Here is the War on Terror, NYTimes- and Legal Affairs-style, meaning: Let’s call it the “Indictment on Terror” and send them all to the International Criminal Court. That’ll show ‘em!
A few random thoughts:
1. Terrorism already is a crime in most civilized states. Moreover, the U.S., like many countries, has very expansive extra-territorial jurisdiction mechanisms for bring terrorists and other international “criminals” to trial. Nevertheless, “the Dread Pirate bin Laden” referred to by Douglas Burgess has been under indictment in the U.S. since the spring of 1998 — i.e., BEFORE the embassy bombings, BEFORE the Cole bombing, and BEFORE 9/11. He, shall we say, remains a fugitive. This is why, for instance, then-Democratic Party presidential hopeful, Howard Dean, fully two years AFTER the 9/11 attacks, had the opportunity to assert that he could not render an opinion regarding what should be done about bin Laden since, in his view, it would be irresponsible “to prejudge jury trials.” Dean has since been chosen Chairman of the Democratic Party, many of whose heavyweights last week expressed outrage at the suggestion by Carl Rove that, after the 9/11 attacks, liberals wanted to respond to al Qaeda by filing indictments.
2. The reason that terrorism is not a crime (or at least not treated as such) in other places, and that the UN can’t seem to agree on a definition, is because the terrorists are not regarded as savages. While this may come as a shock to Burgess & the NYTimes, anyone who watches the proceedings of the UN General Assembly, particularly regarding Israel, has probably noticed that the majority of the 191 or so recognized UN states contend that terrorists are freedom fighters.
3. The thought that China and Russia would alter their behavior toward dissidents if there was suddenly a consensus international definition of terrorism is beyond laughable.
4. The United States has not “flouted its own constitutional safeguards” by maintaining captured enemy combatants. The combatants are aliens captured overseas at wartime and are not among the American citizens and legal aliens (i.e., U.S. persons) who are entitled to constitutional safeguards. Even the Supreme Court, in opening the U.S. courts to habeas petitions by enemy combatants, did not pretend that its ruling (in Rasul v. Bush (2004)) was compelled by the Constitution. Rather, it rested its ruling on the federal habeas corpus statute (28 U.S.Code, Sec. 2241) — which means that if Congress got off its duff and amended the habeas statute statute tomorrow, the terrorists could be foreclosed from using our own courts as a weapon against us in the middle of a war, and the Constitution wouldn’t have a thing to say about it.
5. The United States has not confined terrorists to a status outside the law. The Laws of War, which are older than the U.S., apply. The terrorists are not entitled to protections, UNDER those very laws of war, because they do not comply with them. Granting them legal protections would thus reward them for mass murdering civilians, targeting civilian infrastructure, not wearing uniforms or carrying their arms openly, etc.
6. The ability to treat terrorists as criminals or combatants gives governments flexibility in adopting whichever strategy, in any particular case, best effectuates the overall goal of destroying the terrorist networks. Removing the combatant option in favor of a compulsory legal regime — particularly one aimed at proceedings in a court whose authority the U.S. does not recognize, viz., the ICC — would necessarily shift the advantage from the states victimized by terrorists to the terrorists.
7. Leaving aside some important dissimilarities between piracy and terrorism (such as the latter’s motivation by a radical ideology that does not seek money or recognize the states it attacks as legitimate, while the former made treaties and was happily bought off at the right price), Burgess and, derivatively, the NYTimes fail to tell us what rights (such as, perhaps, counsel at public expense, Miranda warnings, etc.) and discovery (meaning disclosure of sensitive intelligence) they would accord to the terrorists in the proposed piracy-analogue legal regime.
8. It wasn’t boatloads of prosecutors President Thomas Jefferson dispatched “to the shores of Tripoli.” It was THE MARINES!