U.S. can beat bin Laden without a war

September 18, 2001|By Jonathan Turley

WASHINGTON -- There is something about the word "war" that is almost irresistible in confronting the incomprehensible.

Within hours of the explosions in Washington and New York, calls for a declaration of war came from politicians, commentators and citizens across the country. War represents a total commitment and in recent decades has become a popular way for expressing our common cause against modern scourges. Starting with Lyndon Johnson's "War on Poverty," we have declared wars on everything from inflation to illiteracy to drugs.

This is different.

War means more than an affirmation of a public goal. To declare war on Osama bin Laden -- if he indeed is responsible for the Sept. 11 attacks -- is to elevate him to the level of state. Bin Laden may have already succeeded in hitting the trifecta of terrorism; we do not need to augment his stature by treating him like a country. The president's declaration suggesting that bin Laden is even capable of "an act of war" inflates his status and the quality of his act.

Terrorists use the language of "declaring war" precisely for this reason. They want their atrocities to be considered in the terms of a military action and formal war. Every statement of our leaders that treats this as a public war removes the distinction between terrorists and legitimate state actors.

The framers of the Constitution saw this distinction. Of course, they were largely unfamiliar with the modern concept of a terrorist. Threats on citizens by sub-state actors were largely committed by pirates. While not expressed, the Constitution reflects the different treatment to be given tostate and sub-state actors.

The framers specifically gave Congress the right to declare war on enemy states. Notably, with regard to such states, Congress was also given the authority to order acts short of formal warfare such as "letters of marque and reprisal," which allowed for seizure of ships and the use of private forces.

The framers separately gave Congress the right to "define and punish" pirates without a declaration of war. Bin Laden is closer to a pirate than a state. Criminals do not increase their status by increasing the enormity of their crimes.

It is the pirating provisions and the general legislative authority of Congress that are more relevant to bin Laden than the war provisions of the Constitution.

We do not go to war with individuals. When individuals kill our citizens, we hunt them down as criminals.

It was suggested that there is precedent for such a declaration in the war against the Barbary pirates in the early 1800s. Here, it is argued, Congress "declared" war on a group of simple pirates harassing our ships and taking our citizens hostage. This historical event, however, has been grossly misreported.

The Barbary pirates were not a collection of rogue vessels but actual governing authorities. While ostensibly part of the Ottoman Empire, Algiers, Tunis, and Tripoli were ruled as autonomous regencies. These governments made considerable profits by declaring war on various countries, taking their ships and ransoming both their crews and future peaceful passage.

Algerine pirates actually held our citizens hostage for up to 11 years (some died in captivity), and Congress repeatedly appropriated huge ransoms and payoffs to these regencies. It was the leader of Algiers, the "Dey," who declared war on the United States.

Congress did not actually declare war on the pirates but "authorized" the use of force against the regencies after our bribes and ransoms had no effect. This may have been because of an appreciation that a declaration of war on such petty tyrants would have elevated their status. Accordingly, they were treated as pirates and, after a disgraceful period of accommodation, we hunted them down as pirates.

There is no precedent for declaring war on an individual or individual organization. More importantly, there is no need to do so. Despite popular conceptions, the government does not have greater flexibility in dealing with bin Laden as part of a formally declared war. Foreign terrorists are not American citizens entitled to trials or due process. They are not recognized as "persons" in the Constitution.

The framers were aware of every assortment of pirate, brigand and privateer. They expressly gave Congress authority to take steps to combat such sub-state actors, including a variety of measures short of war. To put it bluntly, we do not have to declare war on bin Laden to destroy him.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University in Washington.

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