May/June 2004

RESPONSE
Combatants or Criminals? How Washington
Should Handle Terrorists
Ruth Wedgwood & Kenneth Roth
Fighting a War Under Its Rules
Ruth Wedgwood
Kenneth Roth chides the Bush administration for using armed force and the law of armed
conflict to capture and detain al Qaeda's key operatives ("The Law of War in the War on Terror,"
January/February 2004). It is not clear, says Roth, that the "war on terrorism" is a real war, and
in any event, U.S. criminal laws should be sufficient for dealing with the terrorists.
But a war is in fact raging, and criminal law is too weak a weapon. That was the lesson the
United States learned too late, on September 11, 2001, after a decade of arresting and trying
terrorist suspects. As a former head of the fbi's Joint Terrorist Task Force has remarked, the U.S.
government could not stop al Qaeda bombings by treating them as ordinary homicides. Using
such techniques, Washington did manage to take some people off the international street, but it
was not able to shut down the offshore camps that taught thousands of al Qaeda recruits how to
fight or wire deadly explosives. Nor could prosecutors compel Pakistani and Saudi intelligence
agencies to stop subsidizing the Taliban and al Qaeda. Destroying the infrastructure of al Qaeda's
operations has required diplomacy and the use of force as well as criminal law.
The purpose of domestic criminal law is to inflict stigma and punishment, and so it must be
applied cautiously. Such reticence is proper for civil government in peacetime, but it is not
always appropriate in war. Different priorities come to the fore when an international foe
embarks on a campaign to kill or wound thousands of people. The law of armed conflict thus
allows measures, such as the preventive internment of enemy combatants during the conflict, that
do not require the full-dress procedure of criminal trials.
The difficulties of relying on criminal law, especially on its cumbersome standards of proof, may
not be self-evident to nonlawyers. Roth suggests that criminal justice can provide all the tools
necessary to defend a democratic public against catastrophic terrorism. But few criminal cases
can be built on circumstantial evidence alone, and criminal proof demands near certainty -- or
proof "beyond a reasonable doubt" -- a very high hurdle that even first-rate intelligence cannot
usually meet. In a typical case, defendants cannot be arrested or sent to trial unless the state can
find eyewitnesses or co-conspirators willing to testify against them publicly, braving the dangers
of retaliation. Similarly, the rules of evidence used in criminal trials keep critical information out
of the courtroom. Items that were seized without a search warrant or that lack a flawless chain of
custody -- for example, the al Qaeda computer hard drives chock full of organizational data that
a Wall Street Journal reporter found in a Kabul marketplace -- might not be admissible, no
matter how important they are. Statements made by combatants in custody might also be rejected
if the fighters were denied access to counsel at the time. Any defense lawyer sent to the
battlefield would advise captured combatants to stop talking, undermining chances of uncovering
timely intelligence about al Qaeda's plans. And criminal law requires that sensitive methods of
surveillance be disclosed when they yield information offered as evidence, even though such
transparency may prevent intercepting telltale signs of future attacks.
All these restrictions make sense in a civil society, where criminal law can provide adequate
deterrence even with a limited success rate in the courtroom. But in the fight against al Qaeda
and its compartmentalized network, deterrence does not work. There is no obvious way to
dissuade fighters programmed by extremist cults or international terrorist organizations that are
not bound by the commitments of nation-states. Half-measures will not do, because the stakes in
this war are higher than in many others. Mistakenly releasing a single enemy soldier means little
when battles are fought en masse. But in al Qaeda's asymmetric, high-tech campaign, it takes
only a few combatants to destroy scores of innocent civilians. And al Qaeda remains keenly
interested in using weapons of mass destruction.
Roth may doubt that the United States is at war, but it pays to ask the other side. Al Qaeda has
declared jihad against the United States, and in fatwa after fatwa, Osama bin Laden has
announced that all Americans are valid targets. The U.S. Congress has understood that threat
well: after the September 11 attacks, it authorized the president "to use all necessary and
appropriate force against those nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or
harbored such organizations or persons" (emphasis added). That resolution confirmed the
constitutional authority of the president, as commander-in-chief, to capture and hold enemy
combatants in an armed conflict, a practice that international law also permits during active
fighting.
Common sense and proportionate rules of engagement are crucial, of course. No one is
advocating shootouts at the landing gates of O'Hare Airport, as Roth seems to suggest. The U.S.
government should continue individualized assessments of captured combatants and gauge at
regular intervals whether they have given up the fight and can be safely released. It should also
continue to respect the sovereignty of allies and neutrals (but warn rogue governments and rogue
leaders that sheltering international terrorists is an actionable offense).
On the face of it, Roth's three-part test sounds attractive. It allows resort to the rules of war
against suspects only when the violence suffered by the United States is so intense and sustained
that it amounts to an armed attack, when the suspects actively engage in plans for the attack, and
when "law enforcement means are unavailable" to deal with them. But "unavailability" means
different things to different people, and the foreign tribunals to which Roth proposes we defer
often have idiosyncratic values or could be corrupt or intimidated. And while such ambiguities
are debated, dangerous suspects might slip away.
Consider the case of Jose Padilla, a Chicago youth-gang graduate allegedly interested in "dirty
bombs," who could not have been effectively countered under criminal law. According to the
U.S. government affidavit filed in federal court, Padilla traveled to Afghanistan in 2001 to see a
senior al Qaeda military planner named Abu Zubaydah, then went to Pakistan for explosives
training. He agreed to return to the United States to stage multiple simultaneous bombings at gas
stations and hotels and pick out targets for a radiological "dirty bomb" attack. Padilla flew back
from Pakistan via Switzerland with agents in hot pursuit and, on landing in Chicago in May
2002, was immediately detained as a "material witness" for a federal grand jury.
The limitations of criminal law soon became clear. The Fifth Amendment privilege against self-
incrimination meant that Padilla did not have to testify, and could not be held, unless the
government agreed to protect him against any future criminal liability. Arresting Padilla on
criminal charges was not an option, because the lead witness against him is Zubaydah, who
remains in custody abroad as a crucial source of information on al Qaeda's future plans. The only
alternative under standard criminal law was to open the jail door, let Padilla go, and hope that the
police tail would not lose him.
To overcome this obstacle, the Bush administration decided to detain him as an enemy
combatant under the law of war. Padilla was, after all, a saboteur behind enemy lines planning an
act of war against his own country in cooperation with an international terrorist network. A
federal district court agreed, although it granted Padilla access to defense counsel to assist in a
habeas corpus hearing. But an appellate court has reversed that decision, ruling that the Bush
administration did not have the power to detain any U.S. citizen as an enemy combatant, even
under these dire circumstances, without express authorization from Congress. The case is now
before the Supreme Court.
Roth says we should not cavil when "the rule of law happens to produce inconvenient results."
But the potential success of a dirty bomb plot is more than just an "inconvenient result." And it is
a result not worth risking when, thanks to another applicable set of laws, we can protect
ourselves against it.
RUTH WEDGWOOD is Edward Burling Professor of International Law and Diplomacy at
Johns Hopkins University's School of Advanced International Studies.
Roth replies
Ruth Wedgwood attacks a straw man when she says that I find criminal law "sufficient for
dealing with the terrorists." Of course force is sometimes required. And when armed conflict
breaks out, as in Afghanistan or Iraq, war rules appropriately apply.
But Wedgwood also wants to invoke war rules in settings far from these traditional battlefields.
In her view, the "war against terrorism" is open-ended and global, allowing the U.S. government
unilaterally to designate terrorism suspects as "enemy combatants," at home or abroad, and to
summarily detain or kill them. That radical proposition jettisons the most basic guarantees of
criminal justice, leaving our liberty and our lives protected only by the government's professions
of good faith.
Wedgwood trivializes the issue by conjuring up images of "defense lawyer[s] sent to the
battlefield," which no one advocates. The real issue is whether suspects are entitled to a lawyer
and due process away from the traditional battlefield, in Peoria or Manchester. The Bush
administration has decided on its own that they are not. The congressional resolution that
Wedgwood cites never addressed the matter.
Wedgwood contends that the U.S. government is entitled to detain Jose Padilla, the alleged dirty
bomber, indefinitely, without charge or trial, because another suspect, held incommunicado
under "stress and duress" interrogation, has named him. Such "evidence" would never be
admitted in a U.S. court of law, let alone establish guilt beyond a reasonable doubt. Yet
Wedgwood dismisses these safeguards of criminal justice as unreasonable obstacles rather than
recognizing them as essential protections against government overreaching.
If Padilla were really an "enemy combatant," the government need not have detained him; it
could have killed him as he stepped off the plane in Chicago. Wedgwood insists that "no one is
advocating shootouts at the landing gates of O'Hare Airport." But the Bush administration has
never rejected the power to kill "enemy combatants" wherever it finds them, which is precisely
the treatment the rules of war allow. If we are uncomfortable applying these rules far from
traditional battlefields -- as even Wedgwood seems to be -- the problem lies not in these long-
established norms but in the designation of non-battlefield suspects as enemy combatants.
Even summary detention without trial should give us pause. Wedgwood concedes that the U.S.
government should "continue to respect the sovereignty of allies and neutrals." But Bosnia and
Malawi are two countries where the U.S. government has already seized suspects despite the
protests of local courts. Since these governments are hardly part of the axis of evil, Wedgwood is
wrong to speak of Washington's "continue[d]" respect for their sovereignty.
Some Americans may take comfort in the fact that most terrorist suspects to date do not look like
them. But exceptions to the guarantees of criminal justice, once accepted, can come back to
haunt us all. If the government can unilaterally declare a global war without regard to an actual
battlefield, there is nothing to stop it from, say, citing the "war" on drug trafficking -- a violent
enterprise that kills far more Americans than terrorism -- to summarily detain or kill suspected
drug dealers. And one can also imagine "wars" on crime, "wars" on corruption, and so on.
Detaching the notion of "war" from a traditional battlefield is easy. But it is much too dangerous
to indulge.
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