CIAO DATE: 10/07
The National Interest
Family Feud: The Law in War and Peace
David B. Rivkin, Jr. and Lee A. Casey
Abstract
IT IS NO secret that the War on Terror’s prosecution has revealed fundamental differences between the United States and Europe over how to meet the challenges of global terrorism and jihadi Islamism. After the September 11 attacks, the United States chose a military response and considers itself to be engaged in a legally cognizable armed conflict to which the laws and customs of war apply. That view, although occasionally questioned by American politicians like Senator John Kerry (D-MA) during his unsuccessful 2004 presidential campaign, is supported by most Americans and is not likely to change regardless of who moves into the White House on January 20, 2009. This public sentiment aside, the nature of the American civilian legal system, which features many procedural and substantive protections that make it difficult to prosecute wartime combatants, especially those captured overseas, as well as the need to prevent rather than simply to punish terrorist attacks, effectively requires adoption of a war-fighting over a law-enforcement approach to transnational terror.
By contrast, governments Left and Right in Europe have evinced a clear preference for treating Al-Qaeda and other jihadists as a difficult, but manageable, political or law-enforcement problem. Moreover, not content with a “live and let live” strategy, they have sought to impose their legal and normative preferences on the United States and have reacted with varying degrees of disappointment, dismay and outrage at the Bush Administration’s war policies. This is especially true of the president’s decisions to classify captured Al-Qaeda and Taliban operatives as “unlawful enemy combatants”, to detain them without criminal charge at Guantanamo Bay and to try them in military commissions rather than in civilian courts. If anything, attitudes in Europe have hardened since Congress enacted the Military Commissions Act of 2006. This law provides an explicit statutory basis for the president’s policies and effectively vitiates the oft-invoked criticism that he employed the wartime legal paradigm solely on his own constitutional authority.
But more is at stake here than a tactical spat over how to deal with Al-Qaeda. There seems to be little doubt that Europe, or at least the European Union’s leading countries, is consciously playing for the West’s moral leadership, and Europe believes that it can win. Like it or not, the United States is now engaged in an ideological struggle resembling in some respects the ideological battles of the Cold War except that, this time, its closest friends and relations are in the opposition. Ask any cop on the beat; there is nothing more dangerous or dirty than a family fight, but this is a fight America must accept and win—for everyone’s sake.