As an Irish American politician, the late, great Sen. Daniel Patrick Moynihan felt he had a duty to speak out against the Irish Republican Army in Northern Ireland. He considered IRA members to be nothing more than murderers. From time to time, some of his constituents who sympathized with the IRA would complain. "There is a war in Northern Ireland," they pleaded. "The IRA are not terrorists; they are soldiers."
For as long as there has been terrorism, terrorists have justified their actions by calling themselves warriors. A glance at the names such groups give themselves reveals how central warfare is to their self-image: the al-Aqsa Martyrs Brigades, the Lord's Resistance Army, the Salafist Group for Preaching and Combat. Conversely, throughout history, most governments fighting terrorist groups have tried to delegitimize them as criminals and bandits.
After the Sept. 11 attacks, President Bush chose a radically different approach. He declared the fight against al-Qaeda to be a "war" -- even comparing it to World War II and the Cold War -- and labeled suspects "combatants" who were subject to military detention. He ridiculed Sen. John Kerry for suggesting that terrorists should be fought primarily by law enforcement means. With the 2001 attacks, he said, "the terrorists and their supporters declared war on the United States of America, and war is what they got."
Did it occur to anyone in the administration that maybe, just maybe, "war" is precisely what Osama bin Laden wanted? Once America accepted his rhetorical call to war, after all, bin Laden would not be just a mass murderer hiding in a cave. He could claim to be the leader of a mighty army going head to head with a superpower on a global battlefield, equivalent in America's eyes to the greatest adversaries it had fought in the past.
Look at the statement bin Laden's deputy, Khalid Sheik Mohammed, made last week before his "combatant status review tribunal" at Guantanamo Bay. This man wore the status symbol of "combatant" proudly. After confessing to planning the Sept. 11 attacks, he said: "I did it but this [is] the language of any war." In war, he said, "there will be victims." Perversely, he compared himself to George Washington and said that if Washington had been captured by the British, he, too, would have been called an "enemy combatant." The war paradigm has reinforced terrorists' narrative that they are warriors, not outlaws, and thus are entitled to kill their enemies.
Those on the front lines of America's fight against al-Qaeda increasingly get this. The Army's new Counterinsurgency Manual, for example (drafted under the supervision of Gen. David Petraeus), says that in fighting nontraditional foes such as al-Qaeda, it is never possible to kill or capture every fighter. The key to victory lies in cutting off the enemy's "recuperative power" by diminishing its legitimacy while increasing your own.
"To establish legitimacy," the manual says, "commanders transition security activities from combat operations to law enforcement as quickly as feasible. When insurgents are seen as criminals, they lose public support."
What did the administration gain by treating suspected terrorists as combatants? Only a justification for interrogating them for years without bringing them to trial. These abusive interrogations probably yielded some useful information; many intelligence insiders have said that they also yielded much that was misleading. The gains have surely been outweighed by what has been lost: America's moral authority and the opportunity to discredit these killers as the cowardly criminals that they are.
Imagine if Khalid Sheik Mohammed had been brought before a real court after he was captured. It wouldn't have precluded using the military to strike at al-Qaeda in its Afghan hideaways or interrogating prisoners and using intelligence to preempt attacks. It would simply have showcased American justice and values in dealing with captives.
Imagine if President Bush, instead of aping al-Qaeda's call to war, had said to bin Laden and his ilk what federal Judge William Young said to "shoe bomber" Richard Reid when he convicted him: "You are not an enemy combatant. You are a terrorist. You are not a soldier in any war. . . . To give you that reference, to call you a soldier, gives you far too much stature."
Bush's challenge after Sept. 11 was to bring men like bin Laden and Mohammed to justice without elevating them. He has done the reverse. Not a single Sept. 11 planner has been held accountable for his crimes, but they can all crow that America sees them as they see themselves: as soldiers, not criminals.
Tom Malinowski, Washington advocacy director of Human Rights Watch.