Soldiers or Criminals?

General Wesley Clark and UCLA law professor Kal Raustiala have an excellent op-ed piece in today's New York Times entitled "Why Terrorists Aren't Soldiers". In it, they clearly lay out the reasons why describing members of al-Qaeda and other militant, non-state actors as "enemy combatants" is the wrong way to go. Below are some key excerpts, but the entire piece is well worth reading.

Treating terrorists as combatants is a mistake for two reasons. First, it dignifies criminality by according terrorist killers the status of soldiers...
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Labeling terrorists as combatants also leads to this paradox: while the deliberate killing of civilians is never permitted in war, it is legal to target a military installation or asset. Thus the attack by al-Qaeda on the destroyer Cole in Yemen in 2000 would be allowed, as well as attacks on command and control centers like the Pentagon. For all these reasons, the more appropriate designation for terrorists is not “unlawful combatant” but the one long used by the United States: criminal.
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The second major problem with the approach of the Bush administration is that it endangers our political traditions and our commitment to liberty, and further damages America’s legitimacy in the eyes of others. Almost 50 years ago, at the height of the Cold War, the Supreme Court reaffirmed the “deeply rooted and ancient opposition in this country to the extension of military control over civilians.”

A great danger in treating operatives for al-Qaeda as combatants is precisely that its members are not easily distinguished from the population at large. The government wields frightening power when it can designate who is, and who is not, subject to indefinite military detention. The Marri case turned on this issue. Mr. Marri is a legal resident of the United States and a citizen of Qatar; the government contends that he is a sleeper agent of al-Qaeda. For the last four years he has been held as an enemy combatant at the Navy brig in Charleston, SC.
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We train our soldiers to respect the line between combatant and civilian. Our political leaders must also respect this distinction, lest we unwittingly endanger the values for which we are fighting, and further compromise our efforts to strengthen our security.

I couldn't agree more.