As you’re probably already aware, there’s been some disagreement with the Obama administration’s plan to try alleged 9/11 mastermind Khalid Sheikh Mohammed in a New York civilian court. Among the objections is the claim that trying terrorists in civilian court commits one to a “law enforcement” view of terrorism rather than a “war on terrorism” approach. Now as a general rule, I’m rather opposed to the rather overworked and almost always grossly misleading War on an Abstract Noun language. By and large, our WoaANs have effectively been wars on drug users and poor people – or most often, a twofer of poor people who use drugs.
That said, the war metaphor might not be as problematic in the case of international terrorism. Certainly many terrorists invoke war language to describe their actions. So should we take terrorists at their own word, and accord them military trials (which generally entail fewer protections for the defendants than do civilian trials)? Matt Yglesias says no, claiming that if you do 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.
But not so fast, says Norm Geras.
The opposition Matt sets up here between war and crime – between ‘a socially sanctioned form of activity, generally held to be a legally and morally acceptable framework in which to kill people’, on the one hand, and murder or mass murder, on the other – is too sharp. War may (sometimes) be legally and morally acceptable, but that doesn’t mean there is no criminality within war. There is – as defined by the laws of war. One is not therefore bound to choose between treating individuals as participating in a war and treating them as criminals, if that is what they are. Under the assumption of universal jurisdiction, international humanitarian law allows for war criminals and those responsible for crimes against humanity to be prosecuted in the civilian courts of any country. And terrorism is murder even when it is ‘a kind of war’.
Now I’m inclined to agree with Geras to a degree. The line between terrorism and war crimes is not as bright as Yglesias makes it out to be. I am personally inclined toward the view that terrorism is best defined as the deliberate targeting of noncombatants to achieve a political objective. That makes the 9/11 attacks and the Ft. Hood shootings both acts of terrorism, albeit on different scales. But that definition also makes the allied firebombings of Dresden and (at minimum) the atomic bombing of Nagasaki acts of terrorism. The latter two acts are also rightly defined as war crimes and should have been treated as such. (And, yes, I am fully aware that only the losing side is ever actually tried for its war crimes. It doesn’t make such acts any less criminal.)
But not all acts of terrorism are acts of war. I think one would be hard pressed to give any sort of plausible story that portrays Tim McVeigh’s bombing of the federal building in Oklahoma City as an act of war. The same goes for the Unabomber, the DC Sniper and the Ft. Hood shooter. Terrorists, yes. War criminals? Not so much.
KSM and 9/11 is a tougher call. Indeed, I think it’s something of a judgment call. I could probably get on board with either side – or, at the very least, I’d say that it’s a question about which reasonable people can reasonably disagree.
Still, I think that there is a serious risk of inconsistency present for many of those who are now arguing for treating KSM as a war criminal. As Geras rightly points out, international humanitarian law does in fact allow for war criminals to be prosecuted in the courts of any country. That specific international humanitarian law is the Fourth Geneva Convention. Article 146 specifies that signatories “shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.” Those “grave breaches” are defined in Article 147 as:
those involving any of the following acts, if committed against persons or property protected by the present Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
That pretty well describes the 9/11 attacks and KSM, and I think that anyone wanting to try KSM as a war criminal is legally in bounds to do so. But if one does wish to use the Fourth Geneva Convention to define KSM and company as war criminals, one will also probably need to pay attention to the last sentence in Article 146, which reads:
In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949.
In plainer English, that means that if you want to try someone as a war criminal, you have to treat him as a prisoner of war. Meaning no “cruel treatment and torture,” and no “outrages upon personal dignity, in particular humiliating and degrading treatment.” Which pretty much rules out waterboarding the dude 183 times.
So here’s the deal. If you think that the Geneva Convention’s prohibitions on torture somehow don’t apply to KSM, then it’s a bit hypocritical to argue now that he’s a war criminal. If you’re going to charge someone with war crimes under international law, then that same law also requires that you treat them as prisoners of war. In other words, a war criminal gets the full set of Geneva Convention protections, not just the ones that happen to best fit your preconceptions (or, perhaps more to the point, not just the ones that best line up with the agenda of your favored political party.)
*Note: Just to be clear, I’m not accusing Geras of inconsistency. He actually supports trying KSM in civilian court and has argued that those who tortured KSM should be prosecuted. I don’t know of anyone specifically arguing both for torturing KSM and for now treating him as a war criminal, though I do recognize that there is one particular political party whose members by-and-large were okay with torturing suspected terrorists at Gitmo and who are now outraged at the decision to try him as a civilian. It’s unclear to me how many members of that subset are interested in attempting to justify that split on any sort of rational grounds and how many of them are simply okay with whatever Their Side does and displeased with whatever The Other Side does.