NOT WAR, CRIMES

By PETER SPIRO
Wednesday, Sep. 19, 2001

As the dust still chokes lower Manhattan after one of the most horrendous tragedies of contemporary history, there have been justifiable calls for retaliation against those responsible for the attacks and anyone complicit in them. The enormity of the attacks has almost inevitably led to war talk, among the people, opinion writers, and political leaders. "We're at war," President Bush remarked on Saturday. "There's been an act of war declared upon America by terrorists, and we will respond accordingly."

But the ultimate nature of the attacks is more akin to crime than to war, and should to the maximum extent possible be addressed as such.

The Limited Likeness to War

Some elements of the episode indeed resemble war. Unprecedented in the history of terrorism, the magnitude of casualties approaches those found in wars. The United States has not since Vietnam lost so many individuals as a result of international conflict; as a one-day toll, we have not witnessed this level of death since World War II.

Many more Americans were killed on September 11 than in three of the nation's five declared wars — the War of 1812, the Mexican War of 1847-48 and the Spanish-American War of 1898 (the other two being the World Wars) — as well as in the Persian Gulf conflict.

Also consistent with calling this war, the perpetrators apparently conceived their attack as one on the United States, as have our wartime adversaries. Finally, the objective of the U.S. response — obliteration of the attackers and their organization — rises to the level of total conflict that the designation sometimes (in World War II, most notably) implies. As Charles Krauthammer writes, "You bring criminals to justice; you rain destruction on combatants."

But there the resemblance ends. As a historical matter, first of all, wars have been fought only against other states or state-like entities. This is true of all the declared wars but also of such conflicts as Korea and Vietnam — which clearly qualified as, and were understood, as wars, notwithstanding the absence of declarations of war.

What about early nineteenth century hostilities with the Barbary Pirates — the one example now cited as precedent for "war" on the perpetrators of the World Trade Center attack? Even that conflict was against an identifiable entity — the principates of Tripoli, Algiers, Morocco, and Tunis — exercising control over territory.

Nor do there appear to be any cases in the practice of other nations in which war has been declared against a non-state entity. Indeed, the very practice of declaring war has fallen out of international favor, with not a single example of a war declaration by a mainstream state since the adoption of the United Nations Charter prohibition on the use of force.

That war assumes another nation, or nations, as adversary is further reflected in the domestic legal consequences of a declaration of war. Most notably, a declaration of war empowers the President to detain enemy aliens and to suspend commercial relations with and to seize the assets of enemy entities.

The U.S. Code defines "enemy" as the governmental components, corporations or other business entities, or nationals "of any nation with which the United States is at war." According to statute, treason can only be committed by giving aid and comfort to enemies so defined, so it would have no application in sort of war contemplated here.

War Against Whom?

These may seem like technical objections to the use of the term in framing our response to the attacks. One might expect, however, that they played some role in Congress' decision not to declare war. Moreover, characterizing this conflict as war is inapt not just at a technical level, but also at a more abstract level as well.

The term "war" (applied formally or not) has always been used to describe armed conflicts between peoples. Under international law, peoples have been defined in terms of governments and nationality — with the definitions usually reflecting some underlying ethno-cultural identity.

One might also allow the term to be applied to conflicts defined in terms of religion or ideology. Such usage makes sense, for example, of applying the phrase Cold War to an ideological conflict. But the attack by bin Laden and the response to it doesn't qualify in these terms, either.

Bin Laden's organization appears to represent nothing more than a terror band of (at most) a few thousand individuals. It does not represent a people defined in any other way. The association with Afghanistan reflects little more than that nation's weakness; and bin Laden does not appear to have any legitimacy in mainstream Islam.

Unlike in real wars, there is no "us" and "them" in this context. Every nation in the world save Afghanistan and Iraq (already a de facto enemy) appears to have offered words of support for the United States; "We Are All Americans" run the headlines in the international media. And the strong cautions from American leaders against fingering Muslims present in the U.S. for the attack, highlighted by the inclusion of Islamic clerics in national memorial services for the victims, proves the absence of a religious axis to the conflict.

Indeed, to call this a "war" may dignify the adversary in a way that it hardly deserves. Up until the twentieth century, war was conceived almost as a contest, one in which questions of right and wrong were irrelevant. Even in World War II, we treated some of those who fought for Germany as honorable soldiers deserving of respect for service done in the name of their people. Surely no one who fights for bin Laden merits any such regard.

Better To Call It Crime

The perpetrators of the World Trade Center attack are not enemies. They are criminals, and they are better treated as such. This may require some constraint in our response, but it will ultimately serve us better.

It is not difficult to conceive of the killing and destruction at the Trade Center as criminal conduct, albeit of monumental proportions. One has only to contemplate the same conduct, undertaken by American citizens — a not implausible scenario that might have been carried out by the only somewhat better educated and financed likes of Timothy McVeigh. Had Americans been the culprits, we presumably would not be characterizing the response as war.

Indeed, it was only a few months ago that two bin Laden associates were convicted (and handed life sentences) for their involvement in the 1998 U.S. embassy bombings. The 1989 arrest, prosecution, and conviction of Manuel Noriega on drug trafficking charges also serves as a useful model. Better to treat our response to the attack in this mode.

How the Label Makes a Difference

There are practical implications to conceiving the response as law enforcement rather than as war. First, the U.S. must avoid inflicting so-called collateral damage. That means no bombing of civilian targets in Afghanistan. Even in the wake of the horrible casualties in New York, the international community would not stand for indiscriminate attacks on civilian populations, and for good reason. The people of Afghanistan have little responsibility for bin Laden's conduct.

Second, we should aim to capture bin Laden rather than to kill him, if at all possible. Our sense of vindication will — or at least, should — be much greater if bin Laden ends up living out his days in a federal prison than if he dies on the wrong end of a cruise missile. Providing bin Laden with a fair trial (and not seeking the death penalty) would be the most dramatic way in which we could distinguish ourselves from him and from his collaborators.

Even better would be a prosecution of bin Laden in an international tribunal, to rebut charges of biased American justice. For the moment that option remains unavailable, unfortunately, at least in part because of U.S. resistance to the new international criminal court.

Finally, if we conceptualize our response to the attacks as a law enforcement operation, the response is less likely to result in the unnecessary curtailment of civil liberties at home. "War" plays the trump to individual rights, and sometimes rightly so.

Let's not unwittingly adopt a talk that ends up hurting us more than it helps us to overcome the individuals behind these ghastly events.


Peter Spiro, a former State Department lawyer and NSC staff member, is a professor at Hofstra University Law School.

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