Cries of ‘War’ Stumble Over the Law

The smoke from the rubble in New York and Washingtonwas still rising when the first calls were heard from Congress. Various members immediately demanded a “declaration of war” and called on the president to treat the attacks as “an act of war” by Osama bin Laden.

We are not at “war” with Bin Laden. The U.S. does not go to “war” with individuals, let alone a demented fanatic intent on spending a $300-million inheritance to finance acts of mass terror. To declare war on Bin Laden is to elevate him to the level of a state. He is a criminal and nothing more.

In the fog and frenzy of Tuesday’s attacks, such calls for action appeal to a deep national yearning to strike back as a nation.

Some commentators have insisted that precedent for declaring war on Bin Laden and his organization can be found in the war against the Barbary pirates in the early 1800s. The Barbary pirates, however, were the effective governing body of Tripoli, and it was the dey of Algiers who declared war on the U.S. The closest analogy would be to declare war on Afghanistan, which is the base of operations or host nation for Bin Laden.

Of course, the framers were largely unfamiliar with the modern concept of terrorist. Threats on citizens by sub-state actors were largely committed by pirates. The Constitution specifically gave Congress the right to “define and punish” pirates without a declaration of war, a measure properly reserved for states.

Commentators have stressed that we have greater flexibility if we treat this threat as a matter of war. Of course, we do not have Bin Laden’s “flexibility” because we are not terrorists. It is, in fact, our laws that define us as a people and give legitimacy to our acts as a nation.

This does not mean that we must declare war to take action against this terrorist or his organization. For example, one of the complaints is that a law prohibits assassinations while a state of war allows for such personal retribution.

In reality, neither federal law nor the Constitution prohibits the president from ordering the assassination of a foreign national who is a threat to the United States. It is not a law but an executive order that prohibits political assassinations. This order was signed in 1976 by President Gerald Ford after years of abuses by our intelligence agencies.

It may be time to revisit the question of the limited use of assassination. We can craft and monitor a law that allows for such a response in highly restricted circumstances and with the consultation of the congressional intelligence committees. Such a law could actually reduce deaths and increase controls in combating terrorism.

In the past, Ford’s executive order encouraged the use of military strikes in thinly veiled efforts to kill terrorists. The result was unnecessary collateral damage to targets (including killing civilians such as Moammar Kadafi’s 3-year-old adopted daughter in a 1986 bombing raid) and the escalation of a conflict with a military strike. Conversely, efforts to capture someone like Bin Laden for trial could place Americans or our foreign intelligence assets at risk.

This is a dangerous but perhaps unavoidable step to deal with transient threats from individuals such as Bin Laden. But it is hard to see the superior morality in our current approach in which we kill third parties to achieve a plausible deniability of our true motive.

None of this requires a formal declaration of war and the choice of our response is not due to some inherent failing of the law. The law is neither blind nor impotent in dealing with foreign terrorists. While legal principles prefer due process, the law does not require a trial for foreign terrorists.

Our system requires that legal means be used to achieve legal ends. We decide those means and those ends within the general confines of the Constitution.

Osama bin Laden is not a threat to the nation. He is a threat to innocent citizens just as any other violent criminal. Our greatest danger from terrorism is not the act itself but our response to it.