War offers best defense

October 09, 2001|By Steven Lubet

CHICAGO - A new peace movement was taking shape in the United States even before Sunday's air strikes against Afghanistan.

In the weeks after Sept. 11, there were rallies on more than 140 college campuses calling for a nonviolent response to the terrorism that struck New York and Washington. Now we are sure to see an expansion of the antiwar movement.

To their credit, the protestors argue for restraint, but not inaction. They demand "justice, not war," insisting that our reaction should be limited to "bringing the perpetrators to trial," perhaps before an international court.

These are noble sentiments, shared by many and inspired by an admirable idealism. But they are sadly and perhaps dangerously wrong. The terror attack on the World Trade Center was not an ordinary crime, and it cannot be adequately addressed through the criminal justice system.

The judicial system is designed to decide individual cases in order to punish offenders and deter others. It is deliberately cumbersome and slow, and international courts are even slower since adjudication is intended for good reasons to constrain the exercise of government power.

Indeed, many of the rules of criminal procedure actually impede effective prosecution. In criminal justice, it is rightly said that we prefer to free the guilty, rather than risk convicting the innocent. Every trial starts from scratch, as though nothing else has ever happened. Proof in one trial does not carry over into the next, and the confession of one defendant is usually inadmissible against the others.

In contrast, the purpose of the military is to protect us from enemies, especially foreign enemies who operate collectively rather than as individuals. The terrorists who attacked the Pentagon and the World Trade Center fall precisely into that category. They were supported and facilitated by an international network of training camps, political offices, financial institutions and rogue governments.

The people who planned and executed the attacks are criminals in the sense that they are responsible for thousands of murders, but they are also aggressors in the sense that they have purposefully assaulted the order and security of our society. We are, of course, entitled to bring them to trial. More than that, however, we are obliged to incapacitate their forces, to cripple their ability to strike more terror and to do it as quickly and efficiently as possible.

That is the crucial distinction between prosecution and war. Prosecution is reactive, used after the fact to punish known offenders. In a state of war, however, the military is proactive, tracking down the enemy in order to destroy its ability to commit further atrocities.

The deployment of the military - that is, the acknowledgment that we have been attacked and not merely victimized - allows our government to employ the broad options of preventive warfare rather than depend solely on the much more limited tools of criminal prosecution.

This means, for example, that the army does not need to obtain a search warrant or identify "wanted" individuals before penetrating and destroying a training camp. Intercepted terrorists can be questioned without Miranda warnings and the appointment of defense counsel (due process rights apply in criminal investigations but not to military interrogations or intelligence gathering).

This does not mean, however, that there are no rules. Even in a state of war, the human rights of innocent civilians must be protected, as must enemy operatives who are captured or surrender.

Most importantly, the start of military action simply recognizes that we are faced with an extraordinary threat that cannot be defeated through law enforcement alone.

It can be carried out through a series of calibrated operations that stop well short of "total war," such as the surgical strikes against air bases and terrorist camps that were conducted Sunday. We are not compelled to launch massive ground operations in Afghanistan or to blockade other hostile countries or even to give up the idea of bringing Osama bin Laden to trial.

Those are all tactical choices that will have to be made for sound tactical reasons. A set of trials might be the byproduct of a war against terrorism, but that should not be the defining objective. Instead, we must pursue the overriding goal of safeguarding our population and disabling the enemy.

We are in a new and perilous situation in which the military provides our best defense, not the police and courts.

This crisis must be approached through rules of engagement, not rules of procedure.

Steven Lubet is a professor of law at Northwestern University. He is the author of Nothing but the Truth: Why Trial Lawyers Don't, Can't, and Shouldn't Have to Tell the Whole Truth (NYU Press, 2001).

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