Not War, Crimes. Says a former State Department attorney and professor of law at Hofstra, ‘The enormity of the attacks has almost inevitably led to war talk, among the people, opinion writers, and political leaders. “We’re at war,” President Bush remarked on Saturday. “There’s been an act of war declared upon America by terrorists, and we will respond accordingly.”

But the ultimate nature of the attacks is more akin to crime than to war, and should to the maximum extent possible be addressed as such.’ FindLaw legal commentary

And Phil Agre on a similar subject [must read]: War in a World Without Boundaries

An odd feature of the new war is the mixture of languages: George

Bush and his staff constantly switch between the military language

of war and the police language of crime. It is, for example, a war

to bring evildoers to justice. This development is relatively recent.

It was during the Clinton years, for example, that the FBI went

global. Congress vastly increased its funding and it opened offices

worldwide. This was reasonable enough, given the globalization of

crime along with the globalization of everything else. The drug war,

likewise, brought complaints that military forces were being used for

police activities. Before the 1990’s, though, the distinction between

military and police activities was relatively clear. The Korean

War was supposedly a “police action”, but it was obviously a war;

the “police” language was universally understood as a legal fiction

to escape the Constitutional demand that US military activity be

authorized by a Congressional declaration of war. Legal scholars

protested this development, but it has now been institutionalized.

Other wars have ended with criminal tribunals, but these tribunals

have been conducted under the law of war, not under peacetime criminal

law.

So something is taking form here — a “war” whose sole stated aim

is catching individuals who have committed crimes — and it raises

questions. The difference between war-talk and police-talk is

not trivial. When a war is over, the victorious party customarily

lets the rank-and-file soldiers go back to their lives; having

been subject to the laws of their nation-state, and they are regarded

as following orders. With a crime, however, one does not let the

soldiers go. To the contrary, one tries them as individuals for the

full extent of their activities and punishes them if they are found

guilty. In the United States, this punishment can include death.

In a war, either party is empowered to use nearly any means to detain

or kill the soldiers of other. Captured soldiers have certain rights,

but others do not. Criminals, however, have rights, and police are

heavily constrained in ways that soldiers are not. The distinction

between “war” and “crime” is particularly important for the attack

on the Pentagon, which would be an ordinary military action in a war,

but it is also matters for the ways in which the World Trade Center

attackers can be brought to justice.

Here, then, is the danger. Does Osama bin Laden, assuming for the

moment that he is the “commander” of the terrorist forces in whatever

sense is relevant, have “soldiers” who are just following orders?

Or is the United States setting the precedent that the winning power

in a war tries all of the losing power’s soldiers for capital crimes?

That would set back the rules of warfare by centuries. An odd feature of the new war is the mixture of languages: George

Bush and his staff constantly switch between the military language

of war and the police language of crime. It is, for example, a war

to bring evildoers to justice. This development is relatively recent.

It was during the Clinton years, for example, that the FBI went

global. Congress vastly increased its funding and it opened offices

worldwide. This was reasonable enough, given the globalization of

crime along with the globalization of everything else. The drug war,

likewise, brought complaints that military forces were being used for

police activities. Before the 1990’s, though, the distinction between

military and police activities was relatively clear. The Korean

War was supposedly a “police action”, but it was obviously a war;

the “police” language was universally understood as a legal fiction

to escape the Constitutional demand that US military activity be

authorized by a Congressional declaration of war. Legal scholars

protested this development, but it has now been institutionalized.

Other wars have ended with criminal tribunals, but these tribunals

have been conducted under the law of war, not under peacetime criminal

law.

So something is taking form here — a “war” whose sole stated aim

is catching individuals who have committed crimes — and it raises

questions. The difference between war-talk and police-talk is

not trivial. When a war is over, the victorious party customarily

lets the rank-and-file soldiers go back to their lives; having

been subject to the laws of their nation-state, and they are regarded

as following orders. With a crime, however, one does not let the

soldiers go. To the contrary, one tries them as individuals for the

full extent of their activities and punishes them if they are found

guilty. In the United States, this punishment can include death.

In a war, either party is empowered to use nearly any means to detain

or kill the soldiers of other. Captured soldiers have certain rights,

but others do not. Criminals, however, have rights, and police are

heavily constrained in ways that soldiers are not. The distinction

between “war” and “crime” is particularly important for the attack

on the Pentagon, which would be an ordinary military action in a war,

but it is also matters for the ways in which the World Trade Center

attackers can be brought to justice.

Here, then, is the danger. Does Osama bin Laden, assuming for the

moment that he is the “commander” of the terrorist forces in whatever

sense is relevant, have “soldiers” who are just following orders?

Or is the United States setting the precedent that the winning power

in a war tries all of the losing power’s soldiers for capital crimes?

That would set back the rules of warfare by centuries. Red Rock Eaters