Here is their argument:Since 9/11 the Bush administration has sought to categorize members of Al Qaeda and other jihadists as "unlawful combatants" rather than treat them as criminals. . . .
Treating terrorists as combatants is a mistake for two reasons. First, it dignifies criminality by according terrorist killers the status of soldiers. . . .
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. . . .
The more appropriate designation for terrorists is not "unlawful combatant" but the one long used by the United States: criminal.
This is so vapid, it does not even rise to the level of sophistry. The authors argue that the U.S. should "designate" terrorists as "criminals" rather than "unlawful combatants" for purely rhetorical reasons: because calling someone a "criminal" implies less "respect" and does not "dignify" him.
Clark and Raustiala assert, “Al Qaeda represents no state, nor does it carry out any of a state's responsibilities for the welfare of its citizens.” This is false: from Al Qaeda’s point of view, they are the official government of the Caliphate-to-be, a state that currently exists in exile from its claimed national territory of the area between al-Andalus, occupied by the Spanish, to those Sultanates currently occupied by the Philippines. It is akin to the Free French and Free Dutch of World War II, claiming to represent the legitimate national governments of their occupied lands. They have declared war as a state on the nations of the West and on the occupation governments of Muslim lands (e.g., the House of Saud), but they refuse to abide by the internationally-agreed conventions and laws of warfare.
The criminal justice system is fundamentally punitive, not preventive. The purpose of declaring someone a combatant is to keep him off the battlefield, thereby weakening the enemy's ability to attack in the future. The justice system can do nothing about a ‘crime’ that has not yet been [committed].
His latter two sentences are spot on, but I take issue with the sentiment of the first. In my view, the criminal justice system uses punitive measures as preventive deterrents. The operation of the criminal justice system is based on the fact that most members of a civilized society are willing to stay within the limits of the law and need only the occasional reminder that transgressors face punishment to be deterred from wrongdoing.
In warfare, the combatants are by definition unconcerned with the societal norms of the people they are attacking. However, lawful warfare draws a line at targeting civilians and torturing or summarily executing captives. Combatants on one side may be deterred from violating the laws of war, attacking certain classes of targets, or using certain types of weapons for fear of retaliation in kind.
Fanatical terrorists do not recognize any such limits in their conduct of warfare. As a consequence, punitive measures drawn from the criminal justice system’s model of deterrence are useless in that context. Even retaliation in kind is ineffective against terrorist combatants who do not fear consequences in the temporal world because they are supremely confident of rewards in the next world. Thus the only means to prevent their evil acts are to detain them or to kill them.
Clark and Raustiala can't even get their argument straight, however. In a segment not quoted by Taranto:
The federal court held that while the government can arrest and convict civilians, under current law the military cannot seize and detain Mr. Marri. Nor would it necessarily be constitutional to do so, even if Congress expressly authorized the military detention of civilians. At the core of the court’s reasoning is the belief that civilians and combatants are distinct. Had Ali al-Marri fought for an enemy nation, military detention would clearly be proper. But because he is accused of being a member of Al Qaeda, and is a citizen of a friendly nation, he should not be treated as a warrior.
Cases like this illustrate that in the years since 9/11, the Bush administration’s approach to terrorism has created more problems than it has solved. We need to recognize that terrorists, while dangerous, are more like modern-day pirates than warriors. They ought to be pursued, tried and convicted in the courts. At the extreme, yes, military force may be required. But the terrorists themselves are not “combatants.” They are merely criminals, albeit criminals of an especially heinous type, and that label suggests the appropriate venue for dealing with the threats they pose.
Which is it, gentlemen? Are al-Qaeda terrorists civilian criminals, against whom it is improper to deploy military forces? Or are they soldiers of a non-territorial nation in exile, and therefore just targets of military action? The Clark-Raustiala position would seem to make NATO's operations in Afghanistan illegal, given that neither al-Qaeda nor the Taliban are legally-constituted armies. We should send the FBI and Interpol to round them up, not NATO troops in APCs and aircraft.
And we will close with this gem of wanton stupidity from Clark & Raustiala:
Labeling terrorists as combatants also leads to this paradox: while the deliberate killing of civilians is never permitted in war, it is legal to target a military installation or asset. Thus the attack by Al Qaeda on the destroyer Cole in Yemen in 2000 would be allowed, as well as attacks on command and control centers like the Pentagon.
"Allowed"? Well, yes, in that those attacks would be deemed to be within the legitimate scope of military targeting. However, this overlooks two important details. First, even though al-Qaeda did issue a formal declaration of war against Western governments (even though it wasn't taken seriously by those Western governments), this doesn't make their attacks on the USS Cole or the Pentagon "allowable" from the perspective of the United States: the U.S. Armed Forces would have been well within their rights to kill all of the attackers before the attacks succeeded. And the reason that the sailors on the USS Cole and the U.S. forces in and around the Pentagon did not in fact repel those attacks brings up the second point: al-Qaeda does not conduct its warfare according to international conventions and the laws of war. Its soldiers do not wear distinguishing uniforms, they do not recognize the rights of civilians not to be targeted, they do not accord captives the rights of prisoners of war. Perhaps the best way to describe them is that they are more than ordinary criminals, they are war criminals.