There's a very important debate between whether the question of whether acts of terrorism and terrorists are engaged in warfare or if they are engaged in a criminal behavior and whether terrorism should be treated as if it were a war or if it were just a subset of the type of the general category of crime. Because it's such an important issue, we're going to delve into it more deeply in this lecture. So, there are two competing paradigms. One of war and one of crime. The essence, the key aspect of warfare is that if the war is justified, if it's considered a just war, then the use of lethal force, the killing of opponents and enemies, is actually legal and authorized as a part of warfare so long as the laws of war, the humanitarian laws, the types of weapons that can be used and when it's appropriate to use force are complied with, then it's okay to use lethal force and it's considered an inherent part of warfare. On the other hand, crime is much different. Lethal force is not allowed to be used except in extraordinary circumstances by the police if their lives or the lives of others are in imminent danger. But the general way that the criminal law is prosecuted or the crime is dealt with, is by arrest, capture, and then a judicial process where there is due process and a lot of procedural rules to provide fairness to the individual who has been accused of crime. So, as you can see, it's a much much different paradigm. And the question is, where does terrorism fall on the spectrum between these two activities? And there are a number of reasons why it's appropriate for terrorism to be considered to be warfare. First of all, terrorism is executed for political purpose. Terrorists are trying to make a political point, to have a contest over political power and often, warfare between states is over a matter of dispute on policy or territory. Of course, Clausewitz famously said that warfare is politics by other means. So, in that regard, these two activities are similar. Second, terrorism, like warfare, can lead to a great magnitude of harm. The acts of 9/11, for example, were far and beyond what any normal day-to-day criminal could cause. And of course, the specter, the threat of potential uses of weapons of mass destruction as we saw with the anthrax attacks that followed 9/11, the specter, the thought that that could happen is even more troubling and even gives rise to concerns about an even more widespread resulting harm from terrorism. Third, terrorists perceive themselves to be at war against their enemies. Bin Laden had declared wars, we'll talk about next week, against the United States many years before 9/11. And the thought is that if somebody is at war with you, you're at extreme disadvantage if you're not at war with them simultaneously. So, all three of these reasons are important similarities that terrorism and terrorist activity have with the notion of warfare. There are also a number of ways that terrorism is very similar to crime. First of all, terrorism is generally perpetrated by non-state actors and so is crime. Criminal drug cartels, individuals who are engaged in criminal activities, the mafia, drug-running, all kinds of things like that, these are non-state actors and we talked about it in a prior lecture how states have an inherently different character when it comes to the use of political violence than do non-state actors, in the way the states have to be more restrained in some ways because they interact with the international economy and they have to have relations with other states. But also, states have much more power to execute massive amounts of violence against civilian populations than even the most powerful terrorist groups. So, states are just very different from non-state actors and non-state actors that are engaged in crime, usually not considered to be engaged in warfare. Another big difference is that in crime, violence is directed against civilians. In warfare, violence against civilians is specifically outlawed by the laws of war. That doesn't mean there can't be civilian casualties but the intentional targeting of innocent civilians is prohibited, whereas, criminals are constantly using violence, illegally of course, but constantly using violence against civilians populations as are terrorists to make their point. Third, all terrorist activities violate criminal laws. So, they are, by definition, a criminal activity. Now, you might consider them to be warfare as well but they are certainly, The acts of 9/11, of course, violated dozens and maybe hundreds of different United States federal statutes. Now, some people criticize this argument saying, "Well, if we use criminal law, if we only consider terrorist activity to be crime, then we can only deal with it after the crime has been perpetrated." And famously, Vice President Cheney argued very vociferously that terrorism was war and anyone who considered terrorism to be crime had a pre-9/11 attitude. Now, of course, that was contradicted in many ways but most directly, three months after 9/11 when Richard Reid, the famous shoe bomber tried to detonate a plane that was going from Paris to Miami, he wasn't put in Guantanamo. He wasn't considered a prisoner of war. He wasn't considered a military detainee. Rather, he was arrested when his plane landed. I think it went to Logan Airport and he was prosecuted and given a life sentence. So, that was only three months after 9/11. Another thing about the criminal law that people ignore that I think also undercuts Vice President Cheney's argument is that there are many crimes that take place before an actual incident occurs. So, crimes like conspiracy, the mere planning to do a criminal activity. We also have material support for terrorism. So, supporting terrorist groups as they plan, solicitation of crime, attempted crime, all are considered criminal violations. So, you don't have to wait until an incident happens to actually arrest somebody. You can use many of these other tools. So, it's just wrong to say that the criminal justice system is only retroactive or reactive. It can be forward-looking as well. Now, there are a number of problems with considering terrorism to be a war and I'd like to go through a couple of them. First of all, when we say we are at war with a group, an individual, another state, in some ways it raises the prestige of the enemy itself. They are then considered warriors as well. Indeed, Bin Laden wanted to argue that he was on equal grounds with the United States or other countries as a just warrior engaged in a true and just legal battle. So, just by saying we're at war with a non-state actor, we are elevating his prestige and almost his authority to be a warrior and engaging in warfare. As I mentioned before, the essence of war is that violence is authorized. So, if you're engaged in warfare and you say that the other side is also engaged in warfare, then you can say that they can say that their violence is legitimate in opposition to your violence. Now, there's a lot of arguments with terrorist groups why that shouldn't be true. But certainly, terrorist groups don't see it that way. They see if they're engaged in a legitimate war, then they can engage in violence just as any state may try to engage in violence against them. There's a question here when you're engaged in a terrorism, especially, a lengthy campaign against these non-state actors. Here, we have the flags of the FARC, Al-Qaeda and the IRA. When does this conflict end? Do you have to actually eliminate the entire group until we can say that the war is over? Yes, in history there have been many, many lengthy wars, but it is often very clear when the conflict is over. Whereas, these longstanding conflicts against non-state actors, they don't have a very clear ending point. And that's a problem for a number of reasons. Another important point is that the enemy when, if you're considering that terrorism to be warfare, the enemy can be all kinds of different places. The enemy is not necessarily inside a single state. And you can say you're at war with that state, but they may be located in places, as they are in this situation with Al-Qaeda, in places like Somalia, Yemen, Pakistan, countries with which we are not at war. We are not engaged in an active conflict against those states. Therefore, it creates many, many difficult issues to say that we are at war with individuals and groups that are located within those states. Of course, military interventions abroad are extremely unpopular. And many of the conflicts post 9/11 has led to more anti-Americanism or more anti-Western sentiments inside of those countries, approval ratings for the United States and many of these countries have plummeted among those publics because of our reliance on the tools of warfare to try to deal with the terrorism problem. If terrorism is warfare and you have terrorists within your own country, and I use the United States here, but we could use Great Britain or Spain or Pakistan or a number of other countries and you're saying you're at war with this entity, that means your home front is the battlefield. And that can lead to all kinds of difficult issues. Does that mean that the executive branch or in this case the United States, the president, has special executive powers that they would have with respect to warfare being exercised inside this country? Has all kinds of implications for the potential use of force in the military. Has implications for civil liberties and what people's rights to privacy are, surveillance issues. If the home front is the battlefield, does that mean the extraordinary powers that come with warfare are in place? And does that also mean, since the war doesn't have a clear ending point, that your home front is on a war footing for, is it five years? A decade since 9/11? For 50 years in perpetuity? Is that a healthy thing for societies? Difficult issues for all different societies not just the United States to deal with. Do you want to be on a perpetual war footing? Those are the problems with war. But there's many other problems as well with considering terrorism to be crime. First of all, in many instances, force is needed to deal with terrorist organizations. They are using very high levels of force against civilian populations all over the world. They're located in many remote places that police forces cannot or will not go to. And sometimes, there's a compelling need for either boots on the ground to try to find and combat and undermine terrorist organizations. The United States, of course, has used bombings and also drones to fight against terrorism, and you know, you can have a big debate about whether those are useful and ethical tools. But I think it's irrefutable that in many instances the use of the military or the military force is a very useful counter-terrorism tool, especially, if used in a limited nature and used properly. A problem with calling terrorism crime is the criminal justice system is very cumbersome. It is slow and an important aspect of the criminal justice system is you have to be able to collect hard evidence that is admissible in court to, essentially, charge and then prosecute and then ultimately detain an individual. The rules of warfare in terms of the use of lethal force, the ability to capture people without an arrest based on probable cause that you need in the criminal justice system are very, very useful tools for attacking terrorist organizations for disbanding them, for throwing them off their routines. This criminal justice system in the United States is slow. It's cumbersome. And also, if you're in the criminal justice system, the defendants have lots of rights. They have rights to interrogate the witnesses against them. They can only be convicted in the United States with proof beyond a reasonable doubt. They are not allowed to be questioned without a counsel present. All of those things may interfere with your counter-terrorism operations your desire to gain intelligence. So for all those reasons, using criminal justice to deal with terrorism is problematic. As I mentioned before, terrorists are often located in very remote areas. There are no police forces to speak of in, for example, the FATA region in Pakistan that are capable of capturing, arresting, collecting evidence and then detaining for prosecution. Some of the most violent individuals in the world planning and plotting acts against civilians whether in Pakistan or Afghanistan or even the United States. And this is true in many other places in the world. We're seeing a lot of activity, of course, in Yemen, Somalia. The criminal justice system is just not going to be an effective tool in many of these places where there's not much governance, the presence of the state is minimal or in some instances nonexistent. So for all these reasons, I would urge you to be very wary of people who are telling you, terrorism is just like crime and it can only be handled like crime or terrorism is a form of warfare. And then the tools of war are the only ones and the most proper ones to be used to deal with terrorist organizations and to develop a counter-terrorism policy. I would actually argue that terrorism is very much a hybrid activity. It has elements of both war and crime and therefore, the tools of war and crime are appropriate to use against terrorism, depending on the circumstances. That's a much messier model. It's a much more difficult one to sort out. But in my view and, you know, you can, you're free to disagree, I think thinking of terrorism as a hybrid between war and crime is the most useful way to conceptualize it.
