Thursday, July 07, 2005

War or Crime? Some Thoughts on the 7/7 Attacks in London

I didn't want to seem wholly unaffected by the horrible terror attacks in London, but I didn't feel like I had anything useful to add from an international legal point of view. But where a cautious lawprof blogger fears to tread, lawyer Andrew McCarthy does not, in this blistering National Review Online piece.

McCarthy's basic point is that the UK, unlike the U.S., has generally embraced the "law enforcement" approach to the war on terrorism. As McCarthy notes, the UK has:
  • adhered to Protocol 1 to the Geneva Conventions, which make it more difficult to classify someone as a unlawful combatant.
  • tossed out tough new anti-terrorism laws as a violation of EU human rights standards
  • released British nationals detained in Guantanamo Bay not because they did not believe those detainees were dangerous, but because they had no legal basis to prosecute them.

The larger sort of legalistic point is that the UK and many countries continue to see terrorism as a criminal law enforcement problem than a military problem. According to McCarthy, this hampers the UK's ability to fight terrorism.

I'm sure McCarthy is exaggerating the extent to which these legal distinctions could have made a difference in the 7/7 attacks. But he does put his finger on the key political-legal battle over the war on terrorism.

Is it legitimate for countries fighting terrorism to adopt aggressive military tactics generally reserved for wartime: e.g. kidnappings and renditions, preemptive bombings/assassinations, preventive detentions, harsh interrogations? Or should countries stick to the basic law enforcement model that is more likely to protect citizens' civil and political liberties? Or is there some third way that could balance these concerns?

My own take (for what it is worth) is that we need some sort of third way, but if I had to pick between the "war" approach vs. the "law enforcement" approach, I would have to go with the "war" approach as the lesser of two evils. It seems to me, though, that it is the responsibility of lawyers and policy makers to come up with some third way rather than simply take potshots at each other from their ideological bunkers.


Anonymous Cathy said...

First of all, I think Andrew McCarthy's point (as you've summarized it - I haven't had a chance to read the whole piece yet) only holds up if the people behind today's attack were people who the criminal system had been incapable of dealing with and that the military system would have. For instance, were these people the same ones whom the UK had gotten released from Guantanamo but not charged? If yes, perhaps he has a point - but only to the extent that the criminal justice system was too incomplete to effectively deal with these kinds of crimes or conspiracies. A solution would be to add more prosecutable laws - not gut the whole system.

And if not, if these were new people that would not have been picked up as enemy combatants, then his point is moot, because even if the UK did things the US way, the attacks likely still would have happened. (In fact, maybe the attack shows the failure of the US system, in that despite the many, many people the US has incarcerated, the attacks still took place.)

Lately I've been thinking, as you are, that perhaps a third avenue might be desirable. But in lieu of that, I think the default should be the conventional criminal justice system. My view on that is that if it isn't good enough for the most heinous crime, it's not good enough for the most petty.

The larger problem, however, is that the criminal justice system tends to deal with crimes after they've happened. Prior restraint is not usually tolerated. A third system should be able to marry the two paradigms: preventative, as provided by the military system, but not without the due process protections that the criminal justice system provides.

In other words, if we think there's a certain category of people who need a certain special treatment, we better have the right processes and procedures to make sure only the right people end up so treated.

7/08/2005 12:13 AM  
Anonymous Anonymous said...

On the whole I agree with Cathy's comments that we should only reach for an alternative approach if the criminal system is incapable of dealing with the situation. And the fact that an attack occurs does not mean that the criminal system is incapable of dealing with the situation.

One problem with the "war approach" is that international law allows States to do certain things in wartime on the assumption that this is an extraordinary situation which is limited in time (even if its a long time) and which is not the generally prevailing situation. However, one cannot say that the "war on terror" is limited in time. It will probably go on indefinitely. Should we then be willing to see measures which we considered as exceptional become the norm for an indefinite period? Isn't this to some extent doing the terrorists work for them when we change our basic values and ways of life indefinitely (or perhaps permanently) on account of their threats.

Furthermore how does this translate to other countries which face insurgencies and other threats? Should they also be allowed to use similar measures? Afterall, many countries that the west accuses of having poor human rights measures have long argued that they need to take such actions because of threats that they face by the State.

Dapo Akande (University of Oxford)

7/08/2005 5:23 AM  
Anonymous Anonymous said...

The main difference between the two approaches is the removal of checks and balances without any assurance at all that we are any better off. There is a valid comparison with proprietary versus open source cryptographic software. The open source wins hands down because it receives much more scrutiny. Bugs are found and fixed. The closed source proprietary method hides bugs from everyone except the hackers - precisely the people we don't want as the sole custodians of bugs.

Similarly , removing the checks and balances from the justice system and handing reponsibility to the military has an unsettling tendancy to hide problems. Without scrutiny, corners get cut, mistakes get covered up. Besides, look at the military approach in Iraq, where the US is demonstrably failing to win, if not on the way to losing. So even in Iraq where the military solution has the best chance of proving its merits, it does not appear to be getting anywhere.

7/08/2005 8:06 AM  
Anonymous Anonymous said...

Of course the military option has legal scrutiny. That does not mean mistakes are not made or that abuses do not happen. Just like you have police who abuse suspects, you might have rogue military members or small units who violate the laws of war. None the less, the legal rules for the global war on terrorism were reviewed by so many lawyers at so many agencies that it defies easy count. These were not just political appointees, but laregly career military and civil service. It is naive to say that military approach to the war on terrorism lacks legal review; it just shows that the writer is not aware of it. I know what the response will be: that the lawyers are all colluding. Not so; the military and civilian career lawyers in the US military and other federal agencies are the most knowledgeable and best trained in the world, most having advanced degrees in law from the top few international law programs in the country.

7/08/2005 8:48 PM  
Anonymous Anonymous said...

Of course the military option has legal scrutiny.

Scrutiny by lawyers is not the same thing as scrutiny by the justice system.

7/08/2005 9:12 PM  
Blogger Nema said...

McCarthy's point reminds me of a Simpsons episode I watched when I was a kid, where a bear attacks Springfield and the government passes significant limitations to combat bear attacks. The following exchange then takes place between Lisa and Homer -

Homer: Not a bear in sight. The Bear Patrol must be working like a charm.
Lisa: That's spacious reasoning, Dad.
Homer: Thank you, dear.
Lisa: By your logic I could claim that this rock keeps tigers away.
Homer: Oh, how does it work?
Lisa: It doesn't work.
Homer: Uh-huh.
Lisa: It's just a stupid rock.
Homer: Uh-huh.
Lisa: But I don't see any tigers around, do you?
Homer: Lisa, I want to buy your rock.

Its Homer's type of logic that I see evident in McCarthy's point. Unless there is some type of causation developed between UK's procedural limitations and the London bombings, than the argument isn't worth arguing. Moreover, it isn't a significant indicator of how effective US limitations on due process rights are.

I think Cathy noted very well, that for all we know using McCarthy's logic, it could have been the US way that made the attacks more likely to happen.

7/10/2005 9:07 PM  
Blogger Elias said...

The entire discussion is based on two questionable assumptions:
1. Where the bombings in London "terrorist" acts, as we understand them, or "false flag" operations, masterminded by Western intelligence agencies? Such question must be asked because of the existence of dozens of anomalies and contradictions in the official account, as well as the lack of a conclusive proof regarding the identity of the authors. I refer readers to my webpage at The same reasoning writ large applies to the socalled terrorist attacks on 9/11.

2. There is hardly any international terrorist threat to speak of. According to terrorism statistics, more people die from snake bites than from terrorism. Whatever real terrorism exists, is mostly in conflict zones and those few true terrorist attacks outside conflict zones can be counted on one's fingers. They do not warrant any particular legal regime. Criminal law is more than sufficient to deal with such acts. There is no factual base to conflate socalled terrorist acts with acts of war. Whoever has attempted to do so, has had ulterior motives in doing so, particularly the need to commit aggression and occupation.

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