The Prince of Darkness on why terrorists aren't soldiers.

...no, not Robert Novak - retired General Wesley Clark.

Damian Brooks, of Babbling Brooks and The Torch, sent me a link to the NYT Op-Ed piece by the POD.

Damian said:

Where exactly does "criminal" show up in the Geneva Conventions? And isn't "unlawful" a synonym for "criminal" in any event?

I'd be interested to hear your thoughts on this, John, if you have the time and interest to comment.

Cheers,

Damian

Here's the core (as always, you should follow the links and read the whole thing and judge for yourself, not just the excerpt):

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.

Critics have rightly pointed out that traditional categories of combatant and civilian are muddled in a struggle against terrorists. In a traditional war, combatants and civilians are relatively easy to distinguish. The 9/11 hijackers, by contrast, dressed in ordinary clothes and hid their weapons. They acted not as citizens of Saudi Arabia, an ally of America, but as members of Al Qaeda, a shadowy transnational network. And their prime targets were innocent civilians.

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.

I responded:

Clark chooses to ignore the salient point that motivated the whole "unlawful combatant" category.

In fact, he ignores the reason for the insertion of the term "unlawful" into the debate.

The inadequacy of the Conventions (and other Law of Land Warfare agreements) in dealing with non-state actors who act... as de-facto states. Who wish to be states, however nebulous and fuzzy their ideas on the subject are. Al-Qaeda's intent is to first re-establish the old Caliphate (a state) and then to extend it's dominion, by word and sword, until the globe is the Caliphate.

Al-Qaeda fighters *claim* to be soldiers, act as soldiers in many respects, but toss over those distinctions that the Conventions use to separate combatants from non-combatants, even as they may wish to cloak themselves in the protections afforded by the Conventions, while denying them to their opponents.

In other words, they look and act as non-combatants, until they suddenly reveal themselves to be combatants. The traditional law of land warfare actually almost allows for the essentially summary execution of people who behave like that. See "spies and saboteurs."

Clark ignores the fact that the terrs have information of a militarily useful nature, which cannot be gotten at if we accord them the normal protections due a detained civilian murderer.

Nor can we necessarily properly prosecute these people in open court because much of the evidence needed to convict has military and security concerns attached. And, as we've seen as we've let these guys go - a significant number of them "re-offend." By attaching the combatant label to them, we can, under the usages of war, detain them for the duration of the conflict.

All knotty issues, with real concerns attached, from *both* sides of the issue.

But Clark just blows all of that off as essentially irrelevant.

Oddly enough - I agree with him in most aspects, just not in his breadth and scope.

His formulation works, really... if you are aggressive in the law enforcement aspect (think IRA and Basques) up front and continually - but they fail to be useful when it gets to the point where.you.commit.the.military to the fight in significant ways - in other words, when the terrorism ceases to function at the level of criminal nuisance and reaches the level of armed conflict.

In other words - I agree with him. Until the situation is such that it truly is a war. When you get to that point, the existing rules are insufficient, as they didn't take into account non-state entities acting as sovereign entities, yet not. That's where we find ourselves, and we have to find a way to account for that.

That there is room to wiggle and for discussion, certainly. That's how the system works.

And, as evil as people wish to portray us - we've not adopted the German, Russian, or French historical solutions to the problem - nor did we ever consider them. But sometimes, listening to he rhetoric, such subtleties and distinctions are seemingly lost.

That's my take.

What's yours?

Update: Lex's take here.