Terror Has No Rights: Time To End Legal Limbo For Violent Extremists

Keith Naughton Public Affairs Consultant
Font Size:

Two things are certain in this world: 1) most people have to learn the hard way and 2) some people never learn. The tragedy comes when innocent people lose their lives because the fools who never learn are in charge.

Just a scant few weeks ago America was convulsed in debate over torture. In the background, President Obama continued his policy of closing Guantanamo Bay by stealth, slowly leaking away detainees, irrespective of how dangerous they are.

The terrorist attack in Paris (one perpetrator had been convicted of recruiting terrorists and was stupidly let free) should shake Obama from his inaction. Unfortunately, I think this president is one of those people who never learn.

Before we can deal with terrorism, it is necessary to establish a clear and coherent policy. Lost in the debate over enhanced interrogation or torture and Guantanamo Bay is the fact that terrorists are in legal limbo. They are not soldiers, they are not mafia-style gangsters, and they are not “freedom fighters.” Until the U.S. and its allies settle on their legal status and rights, it is not only impossible to develop a coherent policy, it is impossible to gain international cooperation – which is pretty important when fighting trans-national terrorists.

Our Declaration of Independence declares that all men are created equal and possess a set of inalienable rights.  If the Founding Fathers were to update that credo to the present day, I think they would carve out an exception for al-Qaeda (and, if not, they should). That’s not just my opinion, the Geneva Conventions on warfare do not include protections for terrorists – be they guerrillas, irregulars or lunatics who fly planes into buildings. Terrorists are in a legal limbo and it’s time to end that limbo. Terrorists (and their abettors) should be considered utterly without rights of any kind.

Terrorism is a unique threat. Organized and dedicated to indiscriminate mass slaughter, terrorists are like an army of sociopaths. Beyond physical destruction, the fear caused by terrorism degrades the rights of all people in society every day – that is part of the terrorist strategy. There is not even the remotest parallel to any domestic criminal act. To accord terrorists the same protections of the U.S. Constitution as domestic criminals is incomprehensibly foolish.

Nor do terrorists compare with any nation’s armed forces. Militaries are subject to chains of command and rules of engagement that have at least some rational basis. The vast majority of militaries in the world are subject to some civilian control. Additionally, nation-states are subject to pressures of sanction, blockade and precise military operations that can force real political change.

Terrorist organizations are not subject to such pressure and have much more fluid command and control. Terrorists only stop when dead or facing annihilation. Terrorists don’t believe in negotiation, except to release hostages in exchange for money to finance more violence. These facts are not just true for Al-Qaida or ISIS, consider the history of FARC in Colombia. For decades FARC massacred, car bombed, kidnapped and looted Colombia. Only a determined campaign by former President Uribe to utterly eradicate FARC convinced the organization to finally agree to talks about disarming (which are predictably stalled).

These material differences logically demand that terrorists be classified very differently from either domestic criminals or military forces. Terrorists have more in common with fatal viruses than with human beings. Simply put, when you decide to join or aid a terrorist organization, you should lose your human rights.

Unfortunately, President Obama has decided, as near as I can determine that terrorists identified by his administration should be summarily executed by remote control while terrorists caught alive by President Bush should be released, regardless of the potential threat they pose. The reasoning, of course, is the Bush was bad and wrong about everything while Obama is really smart and always knows what is best.

Obama’s Guantanamo Bay policy is typical Obama subterfuge:  slowly leak away all the detainees regardless of their potential threat until the place is empty. Don’t have a public debate; just go behind everyone’s back.

This vacuum suits a president who has no interest in tackling difficult issues of international law, security and response. When he decides to respond, he holds to a policy of being “proportional.” Preposterous is more like it. The way to stop terrorists and rogue states is via disproportionate response.

He is utterly unwilling to annoy a political base that assumes as a matter of course the Western world is guilty of every ill in the world and terrorism is just a symptom of a venal system. You know, the venal system that values democracy, human rights, commerce and religious tolerance.

Every nation has a right to self-defense. Fighting terrorist organizations like al Qaida and ISIS is unlike any past experience. They are more deadly than any past terror organizations and their ability to sow fear and destruction is unparalleled. According terrorists and their enablers any human rights is terrible policy. It’s time to make it explicitly clear, if you want to be treated like a human being, don’t become a terrorist.