Happily, we seem to be on the brink of an intelligent and fruitful debate about military tribunals and the war on terrorism. Mainly because the debate has not shaken out along conventional ideological lines. Not only is there no conventional right vs. left split. We’re also not seeing the sometimes familiar extremes-against -the-middle breakdown.
Let’s take one example of the pro-tribunal argument.
Andrew Sullivan makes the increasingly-convetional but quite apt point that bin Laden and other Al Qaeda terrorists don’t deserve to be tried in civilian courts because they are not ‘criminals’ in the common sense of the word; they’re soldiers at war with us.
But this complicates the question as much as it clarifies it, because ‘war’ also involves a slew of protections. When you beat another country at war, you don’t try their leaders and soldiers for murder. War-killing is different from murder and it is, in some sense, permissible.
Now obviously the sort of violence Al Qaeda has used against the United States is so totally beyond the laws of war that you can make a pretty straightforward argument that bin Laden, et.al. are war-criminals. But then we’ve got a precedent for how we deal with war criminals too. And at least during this century it hasn’t been with military tribunals.
The problem here, I think, is a much broader one than military tribunals. It’s a meta-question that we’ll likely be dealing with for decades to come, and one that’s being ignored. That is, the world-wide rise of non-state actors and organizations and how they interact with states.
This isn’t meant as cheekiness or to diminish the seriousness of the situation. But what is Al Qaeda, really, but the world’s first terrorist NGO? None of our existing institutions or metaphors equips us for dealing with an outfit like Al Qaeda. And every effort to shoehorn it into one or the other of the existing ones is bound to produce an awkward fit.