Terrorists Claim to Be Warriors: Why Can't We Label Them Combatants?

President Obama was right in his recent acknowledgement that we are in a war, but he needs to say more and announce in his state of the Union Address that henceforth we will treat terrorists as enemy combatants. Here’s why.

After the mishandling of the Christmas “underwear bomber” and the decisions to close Gitmo and to try al-Qaeda  enemy combatants in New York federal civilian court, it’s pretty clear America needs a new anti-terrorism policy to deal with “Terror Warfare” and to acknowledge the reality that terrorists are not criminals but enemy combatants.  It would be great if we could rely on the help of the world and simply go back to Geneva to have a 2010 Geneva Convention on terrorism, since the 1864, 1906, 1929 and 1949 Conventions did not anticipate the “Terror Warfare” we face today.  But the U.N. crowd cannot be relied upon to do what is in the interest of protecting Americans. So it is up to us.

As we flounder schizophrenically and debate the “enemy combatant” or “civilian criminal” approaches to terrorism, we must realize that at the root of that debate is the absence of leadership,  resolve and a clear U/S/ policy when it comes to dealing with Terror Warfare.   That leadership must come from President Obama and if he doesn’t provide it, others, like my friend newly elected Senator Scott Brown, surely will.  This was one of the issues Scott campaigned on and the majority of voters in Massachusetts seemed to agree.

We Americans need to lead in a bipartisan way and craft a new 2010 anti-terror policy, with supporting laws, that can be used as a model for other freedom loving countries.  

The December 25 handling, or mishandling, of Umar Farouk Abdulmutallab, accused of attempting to attack Delta Airlines Flight 253 and kill 279 passengers and crew, highlights the problem of giving U.S. civilian criminal justice to an enemy combatant.  Usama Bin Laden in his recently released audio message claimed credit for the attack and called Abdulmutallab, not a common criminal, but a “heroic warrior”.  When the enemy sees themselves as combatants what fools are we to treat them otherwise?

On 9-11, al Qaeda — a sub-state organization with a presence in multiple countries — did not have an air force, so it created one.  Al Qaeda commandeered multiple aircraft to attack multiple targets and kill thousands of civilians. They were not in uniform but I think nearly all would agree that those attacks were terrorism. It was also an act of war by an entity with no “regular” standing military.

The United States, and indeed all nation-states, should stop defining such terrorists as criminals.  The acts of a terrorist are acts of war.  

Trying to define terrorism as anything other than war has led America, and in fact, the world, down a truly dysfunctional road.  Today’s battlefields are not the beaches of Normandy, they are airliners, subways, train stations and hotels.

Part of the reason the U.S. and others went down the criminal justice path was overzealousness and laziness.  By overzealousness, we wanted “public justice” for “murderers”.  But, as the old saying goes “When all you have is a hammer, everything looks like a nail”. We had the “hammer” of an existing criminal justice system that we could use.  We were lazy in that we did not have, nor did we create, a system for handling enemy combatants.

We are now paying the price for not doing the right thing in developing a comprehensive American Anti-terrorism policy when our Embassy was seized in Tehran in 1979, or when the World Trade Center was attacked in 1993.  Had we done so, our policy and supporting laws could have been the basis for a global repudiation of terrorism after 9-11.  It is not too late to do better.

The civilian legal system is not the only place capital punishment could be meted out.  Both military and civilian courts can sentence convicted persons to death.  But the civilian justice system has an all or nothing element to it. In the civilian system if you can’t prove your case beyond a reasonable doubt, the accused is acquitted and walks free.

The 2010 anti-terrorism policy that America so badly needs, takes and then keeps enemy combatants off the battlefield.  In addition, if an enemy combatant were tried for a war crime and found innocent of that war crime, the enemy combatant would still be held for “the duration” because he/she was still an enemy combatant.  This is consistent with the time honored principle of taking the enemy combatant out of the fight until one side wins, resulting in the surrender of the other side and possible repatriation of the enemy combatant population.

It would help in the formation of our Anti-terror policy if we used a definition of Terrorism/Enemy Combatants from other than a law enforcement organization prism. Contrast the two definitions below:

FBI Terrorism definition: The unlawful use of force or violence against persons or property to intimidate or coerce a Government, the civilian population, or any segment thereof, in furtherance of political or social objectives.

Proposed 2010 U.S. Terrorism/Enemy Combatant definition: The threat or actual application of any malevolent act*, including the use of force or violence against persons or property, to strike at, intimidate, or coerce a Government, the civilian population, or any segment thereof, in furtherance of political or social objectives.  Further. Anyone who commits such an act is a T terrorist, which is synonymous with enemy combatant status.

*includes bloodless attacks such as cyber or psychological operations.     

The key elements of our new policy must include the principles below:

Terrorism = War.  

Terrorist = Enemy Combatant.  

Captured Terrorist = Enemy Combatant confined for the duration.

Acquitted of War Crimes Enemy Combatant = Still an unlawful enemy combatant confined for the duration.

So what is needed now?  Common Sense.  No nation,  no leader of any nation, and no citizen wants to be vulnerable to terror warfare.  Now is the time to call on our leaders to address terror for what it truly is – war.  It is the responsibility of our government to protect Americans, not those who would harm us on today’s battlefields of airliners, train stations and hotels. I call on our President in his State of the Union address, to demonstrate a progressive approach that recognizes terrorists henceforth for what they themselves claim to be, and for what they truly are — enemy combatants.