On Tuesday, the New York Times reported that Rep. Peter King (R-NY), chairman of the House Committee on Homeland Security, has complained that the investigation into last September's attack on the U.S. consulate in Benghazi is being conducted by the FBI rather than the U.S. military.
"It would be a serious mistake to return to the policy of treating attacks as a law enforcement issue," he reportedly told the Times. "To me, this is a war this is not a street crime and should not be considered a criminal justice issue."
Now, that raises an interesting question: at what point does an act of political violence, whether or not called terrorism (and one might dispute whether an attack on an official government facility as opposed to a civilian target even fits that description) cross the line from criminality to war?
Ironically, in a speech to Britain's Oxford Union only two weeks earlier, the Pentagon's outgoing top lawyer, general counsel Jeh Johnson, allowed as how, in the conflict against al-Qaida, a "tipping point" would be reached in which "our efforts should no longer be considered an armed conflict."
Instead, he argued, it would thereafter become "a counterterrorism effort against individualsÖfor which the law enforcement and intelligence resources of our government are principally responsible" - precisely the condition to which Rep. King objects.
Commenting on Johnson's speech in the Washington Post, CNN "GPS" host and TIME columnist Fareed Zakaria noted that defining the 9-11 attacks as an act of war had resulted in granting the federal government in general, and the executive branch in particular, extraordinary emergency powers for an unprecedented eleven years.
Claimed pursuant to the"Authorization for Use of Military Force" granted by Congress two days after 9-11 with little debate, those powers have enabled successive administrations to eavesdrop on citizens without warrant, incarcerate known and suspected enemies indefinitely without trial, target and kill U.S. citizens abroad, and conduct effectively unrestricted military operations in nations with which we aren't at war.
In a recent New York Law School Review article, former Bush assistant attorney general John Yoo, notoriously responsible for a series of memos legally justifying these and other practices, argues that "War by its nature seeks prevention, not punishment." It thus both requires and permits practices that would be unacceptable in time of peace.
"When a nation goes to war," he points out, "it seeksÖto prevent future harms to society inflicted by enemy attacksÖIt does not wait to attack until it has proof beyond a reasonable doubt, or even probable cause." Instead, he insists, "The United States need not wait until an al-Qaida attack has occurred before it can launch a missile against a terrorist camp or send a special operations team to take out a terrorist leader."
But that argument, to which few would object when applied to the classic Clausewitzian view of war as a temporally finite "act of force to compel an enemy to do our will," begins to break down when government instead seeks to redefine war as a virtually secular condition, to be abandoned only if and when every conceivable potential enemy has been permanently neutralized in one way or another.
Defining al-Qaida as a belligerent and the contest with it as war becomes even more problematic, moreover, when, as already has happened, it fragments and metastasizes, producing offshoots and copycats in places and with agendas that often bear only the flimsiest relation to the late unlamented Osama bin Laden's original objectives.
It's certainly true, as Yoo argues, that "War crimes trials at The Hague will not deter al-Qaida." Suicide bombers, he notes, "are not susceptible to deterrence." Neither, however, is a lot of other criminal behavior, as the persistence of organized crime proves. For the one as for the other, the only final safety lies in removing its authors from circulation. But we long ago decided as a society that we would not permit that requirement to override basic civil liberties and the Bill of Rights.
Our real problem is that we lack a contemporary category in which to fit preventative and punitive efforts against violent extremists who don't warrant the safeguards of belligerence but to whom we can't afford to extend all the protections of a still largely unenforceable international juridical regime.
Once upon a time, we had such a category. We called those threats to peace and tranquilty "piracy," and every government had both the right to use force against pirates and the obligation not to succor them, at penalty of being treated itself as outlaw. When possible, pirates were captured, tried, and punished like any other criminals. Caught in the act and resisting, they were unceremoniously dispatched.
It's past time to resurrect that concept and the legal practices it supports, and to end the fiction, increasingly dangerous to the very society that it seeks to protect, that the United States is "at war" with any Tom, Dick, and Harry who bears us a grudge.