July 07, 2005,
Unfortunately, points like these are best made when terror strikes and the collective public mind is focused. So it is worth pausing today to consider that British law and government have many features that critics both here and in the "international community" contend the United States should adopt. It's times like these when such claims appear most starkly dubious.
England has a domestic intelligence service, MI-5, which some keep insisting makes for superior homeland security compared with our system because it can single-mindedly focus on intelligence collection and analysis. In contrast, our FBI does both counterintelligence and traditional law enforcement. But for all the talk about the supposed efficiencies of specialization and study, good intelligence, at bottom, is a matter of squeezing bad people for information. That is a fact like it or not. The FBI, of course, is far from perfect, but our system when it is working properly more easily allows the threat or reality of prosecution for crimes to induce suspects to cooperate and provide vital intelligence.
The Brits, moreover, adhere to the 1977 "Protocol I" to the Geneva Conventions which provides additional protections for terrorists at the expense of civilian populations. As David Rivkin and Lee Casey wrote in an important 2004 article ("Leashing the Dogs of War") in The National Interest, Protocol I:
eliminates the requirement of government sanction for lawful combatant status, and the rules requiring uniforms and the open carriage of arms are relaxed. In this regard, under Protocol I, irregular forces need to produce their arms and identifying badges only immediately before launching an attack, and can only be targeted themselves while preparing for an attack or attacking. At all other times, Protocol I requires irregulars to be treated as civilians, who can be arrested, but not targeted. Obviously, these changes bestow a dramatic advantage on the hit-and-run tactics favored by guerrillas, and seriously handicap regular armed forces.
The U.S. rejected Protocol I during the Reagan administration, precisely because it would abet terrorists. Nevertheless, as Rivkin and Casey elaborated, the fact that the U.S. regards al Qaeda terrorists as unlawful enemy combatants, rather than criminal defendants with constitutional rights or POWs with Geneva protections,
has opened a rift with America's European allies, many of which act as if Protocol I applies to the United States, even without its consent. Some in Europe have actually questioned their governments' right to transfer individual Al-Qaeda and Taliban members to the United States, and British units operating in Afghanistan in 2001-02 evidently feared capturing Osama bin Laden, since they might not have been able to turn him over to American forces. Indeed, this problem persists in Iraq, and is magnified by another quandary the British, because of the combination of domestic legislation, Protocol I strictures and EU obligations, are apparently unable to utilize any form of military tribunals to prosecute and punish either unlawful Iraqi combatants or those lawful Iraqi combatants that have committed war crimes. This situation has greatly complicated the Coalition's ability to deter attacks on its forces in Iraq.
Not only do the Brits display a curious legal and military deference to terrorists' choice of barbaric tactics. They are also in the vanguard pushing toward legitimizing those tactics politically even now toying with the idea of recognizing and negotiating with Ham as and Hezbollah. As our government nervously watches developments in the Middle East where the Palestinian Authority is poised to invite Hamas into its governing coalition atrocities like the ones in London today should remind us that the moral clarity of the Bush Doctrine (you are either with us, or with the terrorists) is dependent on a steadfast rejection of all who practice or promote the slaughter of innocent civilians to achieve political ends.
Further, the British revile our Guantanamo Bay detentions of captured enemy combatants, to the point of insisting, with success, that British prisoners (some of whom were among the worst terrorists held in Gitmo) be returned to England, where most were promptly released into the population.
And, when parliament enacted a tough antiterrorism law, the House of Lords threw out the provisions permitting national-security detentions. Why? The Law Lords one-sidedly ruled that detaining terrorists without trial violated European human-rights standards.
Of course, detaining enemy operatives until hostilities are over is not simply acceptable under the time-honored laws of war; it is common sense not to release militants so they can kill more of your soldiers and civilians. Too often, in Britain and throughout Europe, the humans whose rights are the subject of obsessive concern are the ones doing the killing rather than the ones doing the dying.
Amid the carnage today, Home Secretary Charles Clarke is talking about the people who carried out "these terrible criminal acts." That's an understandable reaction and we shouldn't quibble too much over a choice of words by people who have been stellar allies, who are in the middle of a rescue effort, and who are unsure the bombing has actually stopped. But it is worth repeating that what happened today is not mere crime.
This is war. It can't sensibly be separated from Bali or Mombassa or Istanbul or Madrid or Baghdad or Virginia or lower Manhattan or any of the other places where the enemy has attacked.
The only security and an imperfect security it is is to acknowledge that this is a war and fight it like a one. Prime Minister Blair has been a staunch ally after 9/11, but many in his country, and throughout Europe, have not grasped what we are up against.
Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.