"Terrorists are Neither Criminals Nor Soldiers"

On July 29, The New York Times published an essay in its Sunday Book Review, the first half of which was dedicated to a political tirade. The byline indicated that the author was a Harvard professor, evoking the image of an independent scholar residing in the ivory tower of a major academic institution. There was no hint that this particular professor also functions as a key foreign policy adviser to a prominent presidential candidate. Nor did the Times indicate whether the controversial position which the author struck in the essay is hers alone or is also that of her candidate, for whom she often speaks and writes. The essay argues that it is both morally wrong and politically dangerous to treat terrorists as soldiers instead of subjecting them to the criminal justice system.

The Times is the primary newspaper of this country, setting norms for much of the Fourth Estate within the United States and beyond. Its credibility is built on meticulous journalism, as it publishes several corrections of the smallest mistakes made the day before. It does not hide these corrections; they are typically found on page A2. The paper has an ombudsperson for its readership. The Times regularly publishes columns by conservatives despite having an editorial board that is famously, shall we say, on the progressive side of things. In short, the Times goes a long way to play fair.

Therefore it was particularly surprising to find that the Sunday Book Review identified Samantha Power, author of the essay in question, only as a Harvard professor. I greatly admire Professor Power's courage and passion. She regularly risked her life to report directly from the war zone in Bosnia. Her book, The Problem from Hell, is a very powerful condemnation of the superpowers that could have stopped genocides, but chose to ignore them. She is a relentless champion of human rights from her Harvard perch. However, between 2005 and 2006 she took a year-long leave to work with Senator Obama. Although she has since returned to Harvard, she continues to serve as a key foreign policy adviser in his campaign. Just days after the publication of the book review essay, when Obama's foreign policy statements came under fire in the aftermath of the YouTube debate, Power issued an extensive memo to the press defending her candidate's call to meet with "evil" heads of states. The readers of her New York Times essay would not only have benefited from knowing where she is coming from, but would also be keen to learn whether in this case she was speaking for herself or, again, for Barack Obama.

The essay suffers from a particular sort of failure which is typical of political campaigns but which academics usually avoid; namely, the essay reduces the world into a simple black and white dichotomy. The essay argues, as many others have, that calling for a 'war on terrorism' is a glaring policy error, and that instead terrorists ought to be viewed as criminals. We are told that a counterterrorism strategy that treats the terrorists as soldiers (which is implied by the call for a "war on terrorism") encourages policies which trample on rights -- of terrorists as well as of many others -- while glorifying the terrorists as warriors and also violating international law. Regular police methods and the courts, Power implies, are the preferred way to deal with terrorists, a claim echoed by Britain's new Prime Minister, Gordon Brown, who recently states that "terrorism is not a cause; it is a crime."

As I see it, both images -- along with the strategies, tactics and laws they invoke -- are misleading. It is best to follow political science in this matter and view terrorists as a distinct category. (Granted, calling them 'non state actors' is a particularly infelicitous term, too open-ended as well as awkward.) Unlike bona fide soldiers, terrorists do not wear uniforms indicating which government is responsible for their acts. And they frequently and easily pass themselves off as civilians, imposing unique and heavy burdens on those who must fight them. But it does not follow that terrorists are best treated as criminals.

Typically, criminals do not set out to terrorize a nation, change its policies or replace its regime. Above all, criminals do not aspire to use weapons of mass destruction and do not use suicide as a tactic in pursuit of some shared collective goal. Because the threat posed by terrorists is particularly severe, and because terrorists -- especially suicide bombers -- cannot be deterred by post hoc punishments, curbing terrorism requires a different approach than law enforcement. The first goal in dealing with terrorists must be prevention, not prosecution after the act has been committed -- which is the way society limits criminality.

Once we get away from merely trying to score debating points and begin to look for just and effective counterterrorism policies, we find that terrorists are best treated as a distinct group. They are surely entitled to basic human rights, as all human beings are. However, we cannot allow them full access to all the evidence against them, which criminals are entitled to, without creating unacceptable security risks. (I favor allowing terrorists to choose among lawyers who have security clearance, allowing these lawyers to see the government's evidence but not its sources and methods). Terrorists should not be detained endlessly without being charged in a court of law, but the government should have a right to hold them longer than regular criminals, to allow time for finding their partners before it is disclosed that they have been captured.

One may well differ about these details but agree that it makes little sense to treat terrorists as either soldiers or criminals. At issue is not a matter of neat classifications, but ways to maintain the institutions of a free society while protecting it from devastating terrorist attacks.

Amitai Etzioni is University Professor at the George Washington University and, most recently, the author of Security First: For A Muscular, Moral Foreign Policy.