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The Criminal/The Military

Three contexts involve the distinction between crime and war:

1. the 9.11 attacks;

2. the framework for engaging the enemy in response;

3. the legal framework for organizing the campaign.

1. Any killing on the scale of 9.11 is truly horrid, but nevertheless things have changed since Guernica in 1937. We have been through massive assaults on largely civilian targets during war: the Blitz, Dresden, Stalingrad, Tokyo, Hiroshima, Hanoi, Srebrenitza, and the Holocaust itself. Against this background 9.11 is not a grotesque military event. And this is where we encounter the first break, because terror belongs to the world of crime; in the military such assaults are strategic warfare. Given 20th century warfare, the horror of 9.11 must stand on a base of crime rather than war.

2. The fundamental break with previous policy after 9.11 was to regard the attack as an invasion rather than a crime, and declare war on the invaders and those who support them. Similar attacks during the 1990s had stimulated a crime control response - find and apprehend perpetrators and disrupt their organizations - even when military assets were used in the execution thereof. None of the distinctions that were to become so important in the years following - the concept of enemy combatant; the applicability of the Geneva Convention - would be germane to a crime control model. [Today, 7.2.07, the British Foreign Secretary referred to the current wave of explosions as criminal acts. Awful, but better than an invasion.]

3. All the controversial homeland security measures assume the existence of a state of war or the exercise of war powers. This is a crucial move because civil rights only apply under civil conditions, so the entire context of analysis changes. The detention of prisoners poses no interesting issues if the frame of reference is dragging an enemy soldier out of a foxhole and herding him off to a camp in the woods surrounded by wire and military guards. Under those conditions no one speaks of speedy trial or the right to counsel. No civilian life; no civil rights. [This is the basic insight of Prof. John Yoo’s theory of executive power: Article I authorizes a military coup so long as the President is head of it.]

Notice, however, what happens with a double denial. Captured enemies are not prisoners of war because they are not soldiers. But since we are at war with them, and they are in military custody, they are also not criminal accused entitled to due process of law. So a space opens between war and crime that allows authority lots of room to operate, at its discretion.














©Al Katz • Prof. of law SUNY, Buffalo, 1969-1989 (ret.)