This week, retired Gen. Wesley Clark and UCLA law professor Kal Raustiala penned what might be the least persuasive op-ed of the new millennium in The New York Times. Clark and Raustiala argue that we shouldn't treat members of al-Qaida as enemy combatants because such a designation is too high a compliment. "Labeling its members as combatants elevates its cause and gives al-Qaida an undeserved status," they argue. Therefore, they conclude, "the more appropriate designation for terrorists is not Œunlawful combatant' but the one long used by the United States: criminal."
They do not address the fact that under our system of law, "criminal" is the most advantageous designation a terrorist can get. It comes with all sorts of rights and rules terrorists can exploit: Miranda, speedy trials, the right to see classified evidence, the benefit of a reasonable doubt, the right to remain silent, etc.
We did not designate al-Qaida "enemy combatants" to elevate their status but to lower it. Under current treaty obligations, if we viewed al-Qaida as actual soldiers, they would be entitled to the protections of the Geneva Conventions even though they reject those conventions themselves. And if we treated them like criminals under American law, we'd have to launch "CSI: Kabul," collecting evidence for every "arrest." Clark and Raustilia say al-Qaida terrorists are more like pirates. But last I checked, Blackbeard wasn't interested in imposing a worldwide theocracy, and his henchmen weren't keen on blowing themselves up to achieve it.
If treating terrorists like any other criminals is such a good idea, why don't they recommend such an enlightened approach to Israel? After all, when Hezbollah rains down rockets on your cities, the sagacious response is to issue an arrest warrant and convene a grand jury.
We obviously need rules for dealing with people we capture, which is precisely what the Bush administration has been trying to establish. But saying that we should treat terrorists like criminals is to argue for doing less than nothing.