New York Times OP-ED
Why Terrorists Aren’t Soldiers
By WESLEY K. CLARK and KAL RAUSTIALA
Published: August 8, 2007
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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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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. If we are to defeat terrorists across the globe, we must do everything possible to deny legitimacy to their aims and means, and gain legitimacy for ourselves. As a result,
terrorism should be fought first with information exchanges and law enforcement, then with more effective domestic security measures. Only as a last resort should we call on the military and label such activities “war.” The formula for defeating terrorism is well known and time-proven.
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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. Almost 50 years ago, at the height of the cold war, the Supreme Court reaffirmed the “deeply rooted and ancient opposition in this country to the extension of military control over civilians.”
A great danger in treating operatives for Al Qaeda as combatants is precisely that its members are not easily distinguished from the population at large.
The government wields frightening power when it can designate who is, and who is not, subject to indefinite military detention. The Marri case turned on this issue. Mr. Marri is a legal resident of the United States and a citizen of Qatar; the government contends that he is a sleeper agent of Al Qaeda. For the last four years he has been held as an enemy combatant at the Navy brig in Charleston, S.C.
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Cases like this illustrate that in the years since 9/11, the Bush administration’s approach to terrorism has created more problems than it has solved. 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.
We train our soldiers to respect the line between combatant and civilian. Our political leaders must also respect this distinction, lest we unwittingly endanger the values for which we are fighting, and further compromise our efforts to strengthen our security.Wesley K. Clark, the former supreme commander of NATO, is a fellow at the Burkle Center for International Relations at the University of California at Los Angeles. Kal Raustiala is a law professor and the director of the Burkle Center.
http://www.nytimes.com/2007/08/08/opinion/08clark.html?_r=1&oref=slogin