I normally agree with Mark Kleiman–his views are, after all, reality based–but I have to take issue with this post on two grounds.

Dr. Kleiman argues that Taliban and al-Qaeda fighters, whether or not in uniform, are prisoners of war, and the US Government may therefore keep them incarcerated for the duration of hostilities.  He rightly points out two problems with this: that some prisoners were not combatants at all, and that hostilities have no apparent end point.  But his central argument remains: that we are at war with terrorist organizations, and we may therefore hold captured supporters of these organizations until hostilities cease to keep them from returning to the battlefield.

First, I would challenge the assumption that a state of war exists between the United States and al Qaeda.  Congress made no such declaration (a careful reading of the September 18, 2001  resolution authorizing military force suggests that Congress intended only to facilitate compliance with the War Powers Resolution), and non-state actors like al Qaeda cannot by definition commit acts of war, nor can they be “at war,” any more than a drug cartel could, for example, or Doctors Without Borders.  We would look unkindly, I think, on a state detained captured Red Cross indefinitely as prisoners of war on the grounds they they supported an insurrection against the recognized authorities.

Non-state actors can, however, commit crimes, like the murder of three thousand innocent people.  The hiding or protecting of such criminals by state authorites may justify declared or undeclared war against that state–as protection of drug lords might call for military operations against Columbia, or Mexico–but murder is not war, and states cannot by definition wage war on criminal gangs.  Just because we use military forces to disrupt their criminal activity or capture them does not make these operations a “war.”

Unless we want to confer on them the authority to wage war.  My second challenge is that our insistence on characterizing terrorist operatives as “combatants” places them on an equal footing with sovereign states with respect to the use of violenct to achieve their goals.  The concept of sovereignty evolves, largely because of the actions of states (see e.g., Martha Finnemore’s The Purpose of Intervention, and Stephen Krasner’s Sovereignty: Organized Hypocrisy).  If powerful states like the US treat organized terrorist groups as quasi states by fighting them under the rubric of “war,” we run the risk of legitimizing them.  Few would argue that only a formal declaration creates a state of war, but accepting the  idea that such a state can exist between states and non-state actors implies that actors other than states can legitimately use violence to achieve its goals.

Every conflict carries a normative component: each side will attempt to demonize the other, both to rally its citizens to the cause and create a justification for using extraordinary (and often bystander unfreindly) methods.  Our normative efforts with regard to al Qaeda have heretofore depended on ethnic and religious arguments.  We  should instead delegitimize their efforts by characterizing them as the criminals they are, and treating them so.

This could have two ancillary benefits: it dissacoiates their claims against individual states from their methods, stigmatizes their activity.  By classifying them as criminals instead of quasi states capable of making war, we place them outside of the international system and make recruiting more difficult.  It also shows the world that we can manage an international violence problem using established legal systems, making other states less suspicious of our motives and more willing to negotiate the expansion of those systems (since others will be more likely to use them to solve their own conflicts).

Classifying al Qaeda operatives as wartime combatants so we can detain them indefinitely would seem to solve some difficult criminal justice, jurisdiction, and secret evidence issues by simply pushing them to the side.  But it legitimizes al Qaeda by confering upon it at least one component of sovereignty: the power to make war.  By characterizing our fight with them as a “war,” we have taken the first step toward making actors like them members of the international system.  We should shut them out instead, and treat them as criminal gangs.

Tags: Terrorism