TCS Daily

Fire at Will

By Brian E. Finch - November 12, 2002 12:00 AM

Last week it was reported that the C.I.A. had successfully eliminated Abu Ali al-Harithi, a top al-Qaeda operative in Yemen, with a missile fired from a Predator drone. Far from being viewed as a successful mission in the war on terror, some critics reflexively went into deep concern mode, fretting over the legality of killing al-Harithi instead of trying to arrest him, suggesting the action was "against international law." Columnists, pundits and human rights groups immediately raised concerns about the strike and demanded access to all the details surrounding its planning and execution. The Bush Administration refused to yield to pressure, insisting instead that it was doing what was necessary to protect the country.

The Real Debate

It is important to recognize what the debate over the Yemen strike is really about - a proxy fight over the true nature of the struggle against terror. The al-Harithi debate has just as much to do with whether this fight is a "war," a law enforcement action or something else completely. And, without a doubt, critics of the Bush Administration's policies hope to assign the label that proves to be most restrictive on its efforts.

It's instructive to recognize the consequences of treating the fight against terror as either a "war" or a law enforcement effort. If it is a war, the U.S. has dramatically more leeway than it might otherwise. The evidence needed to take someone into custody or, in the case of al-Harithi, eliminate them, is far less than what would be required for a conventional arrest. Also more resources become available, with the military being allowed to take a lead role. Thus in a war environment, the U.S. would have the ability to make snap decisions in order to protect itself.

Conversely, the law enforcement approach dictates a more deliberate effort. Significant evidence would have to be gathered in order to take a person into custody. That person would then have to be tried, placing him and the efforts to catch him under close scrutiny. Assuming a conviction occurs, another enormous evidentiary hurdle would have to be scaled in order to impose capital punishment. All of this would require terrific resources, reducing the ability to capture other individuals of concern.

To be fair, each approach has positives and negatives. Treating the fight as a war allows far greater flexibility to act, but the laws of war severely restrict the ability to interrogate prisoners. At the same time, the law enforcement approach would be far slower, yet it would have the assurance of a fair trial and the transparency that can only occur with appellate review.

And Now For Something Completely Different

The problem here is that the fight against terror does not really fit either definition. While the resources and goals of al-Qaeda and other terrorist groups far exceed anything normally associated with criminal groups, they are not tied to a nation-state. The lack of a state entity to which they are responsible provides a strong argument against applying the laws of war to terrorist groups, as traditionally such rules apply only to international conflicts (albeit that principle has been the subject of great debate for years). On the other hand, treating terrorists as mere criminals and thus subjecting them to the rigors of a justice system fails to consider the unique dangers they represent. Operating at a level much closer to that of a military than a criminal cabal, terrorists focus on bringing death and destruction to anyone and anything until their foe relents and meets specified demands. Those capabilities and goals make them a threat that is beyond the capability of a traditional law enforcement agency.

Thus, one is left with the conclusion that terrorists operate in something of a legal void - they are more than criminals but less than soldiers. Yet this distinction is often lost on opponents of the fight against terror, particularly human rights groups. Take for instance Amnesty International. Shortly after the missile strike in Yemen, Amnesty International issued a statement demanding that the U.S. as well as Yemen "must not sanction extra-judicial executions." Claiming that the strike was in violation of "international human rights laws," Amnesty International demanded "full clarification" of its details and vowed that U.S. officials found to have violated these unspecified "laws" would be "brought to justice."

Amnesty International's position is a gross oversimplification and an unnecessary rush to judgment as to the nature of the conflict. Amnesty International's reference to the missile strike as an "extra-judicial execution" totally ignores the circumstances surrounding the pursuit of al-Harithi. Al-Harithi was one of the top leaders of al-Qaeda, possibly involved in the bombing of the U.S.S. Cole and undeniably integral in the planning of new attacks throughout the Gulf region. The U.S. and Yemeni authorities had attempted to capture him and others, but failed (losing 13 Yemeni soldiers in the process).

The decision was made that just as with the rest of al-Qaeda, his continued ability to evade authorities was too large a risk to global security, and thus if the opportunity presented itself, he was to be removed. Those concerns and others meant that what Amnesty International implicitly demands (the handling of al-Harithi and others through a criminal justice system) is impossible.

In the interim Amnesty International and other critics can leisurely ruminate on the appropriate set of laws to be applied, just so long as the Bush Administration is making sure that the al-Harithi and his friends are not leisurely plotting their next attack.



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