In closing Guantanamo, we are told we must find legal ways to deal with those now incarcerated there. Some hold that we should treat them like criminals, entitled to the same legal rights as Americans. Others, as soldiers, protected by the Geneva Conventions. As I see it, our minds are big enough to accommodate more than two options. Terrorists clearly are neither garden variety criminals nor soldiers but a third, distinct category.
Clearly terrorists are human beings, and as such they are entitled to some basic rights, for instance not to be tortured and not to be held indefinitely without being charged. However it does not follow that they are entitled to the same rights as an American citizen who never lifted his hand against his country. They are best treated as a category in and of themselves.
One major reason they cannot be treated as criminals is that suicide bombers, as a rule, cannot be hauled into a court, brought to justice, or deterred by the threat of life in prison. What gives pause to criminals has little effect on terrorists. They are gone once they have carried out their mission.
Moreover, typically criminals do not set out to terrorize a nation, to change its policies or replace its regime. Criminals do not aspire to use weapons of mass destruction and do not commit suicide as a tactic in pursuit of some collective goal. Because the threats posed by terrorists are of a much higher magnitude than those posed by criminals, curbing terrorism requires a different approach than that of law enforcement. The first goal in dealing with terrorists must not be prosecution, which takes place after the act has been committed and is generally the way society limits criminality, but should instead be prevention.
To hold that terrorists cannot be treated as criminals is not to suggest that the "war on terrorism" is the best metaphor or that terrorists are to be treated as soldiers. As I see it, both images -- along with the strategies, tactics and laws they invoke -- are misleading. It is best to view terrorists as a distinct category. Unlike bona fide soldiers, terrorists do not wear uniforms indicating which government is responsible for their acts. They frequently and easily pass themselves off as civilians, leading to a unique set of burdens on those who must fight them. This is what I did when I helped blow up British installations in Palestine, erected to prevent Jews escaping Nazi Europe from reaching their new homeland.
Terrorists are surely entitled to basic human rights, as are all human beings. However, we cannot allow them full access to all the evidence against them, which criminals are entitled to, without creating unacceptable security risks. I favor allowing terrorists to choose among lawyers who have security clearances, allowing these lawyers to see the government evidence but not sources and methods. Terrorists should not be detained endlessly without being charged in a court of law, but the government should have a right to hold them longer than regular criminals to allow time for finding their partners before it is disclosed that they have been captured.
Up to a point these anti-terrorism measures can be viewed as merely modifications of the criminal justice system. However, given their scope and number, in effect they amount to a different approach. This is most evident when we acknowledge that prevention requires questioning and even detaining people who have not yet violated any law.
In short, although one might differ about how far one can go in trying to deter terrorism, and how to proceed, one may still agree that it makes little sense to treat terrorists either as criminals or as soldiers. At issue is not a matter of neat classifications, but ways to maintain the institutions of a free society while also protecting it from devastating attacks.
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