Eric Ma

Introduction to International Relations

Prosecution of Terrorism

What are the problems that you can identify in fighting terrorism?

In a recent interview1 Vice President Dick Cheney remarked that the United

States was less safe since Obama changed the detention and interrogation practices of

enemy combatants saying that the change was a move towards treating terrorism as a law

enforcement problem. Cheney argued that terrorism is a strategic threat that could only be

addressed by using all wartime assets against the enemy. During this interview Cheney

draws from a background debate that few people outside of academic circles know about

or the arguments for or against. This debate was over whether the “War on Terror”

should be prosecuted like a war or like a crime. While Cheney’s arguments seem solid on

the surface, it masks a deeper dilemma that the Bush administration and now the Obama

administration will have to address.

Before 9/11, the “War on Terror” did not exist. Terrorists like the Unabomber and

the Oklahoma City Bomber were submitted to a jury, and prosecuted. International

terrorists elicited a broader set of counter-measures, from international man-hunts to

missile strikes, but terrorism was generally not viewed as an act of war. This changed on

9/11. The attacks on the World Trade Center were so heinous that most analysts agreed

that it constituted an act of war and the result was the war in Afghanistan. However, the

“War on Terror” as the Bush administration constructed it was not limited to the war in

Afghanistan. The “War on Terror” took a meaning something like the “War on Drugs”, a

1
Shulzberg A.G. Cheney Says Obama has Increased Risk – NYTimes.com. March 15, 2009. New York
Times. March 24, 2009. http://www.nytimes.com/2009/03/16/us/politics/16cheney.html?
scp=5&sq=cheney&st=cse
long-term struggle against an organized world structure. This began the debate over

whether the “War on Terror” should be prosecuted as a war or as an international crime.

The arguments that it should be prosecuted as a war are substantive. War-time is

not bound by law-enforcement standards, but instead by the only international

humanitarian rights. In wartime the country can mobilize all of its resources, military

arms, troops, intelligence, to defeat the enemy. It can invade a country and depose its

leadership. It gives the country the right to kill or capture combatants in the field. It gives

a country the right to hold combatants until the end of the war and interrogate those

prisoners. War also gives the government the weight to leverage foreign governments and

intelligence services. The purpose of going into a war against terrorism is to protect ones

citizens from the threat of terrorism by using military means. The attacks on 9/11 were

not prevented in part because the U.S. lacked powers needed, from the FBI to the CIA, to

stop them.

The arguments for prosecuting terrorists as criminals are also significant and

should not be overlooked. First, the act of war perpetrated by the 9/11 attackers was

answered with a war, the war in Afghanistan. There is no credibility at stake in limiting

the war to Afghanistan since it was the state sponsor most responsible for the attacks.

Police powers also let you imprison a terrorist for longer than the end of any war, so long

as they are successfully convicted. Despite the “War on Drugs,” which is less of a war

than a slogan, historically there has always been a dividing line between war and peace,

in which peace allows you to keep other priorities and conduct business normally,

whereas in war the first priority of the country is ending the war. The “War on Terror" is

a long term struggle against a tactic, namely terrorism, that has no clear purpose,
objectives, or enemy. The targets of the “War on Terror” have been lumped together as

“Islamo-Facist” which also does not have a meaning, but potentially any individual, and

the states those individuals live in, who has any intention of committing terrorism is at

war with the United States.

The Bush administration has prosecuted this “War on Terror” as something in

between a war and a crime, but also goes further, inventing new powers applicable to

terrorists. Questions have been raised concerning about the ability to imprison “enemy

combatants” indefinitely. If they are held until the war’s end, and there is no clear end to

the war, then there is no intent on letting them go free or giving them a fair trial. This is a

clear violation of human rights. The Bush administration has also argued for torturing

prisoners, disavowing the Geneva Convention’s ban on torture as outdated. This is

considered by many to be a war crime.

Clearly, something in between police powers and war powers are needed in

prosecuting terrorists. Terrorists are non-state actors who do not abide by international

laws nor their own state’s laws. Current police powers do not address state sponsorship or

sanctuary to terrorists. Organized terrorist groups employ military grade weapons and

potentially have access to weapons of mass destruction (WMD) or weapons of mass

disruption.

The biggest question is whether we should allow this war to consume the

resources, and political capital of the United States. Cheney and the Bush administration

made going after terrorists the central priority of the United States. The “War on Terror”,

however, is exactly the goal of terrorists. To elevate the struggle against Islamic

extremism, in effect creating the modern crusades, the Bush administration has given the
terrorists the political platform they needed. In making terrorism the central concern of

the United States, they put terrorist attacks, any kind of terrorist attack, on a pedestal, in

effect legitimizing the use of terrorism as a political tool. The Unabomber and the

Oklahoma City Bomber never received the political airing of their grievances that the

“Islamo-fascists” have. More police powers are necessary, and war powers are necessary

in combating Islamic extremism, but in the context of a struggle to end the use of

terrorism.