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.]
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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.
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