I have received mail this week from readers objecting to my recent contention that the United States is not at war. There are two main strands to this debate: Are we at war, and should we be? The first is a matter of law: Can we be at war without a congressional declaration? Is war a subjective status (as in, "hmmm, sure feels like a war out there today") or is it a formal, objective legal state? This question has already launched a thousand constitutional, scholarly, and rhetorical ships, and I'll get back to you with an answer if Eugene Volokh and I get it sorted out this weekend over e-mail.
The second—and to my mind, more urgent—question is how did we come to be talking in terms of a "war" at all? Why does the war model—soldiers, uniforms, nation-states, civilians, weapons, and battlefields—apply to our fight against terrorism? The administration calls this a "war on terror" to avail itself of the limitless executive powers—mainly domestic detention and surveillance—triggered in wartime. This "war on terror"—wherein we track down rogue al-Qaida members, then hold and/or torture them—is not a conventional military operation that meets any technical or international definition of "war." And the oddest part of it all is that despite all this insistence that we are fighting a war, almost no one can come forward with a coherent theory of why.
Yes, America was attacked on Sept. 11. But there have been terror attacks on U.S. targets before—al-Qaida attacks that weren't met with a unilateral declaration of war or a rolling out of any Patriot Acts and their creepy DOJ surveillance progeny. There were criminal prosecutions and convictions in the destruction of PanAm Flight 103 over Lockerbie, Scotland; the earlier WTC attack in 1993; the 1998 bombings of two U.S. Embassies in East Africa; the (foiled) "Day of Terror" plot (to bomb New York City tunnels, the U.N. building, and the FBI building in New York); and the (foiled) millennium bombing of LAX in 1999. The only difference between these plots and Sept. 11 was that their combined death tolls were in the hundreds, as opposed to the thousands. While that difference in scale is not morally insignificant—not by any means—it is not necessarily legally significant. The difference between a "crime" and a "war" doesn't necessarily come down to integers.
Before we decide that the only way to fight terror is through war, it's worth recalling that the criminal prosecutions for each of the above acts of terror were not only successful; they were also constitutional, frequently transparent, and overwhelmingly legal and fair. What happened on Sept. 11 to discredit the criminal law system? What failures in this system drove the administration to call immediately for secret roundups of "material witnesses," military tribunals, and secret deportation hearings? Did something go so badly in the first WTC prosecution that led to the decision to detain "enemy combatants" without trial forever? How did we lose faith in a system that worked so well?
Criminal trials are not going to solve every problem facing the nation right now: They cannot stop Iraq from launching weapons of mass destruction, and they would not have removed the Taliban from power. But it doesn't follow that the criminal law cannot bring terrorists to justice, nor does it follow that we need to gut the existing system—replacing openness with secrecy, and due process with parodies of process—to do so.
First WTC Bombing: On Feb. 26, 1993, a car bomb exploded in the basement of the World Trade Center, leaving six dead and over a thousand wounded. A cell of fundamentalist Muslim terrorists planned and executed the attacks, and zealous domestic investigation, along with diplomacy and extraditions, led to the trial and conviction of all but one of the terrorists. In 1995, after a nine-month trial, 12 defendants were convicted in federal district court of conspiracy to bomb the World Trade Center, as well as of plotting in 1993 to bomb the United Nations, the FBI building in New York, and the Holland and Lincoln tunnels, and to assassinate Egyptian President Hosni Mubarak. (Evidently we all missed the trial because we were too busy watching O.J.)
African Embassy Bombings: More than 220 African and American citizens were killed in two almost simultaneous bombings of the U.S. Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, in 1998. Twenty-three defendants were charged with various offenses, four of whom were convicted in federal court on May 29, 2001. All were sentenced to life in prison. Others are being held; still others remain at large.
Millennium Bombing: A plot to bomb the Los Angeles International Airport in the midst of the millennium festivities of 1999 was foiled when Ahmed Ressam was arrested crossing the border from Canada in a car with a trunk full of explosives. Last year, after a three-week trial in Los Angeles, a jury found Ressam guilty of nine criminal counts—including conspiracy to commit an act of international terrorism. Despite a mini-squabble with the Canadian government—which didn't want to share intelligence secrets in court—the testimony of Canadian intelligence officials was provided at the eleventh hour, without incident. Facing 57 to 130 years in prison, Ressam agreed to a deal with the DOJ and has since provided the government with detailed information about training with the Taliban and the structure of al-Qaida. He will testify against Zacarias Moussaoui and Abu Zubaydah (reportedly a top lieutenant in al-Qaida), who was captured last March. Ressam also provided crucial testimony against his co-conspirator in the millennium plot, Mokhtar Haouari, who was also convicted in 2001.
No one would tell you these trials were disasters. No one would argue we are less safe today as a result of these criminal prosecutions. Certainly there were security issues: information to be sealed; witnesses, judges and jurors to be protected; and fears throughout of further incidents. But the procedures instituted for handling those issues worked. The investigations leading up to the trials also uncovered future plots. And the convictions have produced government informants and witnesses for future prosecutions. Terrorists have been incapacitated for life, and cells have been disrupted. Still, the national presumption remains that prosecuting terrorists via standard criminal means has failed us somehow; perhaps because no one trial can pre-empt all future attacks.
No one war will pre-empt all future attacks either.