Crime and Terrorism

Everyone seems to have some ideas about how terrorism is or isn't a kind of crime, and whether it should be pursued by law enforcement or by the military. For a long time now, faced with the very negative results of America's military pseudo-war against terrorism, I have fallen pretty squarely in the law enforcement camp.

My feeling has been that if, after the attacks in 2001, we had used domestic and international law enforcement to pursue those who attacked us as mass murderers, we would have caught them sooner, caused much less damage, and without making us international pariahs as we became during the Iraq travesty. I still think that.

However, I just had a thought today, after reading an interesting article comparing the American and French approaches to the problem, that has modified my position somewhat (the modification doesn't really have anything to do with the current French versus American approaches, the article was just a trigger).

Here's the thought: if we were to classify acts of terrorism in the same domain as other crimes, where would they fit? Clearly, if we ignore psychology and sociology, they would be right at home with other kinds of mass homicides and gross vandalism. And even if we were to include some psychology, they would still find a seemingly natural fit with the various hate crimes that currently adorn our statutes. But although this looks like a natural classification on the surface, it is not at all satisfying, and it is in exploring the reasons behind this dissatisfaction that my new way of thinking has emerged.

When you consider crime, simple actions, while relevant, are never determinative. Any action associated with a crime can be performed with no criminal liability or implication, depending on the motive. That is, the why of an action is just as important as the action itself when it comes to criminality. This is equally true for terrorist acts. However, the goals that motivate terrorism do not match any other crime.

Instead, the goals of terrorism (destabilizing the state, trying to change or to overturn governments, harming the economy, or persecuting a specific group within a state) are much more naturally associated with warfare, not crimes.

And yet, they do not fall naturally in the realm of military activity either. Wars are battles between states, or in the exceptional case of a civil war, between two strong factions within a state who are battling for the control of that state. This is not what terrorists do. In fact, we make a strong distinction between sabotage and guerilla warfare versus terrorism; the difference is primarily that in the latter case, there are no countries at war with each other.

So terrorism doesn't really fit nicely into either the criminal or the military domain. In other words, the answer original question as to whether terrorism is criminal or military, is “yes”. Or “no”. That is, it is neither and both of the above.

I continue to believe, however, that traditional police methods, including international police methods, are better suited to the pursuit of terrorists than military methods, mostly because the scale and the tactics of terrorists are much more similar to those of criminals than to those of armies. On the other hand, since the whole purpose of terrorism is to threaten a state; that is, terrorism is an attack on the state, qualitatively similar to an attack by another nation's army, the normal rules governing law enforcement may not be appropriate; instead, the rules governing warfare are probably more appropriate.

What I would like to see is a removal of the military from our efforts to protect and defend the nation against terrorism, to be replaced by a strong, special branch of law enforcement at the national level that operates using a blend of civil and military procedures. Obviously, we are still fighting down our invasion of Afghanistan, so our military can't just walk away from that war. But it is winding down and will end soon. When it does end, then we need to get our military back on track as a war-fighting force, not a police force.

The United States will be far more hampered that most countries in any effort to make this particular change, because in the US, law enforcement is usually a local or statewide affair, with federal law enforcement applying only in certain restricted types of cases (crimes taking place across state lines, kidnappings, crimes involving the military or federal personnel or property, and so on). It's a matter of limited jurisdiction resulting from our out-dated constitution, that constitutes 51 sovereign states sharing and competing within a single nation. It should be mentioned that the military (which is controlled by the federal government) is similarly restricted in its operations within our borders. Therefore, a new force that was created to fight terrorism using law enforcement techniques but bound by military-style rules regarding procedure would be a considerable extension of the federal government, and would probably be objected to by our states-rights zealots.

Now, in the early Bush years, a new department of Homeland Security was created with the purpose of unifying law enforcement against terrorist threats. The so-called PATRIOT act did, in fact, alter procedure by reducing some civil protections. However, I think that much more than this is necessary.

First, this should be separated from normal law enforcement, because of the differences in procedures. As it is now, the PATRIOT act has opened the door for civilian law enforcement to use new techniques for matters not related to terrorism, for example, drug enforcement. If the new laws applied only to the new law enforcement branch, not to ordinary civilian law enforcement, those kinds of erosion of civil rights would be much less. (On the other hand, there would be definite erosions of civil rights in anti-terrorism enforcement.)

It would all come down to whether those erosions would be justified by the threat of terrorism in ways they are not justified by the threat of criminal violence. I think some changes could in fact be justified on the grounds that an attack on the state itself rather than on persons and property merits a much stronger, more military-like response. However, there is a danger of abuse and so we need to have protections built in, just as there are protections built into the military system: strict rules of engagement, an explicit military code of conduct, and an independent judicial system designed to keep efforts within bounds.

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