Counterterror Schizophrenia
By Jim Hanson March 23, 2010Region: North America
Topics: Emerging Threats, National Preparedness
Our counterterror policy is suffering from a self-inflicted case of schizophrenia. We cannot seem to decide whether we are fighting a war against an implacable enemy sworn to our destruction or policing the world to capture criminals who occasionally commit violent acts. Our current policies are an incoherent mix of both.
Take the case of al Qaeda Christmas bomber Uma Farouk AbdulMutallab. After 9/11 Congress overwhelmingly passed an Authorization for Use of Military Force (AUMF) which essentially put the United States at war with al Qaeda. This group trained him, equipped him with a bomb and sent him on his way. Their general incompetence saved us from having several hundred lives snuffed out above Detroit, but nonetheless they attempted an act of terrorist sabotage and murder. When the plane landed Abdulmutallab was detained and less than a day later read his rights and given a lawyer. He now awaits trial in civilian court.
During World War II the Germans sent eight saboteurs to attack our wartime industries. They were caught, given short military trials and sentenced to death for violations of the Laws of War. They had no civilian lawyers and were treated as unlawful combatants. What makes the case of AbdulMutallab any different?
Let's use him as an example for another inconsistency in our counterterror policies. When he was captured he was granted all the rights under the Constitution and our judicial system of an American citizen. He was caught in the act of committing terrorist sabotage and was a member of a group our Congress had authorized military actions against. Previously he had trained in Yemen with al Qaeda learning, not quite well enough, bomb-making and employment. Previously we have conducted air strikes there to kill known terrorists. If we had identified him prior to his departure for our shores it is possible he could have been targeted and killed, or even died as collateral damage as we took out one of his compatriots.
That is a strange dichotomy. If located overseas, an individual member of al Qaeda can simply be killed out of hand, no charges, no lawyer, no trial, just a Hellfire missile bringing sentence. But if he attempts to or commits a terrorist act and we capture him he is suddenly imbued with all the rights and privileges of an American citizen. What changed? Why does he become a protected class simply because he made it to our soil?
There is good reason for us to use targeted killings by drone aircraft to eliminate terrorists that we can locate and identify. It is often impossible to plan and execute a raid to capture them in the limited time windows available. To allow them to escape when we can take them out is to put innocent lives at risk. Terrorists operate outside any laws and treaties and even common decency and they represent an ongoing threat to our country and citizens. We have the right as a nation state to take actions against those who plan or commit terrorism. But we must ensure we do so in a coherent fashion. We can't have one set of rules for operating against them before capture and a second that comes into play if we detain them. We cannot treat them as enemies of humanity in the field and common criminals in custody.
We run the risk of exposing ourselves to charges of extrajudicial killing if we follow two standards. We cannot use the criminal defendant standard to justify raids and air strikes to eliminate terrorists in the field. Therefore we must not use it when we capture one anywhere on Earth. If they deserve a civilian trial when captured, how can we say they deserve no due process in the tribal areas of Pakistan? We must maintain that they are not due access to our judicial system. We should treat them just as President Roosevelt did the German saboteurs and try them as unlawful combatants.
The Military Commissions Act of 2006 with amendments in 2009 was crafted to deal with just this situation and provides the proper venue for trials of those who belong to a much lower class than common criminals. The act was a specific response the case of Hamdan v. Rumsfeld where the Supreme Court held that a previous act developing commissions to try terrorists violated parts of the military justice system as well as Article 3 of the Geneva Conventions. Congress and the Executive branch worked together to fix those deficiencies and the current act is the result of that cooperation. It allows us to maintain a consistent position with regards to the terrorists and does no harm to our policy of targeted strikes for those we cannot capture. Terrorism is a crime against humanity and should not be tried, nor should it's practitioners, by a judicial system that does not contemplate that.
Jim Hanson served in 1st Special Forces Group and now is Director of the Warrior Legacy Institute
