In political terms, the right likes the war idea because it involves taking terrorism more “seriously.” But in doing so, you partake of way too much of the terrorists’ narrative about themselves. It’s their conceit, after all, that blowing up a bomb in a train station and killing a few hundred random commuters is an act of war. And war is a socially sanctioned form of activity, generally held to be a legally and morally acceptable framework in which to kill people. What we want to say, however, is that this sporadic commuter-killing isn’t a kind of war, it’s an act of murder. To be sure, not an ordinary murder--a mass murder--but nonetheless murder. * * *It's like if the Fort Hood shooter had killed 3,000 people and we decided that was "war" (but executed him anyway).
After all, do we really want to send the message to the world that a self-starting spree killer like Nidal Malik Hasan is actually engaged in some kind of act of holy war? It seems to me that we don’t. A lot of people in the world are interested in glory, and willing to take serious risks with their lives for its sake. Insofar as possible, we want to drain anti-American violence of the aura of glory. And that means by-and-large treating its perpetrators like criminals.
If Khalid Sheikh Muhammad plotted the 9/11 attacks as an act of war, then we should be ruefully praising his ingenuity. How is 9/11 more of a war crime than Dresden or Nagasaki? But it's not an act of war. Al-Qaeda doesn't get to "declare war" any more than Tim McVeigh did. It's not a sovereign state. It's a criminal organization, like the Mafia, and its members need to be put on trial like the criminals they are, rather than like the warriors they fantasize themselves to be.
At the most extreme, one could suggest that the Right insists on calling the terrorists "soldiers" because the Right shares the terrorists' fantasy of private insurgency against the American government. But that is another story.