Dan Lindley

Terrorism is War, but Justice Isn't Arbitrary

December 5, 2001

(A version of this was published in the Indianapolis Star on December 9, 2001)

Section 4(c) of Bush's Military Order authorizing military tribunals directs Secretary of Defense Rumsfeld to set the standard of proof for each trial. Variable standards of proof render justice arbitrary. Arbitrary justice is an oxymoron. It is wrong. Other elements of the tribunals make a mockery of justice, including executions without appeal and loose standards of evidence.

However, we are at war and terrorists can be hard to convict. Bush should have adjusted due process, not almost eliminated it. For example, Bush should have set a lower but still fixed standard of proof. The highest standard of proof is that used in criminal trials: 'beyond a reasonable doubt.' A lower but still acceptable standard during the current emergency would be that used in civil courts: 'based on a preponderance of evidence.'

Some critics of military tribunals dogmatically oppose any changes in criminal due process for suspected terrorists. They argue that Bush can not apply military justice because terrorism is not war.

Terrorism is war. War uses force to achieve political ends. Terrorism uses force to achieve political ends. War emphasizes defeat of armed forces to achieve these ends. Terrorism emphasizes causing pain and shock to achieve these ends. These differences in emphases get blurry in practice.

War often involves terror. In World War II, many tens of thousands died in Dresden, Hamburg, Tokyo, Hiroshima, and Nagasaki. Why? To destroy military capability? No, mostly to create shock and lower morale.

In turn, terror often seems like war. From the Marine barracks in Lebanon, through the Khobar Towers, U.S. embassies in Africa, U.S.S. Cole, and the Pentagon, terrorists often target military and government facilities.

Scale does not differentiate terrorism and war. Assassination is an act of war. Political scientists use the threshold of one thousand combat dead to code a conflict as a war, one fourth of the September 11 attacks. Declarations of war are no signpost either. Most wars begin with combat, not formal declarations. Finally, the philosophies and actions of Timothy McVeigh, the group that shot Archduke Ferdinand, and al Qaeda are those of people at war.

Does calling terrorists warriors glorify them? Calling McVeigh a warrior underscores the hopelessness of his cause, and the uselessness of his actions. As a terrorist, he was effective. As a warrior, he was an idiot. What would bring bin Laden more glory, a public trial in a criminal court or a private military tribunal? Milosevic's pronouncements from the Hague suggest that criminal courts make good podiums.

Assassination, terrorism, and war are all forms of war. The question is what to do about each different war. As a nation based on the rule of law, we must assess the threat and do what is necessary, proportional, and morally defensible to reduce that threat.

While McVeigh was easy to arrest and convict, al Qaeda and other terrorist organizations pose huge threats and are hard to arrest and prosecute. Bin Laden said he considers obtaining nuclear weapons a religious duty. Al Qaeda threatened the U.S. with a Hiroshima, and has been seeking nuclear weapons since 1992. The International Atomic Energy Agency reports 18 known attempted thefts of weapons grade nuclear materials. Only half of the former Soviet nuclear stockpile is secure from thefts, and Russians acknowledge one theft of the "highest consequence." The problem of Russian 'loose nukes' also applies to their bio-weapons program. The prospect of weapons of mass destruction (WMD) terrorism is growing, if not imminent.

What will it take to stop WMD terrorists, and what is just in doing so? International criminal courts represent justice in principle, but arresting and convicting terrorists and war criminals often takes many years, bloody force, and deadly sanctions. Even then, many walk because evidence is murky or may reveal intelligence sources.

Why and how did Milosevic and Noriega end up in jail? Lots of bloody force. Why are Karadzic and Qadafi free? Not enough bloody force? It took years of pressure and then bombing to get Milosevic, and over ten years to get minions convicted for Libya's crimes.

Can we fiddle while bin Laden and others seek nuclear and biological capabilities? If justice is measured in saving lives, the best way to put WMD terrorists out of business may often be the fastest way.

The war against WMD terrorism is pressing and challenging. Safety and perfect justice will sometimes be incompatible, yet few things are as antithetical to our principles as arbitrary justice. How to square this circle? Bush is right to use military tribunals, and right to try to find a solution that recognizes the urgency of the situation and the difficulties in prosecuting terrorists. He is wrong to virtually eliminate due process.