such is.

        3. I think Kris got the point: states increasingly lose the sovereignty as far as bombing whoever they like goes, but they can well keep the rest – I am not suggesting a “world government” should regulate how long bars can be open or what the minimum wage should be in all countries of the world.

          To use again the people instead of countries-metaphor, a state that forbids its citizens to kill each other (even for revenge) also does not decide how they decorate their kitchen or invest their salaries.

        4. It just doesn’t work that way. A state is either sovereign, or it is not – and one that is not free to set its own national security policy is most definitely not.

          Look at it another way: If you talk about outlawing war, that necessarily entails the existence of some sort of legislative power which can pass such a prohibition, an executive power which can enforce it, and presumably also some sort of judicial power which can determine what is and is not an illegal war. Once you have these institutions, you have a sovereign state. And since by definition, no sovereign state can exist within the territory of another, it must necessarily be the only one – so if we want this to function on a global state, it’ll be a world government, and the only sovereign one.

          It’s just like the United States. The individual states have extensive leeway in legislating for their own internal affairs, but they are not sovereign, because they’re forbidden from maintaining permanent armies and navies, from waging war and a whole range of other activities, and because there exists a superior level of law which supercedes state law on certain issues.

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