15 Mar “The Language of War”
If there is any lingering doubt about whether we are engaged in a global war on terror, the transcript from Khalid Sheikh Mohammed should dispel those doubts. Call it whatever you want, but the terrorist Khalid Sheikh Mohammed unequivocally describes it as war.
There are two significant portions of the transcript. First, is Mohammed’s enumeration of various al Qaeda attacks against American targets. Second is his lengthy discussion of his justification for the attacks.
Regarding the enumeration of targets Mohammed states that he is the “military operational command for all foreign operations” under the direction of Osama Bin Laden. He was, among other things, (1) in charge of production of biological weapons and dirty bomb operations on American soil; (2) commander in Kandahar of the 9/11 hijackers responsible for their training and readiness for the execution of 9/11; (3) responsible for the 1993 World Trade Center operation; (4) responsible for 9/11 from A to Z; (5) responsible for the attacks on other skyscrapers after 9/11 including the Sears Tower and the Empire State Building; and (6) responsible for assassination attempts on former U.S. Presidents, including Presidents Carter and Clinton. He goes on to identify over 30 specific military attacks he planned against the United States, the United Kingdom, Israel, and NATO.
In his justification for waging war against the United States he offers a lengthy discussion (see page 21-25). I will quote some of the more salient sections of his statement (which I have cleaned up and edited for grammatical and linguistic errors):
“What I wrote here [of these planned attacks on America], it is not to make myself a hero when I say I was responsible for this or that. But you are military men. You know very well there is a language for any war. So when I admit these things, I’m not saying I did not do them. I did it because this is the language of war. If America wants to invade Iraq they will not send Saddam roses or kisses, they will send a bombardment. If I’m fighting for anybody I admit to them that I’m an enemy of America. For sure, I’m an American enemy… When we wage war against America we are jackals fighting in the night….
Just as you consider George Washington a hero, many Muslims consider the same thing of Osama Bin Laden. He is doing the same thing. He is just fighting. He needs his independence…. So when you say we are enemy combatants, that is right. We are…. You know very well that for any country waging war against their enemy, the language of that war is killing…. You know 40 million people were killed in World War One. Ten million were killed in World War Two. Over two million were killed in the Korean War. This is the language of war. Osama Bin Laden says he is waging war, he has declared it. You say I am a terrorist, but that is deceiving people. Terrorists, enemy combatants, all these definitions you can make of them whatever you want….
But with war, for sure, there will be victims. I’m not happy that three thousand were killed in America. I feel sorry for them even. I don’t like to kill children. Islam does not give me the green light to kill people. Killing, in Christianity, Judaism, and Islam, is prohibited. But there are exceptions to the rule. You say there are exceptions to the rule in killing people in Iraq. You said we have to do it. We say the same thing. The same language you use, I use.
When you invade Mexico, you call it manifest destiny. But the other side called you oppressors. If George Washington had been captured by Britain, he would be an enemy combatant. But Americans, they consider him a hero…. I don’t say I’m not the enemy. The language of any world war is killing. The language of war is victims. I don’t like to kill people. I feel sorry for the kids who were killed in 9/11. But this is the language of war…. It is just your bad luck that you are part of the exception to our laws…. You have to kill. When we target the United States, we choose military, economical, and political targets. War’s central victims mostly means economic targets.
War will never stop. War started with Adam when Cain killed Abel. It continues until now. War is never going to stop killing people. This is the way of the language. America started the Revolutionary War, and then the Mexican and Spanish Wars, and then World War One, World War Two. You read history. You know that war never stops. This is life.”
This statement is plausibly the first step in a claim to full POW status. The subsequent trial before a military commission may concentrate on how much of the disclosed activity should be covered by combatant immunity. Ultimately KSM will be convicted for air piracy and beheading a kidnapped reporter, but KSM is making an argument that most of his other activity legal combat.
Well, he’s certainly free to make the argument, but I doubt he’ll have much success. In which way does the 9/11 attack even approximate legal combat?
On March 10, 1945 330 B29 bombers appeared over Tokyo. The attack created a firestorm that destroyed 16 square miles of the city and left a million people homeless. One hundred thousand people died, mostly women, children, the old and infirm, and almost all of them burned to death alive. Yet the US regarded it as legal combat. Osama and KSM could keep their activity up for 30 years and would still go down in history as third rate terrorist wannabes compared to General Curtis LeMay. After Tokyo, Dresden, and Hiroshima, 9/11 is small potatoes. When the US wants to blow up two buildings, they send a B1B to do the job. KSM didn’t have bombers, so his people hijacked airliners to do the same job. The hijacking was a crime, but if they had been able to steal cargo planes on the ground and do the same attack, it probably would have been legal combat. The use of unlawful means to get the planes, however, does not make the rest of the attack unlawful. KSM will be more easily tried and executed if the goverment concentrates on the death of the passengers and crew of the planes than if… Read more »
Even assuming that the intentional murder of civilians constitutes legal combat, Article 2 and Article 4 of the POW Convention present a fairly high hurdle for an irregular (at best) like Mohammed.
Still, its about the only legal option available. He cannot plausibly argue he is an innocent victim here, so instead he argues that he is a military commander and entitled to be treated as such. Failure to recognize his status can be attributed to cultural, racial, or religious bias. He has a plausible argument, and it will receive more favorable treatment from a military court than civilians anticipate. It is a position that will be popular with his supporters and may turn what is otherwise an overwhelming case about terrorism into an entirely different argument. That is why the smart move would be to charge him only with piracy and kidnapping, where he cannot assert a claim of military status. His statement here is an “opening argument”, but you can foreclose the entire strategy with a counter move. This is, however, probably beyond the ability of the clowns that have screwed up the Hicks case.
KSM and Co. don’t stand a snowball’s chance in hell of possessing even a remotely plausible claim to POW status, most of all because he was not a combatant in a legally recognized international armed conflict, and POW status exists only in these conflicts. The law couldn’t possibly be any clearer. He is not guilty of a war crime, as there was legally no war, but is guilty of a crime against humanity under international law, and the crime of murder/terrorism under domestic law.
He is not trying to mount a legal defence, as far as I can tell. What he wants is to be legitimized, and turned from a common criminal into a noble warrior. That is precisely why he and OBL use the language of war, and that is precisely why the democratic countries of this world should NOT use that language.
I’ll have to agree with the second part of Marko’s post at least; to describe the efforts of illegal organisations as ‘war’ is a classical part of ‘terrorism’ rhetoric. The IRA, ETA etc…. have always described their activities as being part of a ‘war’ and in most cases governments have deliberately chosen to eschew that term in favour of ‘criminality’ or (the somewhat more maleable) ‘terrorism’. If it were not for the unwise counter-terrorist rhetorical choices of the United States there would be no question of whether there was a POW question here or not. Of course, in the US military law (as far as I know) the claim by a detainee of POW status gives rise to a ‘doubt’ requiring competent tribunal to decide, so I imagine that if (and when) KSM is convicted by a military commission and appeals he might try to widen the appeal process to force the federal courts to decide whether the CSRT satisfies A4, GCIII which the Sup. Ct. didn’t address in Hamdan. The POW/competent tribunal/’court clogging’ concerns are entirely a product of unwise rhetorical choices it seems. And KSM is a criminal, not a combatant. I’m sure the federal courts would agree,… Read more »
I realize Mr. Gilbert is probably trying to simply argue the other side of the argument, but both Tokyo and Dresden had significant military objectives within the city. One might argue that destroying most of the cities to destroy those objectives was illegal, but not plausibly that they lacked any military significance.
The terrorists of 9/11, on the other hand, possessed guided projectiles which hit only their selected targets (Barring flight 93.) Yet, of the three targets hit, only one had any military significance.
KSM would stand a much better (Although still probably small) chance of being recognized as a soldier if the targets selected were not intentionally civilian. He didn’t just kill civilians by the sheer force and scope of the attacks, their deaths were the objective of his attacks.
Some captured US air crews were tried by Japanese for murder and arson. They claimed that dropping bombs on women and children from high flying planes was not the act of a “true warrior”. After the war, we charged the judges in these cases with being war criminals.
As a result, a court of career military officers will not be easily convinced to strip the top ranking military commander of a wartime enemy army of his combatant status. I have seen casual comments from administration officials, but no real legal argument that holds water.
Remember, nobody doubts that KSM is a criminal. The question is what type of criminal he is. If it is possible to handle domestic political reaction, I suggest the best strategy is to convict him and hang him on the charges he cannot contest. You may think you are right, but in terms of how this is going to play to his intended audience, this is a dispute we are better off skipping. Hang him as a pirate. Don’t get suckered into the one argument he wants to have broadcast over Al Jazerra.