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Jewish World Review Sept. 25 2001 / 9 Elul, 5762

Steven Lubet

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Dangerous idealism: Crisis must be approached through rules of engagement, not rules of procedure -- EVEN before President Bush's tough speech before Congress last week, a new peace movement was slowly developing in the United States. There have already been demonstrations on more than 140 college campuses, calling for a non-violent response to the terrorism that struck New York City and Washington, D.C. The protestors want restraint, but not passivity; their organizing principle is "Justice Not War."

These are noble sentiments, shared by many and inspired by an admirable idealism. But they are sadly--and perhaps dangerously--wrong.

The terror attack on the World Trade Center was not an ordinary crime, and it cannot be adequately addressed through the criminal justice system. The judicial system is designed to decide individual cases, in order to punish offenders and deter others. It is deliberately cumbersome and slow, since it is intended--for good reasons--to constrain the exercise of government power.

In criminal justice, it is rightly said that we prefer to free the guilty, rather than risk convicting the innocent.

Indeed, many of the rules of criminal procedure actually impede effective prosecution. Every trial starts from scratch, as though nothing else has ever happened. Proof in one trial does not carry over into the next, and the confession of one defendant is usually inadmissible against the others.

In contrast, the purpose of the military is to protect us from enemies, especially foreign enemies who operate collectively rather than as individuals.

The terrorists who attacked the Pentagon and the World Trade Center fall precisely into that category. They were supported by an international network of training camps, political offices, financial institutions and--it is virtually certain--governments.

The people who planned and executed the attacks are criminals in the sense that they are responsible for thousands of murders, but they also are aggressors, in the sense that they have purposefully assaulted the order and security of our society.

We are, of course, entitled to bring them to trial. More than that, however, we are obliged to incapacitate their forces, to cripple their ability to bring down more terror, and to do it as quickly and efficiently as possible.

That is the crucial distinction between prosecution and war. Prosecution is reactive, utilized after the fact to punish known offenders. In a state of war, however, the military is proactive, tracking down the enemy in order to destroy their ability to commit further atrocities.

The deployment of the military--that is, the acknowledgment that we have been attacked, and not merely victimized--allows our government to employ the broad options of preventive warfare, rather than depend solely on the much more limited tools of criminal prosecution.

This means, for example, that the Army does not need to obtain a search warrant before penetrating and destroying a training camp. Intercepted terrorists can be questioned without Miranda warnings and the appointment of defense counsel (due process rights apply in criminal investigations, but not to military interrogations or intelligence gathering).

This does not mean, however, that there are no rules.

Even in a state of war, the human rights of innocent civilians must be protected, as must enemy operatives who are captured or surrender. Most important, a "war" simply recognizes that we are faced with an extraordinary threat that cannot be defeated through law enforcement alone. It can be carried out through a series of calibrated operations that stop well short of "total war."

We are not compelled to strike or invade Afghanistan, or to blockade other hostile countries, or even to give up on the idea of bringing Osama bin Laden to trial. Those are all tactical choices that will have to be made for sound tactical reasons. A set of trials might be the byproduct of a military campaign, but that should not be the defining objective. Instead, we must pursue the overriding goal safeguarding our population and disabling the enemy

We are in a new and perilous situation in which the military provides our best defense, not the police and courts.

Alas, this crisis must be approached through rules of engagement, not rules of procedure.

JWR contributor Steven Lubet is Professor of Law at Northwestern University and the author, most recently, of Nothing But the Truth: Why Trial Lawyers Don't, Can't, and Shouldn't Have to Tell the Whole Truth . Comment by clicking here.


08/16/01: Who died and made the federal judges gods?

© 2001, Steven Lubet