Sesame Street and the Classification Problem: Terrorism: Is it War? Or Crime? Or Something else?

Harvard Law School Dean Martha Minow famously tells her first year students that law is simply a variation on the Sesame Street song "Which of These Things Is Not Like the Other."  Martha's insight is that much of law is about putting an issue in the right legal category, and many times legal disputes are centered on this classification problem.

Perhaps the best recent example of a legal classification problem has been how we address terrorism  after September 11, 2001.  Were these terrorism attacks an act of war to which the principles of the Law of Armed Conflict apply?   Or were these attacks criminal acts that merit a law enforcement response subject to International Human Rights Law?  As Ken Roth of Human Rights Watch explains in a must-read review of Rosa Brooks' How Everything Became War and the Military Became Everything: Tales From the Pentagon, this classification decision has serious life and death consequences:

In war, opposing combatants can be targeted and killed by virtue of their status as combatants, without regard to their conduct at that moment. Captured combatants in wars between countries can be detained without charge or trial until the end of the armed conflict. In peacetime, by contrast, law enforcement rules allow the use of lethal force only as a last resort to stop an imminent lethal threat, and detentions generally can be sustained only after charges have been filed and a trial has taken place.

As a result of these differences, the U.S. national security establishment (including yours truly) and human rights groups have been at loggerheads:  the U.S. in both the Bush and Obama Administration took the position that the Law of Armed Conflict (governing war) was the appropriate legal framework, while human rights group insisted otherwise.  Rosa Brooks suggests that it is time to recognize that the terrorism that we now face is neither war nor peace, and we ought to create a new framework.  Roth explains:

For much of the past fifteen years, the US officials favoring expansive powers to fight terrorism have been at loggerheads with human rights organizations that have been trying to limit those powers. In Brooks’s view, this debate is going nowhere because it is so difficult to demonstrate conclusively whether standards for war or for law enforcement should apply. As with the famous drawing, reproduced by Wittgenstein, that can be a rabbit or a duck depending on how you look at it, Brooks fears there is no right answer to this debate—or at least no answer that will convince someone already wedded to the opposing point of view. “Many U.S. counterterrorism practices simply defy straightforward legal categorization,” she concludes. The issue, she says, is not one of “lawbreaking, but of law’s brokenness.”

As Brooks notes, “there’s nothing natural or inevitable about any of our familiar categories or distinctions.” They reflect the concepts of a particular era. Rather than continue the effort to divide the world into two categories, she suggests “recognizing that war and peace are not binary opposites, but lie along a continuum.” The task then, she concludes, is to ask not what the law requires, since the law’s answer depends on the difficult-to-resolve dispute over the definition of war or peace. What matters instead is what is right, based on our values. Lawyers may feel less at home with this debate, she observes, but many others will feel that they can contribute to solutions.

Let me give one example that supports Brook's idea that we need to come up with a new framework: Under the Laws of Armed Conflict, when you capture the enemy, they are put in POW camps for the duration of the war.  This is not punishment.  Enemy soldiers are not criminals.  Instead we keep them captive so they can't rejoin the fight.  This works rather well when the war takes a few years, but becomes problematic when we are fighting a "war" that has already gone on for over 15 years, and will likely go on for decades later.  When GITMO effectively becomes a nursing home in 20 or so years, the logic of detention becomes untenable.

While I am not in full agreement with either Roth (who ultimately concludes that the human rights groups had it right all along) or Brooks (who argues for a new construct), the full review and book are well worth reading.

What do you think?