07 Jul War or Crime? Some Thoughts on the 7/7 Attacks in London
I didn’t want to seem wholly unaffected by the horrible terror attacks in London, but I didn’t feel like I had anything useful to add from an international legal point of view. But where a cautious lawprof blogger fears to tread, lawyer Andrew McCarthy does not, in this blistering National Review Online piece.
McCarthy’s basic point is that the UK, unlike the U.S., has generally embraced the “law enforcement” approach to the war on terrorism. As McCarthy notes, the UK has:
- adhered to Protocol 1 to the Geneva Conventions, which make it more difficult to classify someone as a unlawful combatant.
- tossed out tough new anti-terrorism laws as a violation of EU human rights standards
- released British nationals detained in Guantanamo Bay not because they did not believe those detainees were dangerous, but because they had no legal basis to prosecute them.
The larger sort of legalistic point is that the UK and many countries continue to see terrorism as a criminal law enforcement problem than a military problem. According to McCarthy, this hampers the UK’s ability to fight terrorism.
I’m sure McCarthy is exaggerating the extent to which these legal distinctions could have made a difference in the 7/7 attacks. But he does put his finger on the key political-legal battle over the war on terrorism.
Is it legitimate for countries fighting terrorism to adopt aggressive military tactics generally reserved for wartime: e.g. kidnappings and renditions, preemptive bombings/assassinations, preventive detentions, harsh interrogations? Or should countries stick to the basic law enforcement model that is more likely to protect citizens’ civil and political liberties? Or is there some third way that could balance these concerns?
My own take (for what it is worth) is that we need some sort of third way, but if I had to pick between the “war” approach vs. the “law enforcement” approach, I would have to go with the “war” approach as the lesser of two evils. It seems to me, though, that it is the responsibility of lawyers and policy makers to come up with some third way rather than simply take potshots at each other from their ideological bunkers.