Thursday, July 09, 2009

Terrorism is a crime -- treat it like one.

Mark Kleiman thinks that Glenn Greenwald has his panties in a wad over the "preventive detention" of Taliban/Qaeda members:
Whether someone has committed war crimes, and can be proven to have committed them beyond reasonable doubt under the rules of evidence that apply in a criminal trial, is one question. Whether he's a fighter for the other side in a war is a completely different question. Someone can be innocent of any war crime and still be an enemy fighter.

The basic rule of criminal justice is "innocent until proven guilty." The basic rule about prisoners of war is that combatants can be held as long as the conflict lasts.
This works for the Taliban, not so much for al-Qaeda, it seems to me. Kleiman:
Arguably it was criminal to be a member of al-Qaeda, which was an organization devoted to mass murder, but proving membership and the requisite scienter (that he knew, or had reason to know, what his group was up to) with respect to any given individual might be hard, for example if the evidence is tainted by torture.
I think membership at least creates a presumption of criminal intent. It's like saying I joined the Mafia but didn't know it was criminal.

Kleiman may hamper himself here by his "devoted to mass murder," which is more than needs to be proved. In an update, he writes:
Al-Qaeda isn't the army of any state, or of an insurgency that is trying to take over any state. But it is an entity devoted to carrying out attacks on both civilian targets (which is, generally, a war crime) and military targets such as the USS Cole (which is not, generally, a war crime, though al-Qaeda's lack of uniforms, a formal command structure, and a government to report back to may make even its attacks on military targets unlawful). Al-Qaeda has been waging war on the United States at least since 1998. That, too, might end, though only if al-Qaeda ceased to exist as an organized entity.
Here, Kleiman correctly notes that al-Qaeda has been engaged in bad acts for quite a while, and with some reputation for doing so. But he goes off the rails on his framing of the issue in military terms.

Al-Qaeda was a criminal organization. It's theoretically possible for us to come to peace with the Taliban and to release its soldiers in our custody. But what would "peace with al-Qaeda" look like? Can we sign a peace treaty with the Mafia? Could we have signed one with Timothy McVeigh?

Joining a terrorist organization is a crime (just ask Jose Padilla) and can be punished as a crime. If we have prisoners who are thought to be members of al-Qaeda, then let's put them on trial. But if we have people whom we just kinda *think* might be terrorists, that's not good enough.

... Deborah Pearlstein has some good thoughts on the subject.

1 comment:

  1. Hi Anderson,

    Since I'm being censored on OJ, this is in response to your comment on Deborah's latest...

    "if you regard this as a non-international conflict against a non-state enemy, then domestic law can also provide a criminal basis for detention"

    A) It's utterly immpossible that this could be an non-internationpal armed conflict. It's a war with Afghanistan, or if you don;t like admittting that the Taliban have more of aclaim to legitimacy thasn Karzai and the gang ever will, it's an armed occupation of Afghanistan.

    B) The only way it could possibly be a non-international armed conlict would be if al Qaeda was a domestic US revolutionary group.

    C) And suggesting the contray is just silly. Read Geneva CA2 and CA3.

    If that's not good enough, read the US Constitution. Think Congress could declare war on the Crips and the Bloods? Or the Mafia?

    Think again.

    "Congress authorized the use of military force because there was no other way to apprehend Osama in what was a hostile or lawless territory."

    Oh balony -- Congress did no such thing and the AUMF says no such thing. Read it. It's actaully unconstituional for more reasons than one, not that anyone has bothered to notice for fear of how utterly embarrassing it all is.