Part II

David B. Rivkin, Jr. and Lee A. Casey

(Continued)

The war on terrorism is not simply the disruption of terrorist plots and the detention of suspects. To be successful when carrying a long-term military engagement, democracies must be imbued with a shared sense of purpose, an agreed-upon strategy and a conviction that their cause is just. As the war on terrorism proceeds apace, long-standing and simmering disputes between the United States and its European allies over questions of extradition and the associated cultural contretemps threaten to derail the campaign against Al-Qaeda and weaken the Atlantic Alliance.

The wartime transfer of "unlawful combatants" creates fundamentally different legal and policy considerations than normal, peacetime extradition cases. Significantly, all of the international legal instruments dealing with death penalty, including Europe's 1983 Protocol, expressly allow for the use of capital punishment in time of war. And, whatever their private misgivings about the proper nomenclature for the September 11 attack, by invoking Article V of the NATO Treaty, at least those European countries that are NATO members chose to treat September 11 as an act of war. Ironically, given this legal context, President Bush's military commission order, which applies during the time of an armed conflict (only to unlawful combatants) and draws upon the laws of war, should have made it easier for the Europeans to deal with American extradition requests. To put it in a nutshell, the American use of military commissions vividly demonstrates that the extradition requests being made are not a criminal justice matter, but rather are part and parcel of fighting a war against international terrorism.

These considerations aside, the state of war dramatically reshapes the death penalty's policy merits. European objections to capital punishment during peacetime--including its lack of "respect for life", failure to account for the possibility of rehabilitation, alleged lack of deterrent effect, and possibility of killing the innocent--have substantially less application during wartime. The innocent victims of terrorism, too, have a "right to life" and the state has an obligation to see that justice is done. At the same time, the possibility of rehabilitating Al-Qaeda members is close to zero. Bin Laden and his co-belligerents are unlikely to accept defeat as did Nazi Germany or Imperial Japan. In Afghanistan, they have frequently indicated a willingness to fight until they physically can no longer fight and, for many of them, this means death. They have declared a war of annihilation against the West, and there is every reason to take them at their word. Indeed, capital punishment may be the only effective response to the threats currently facing the United States and its allies.

The imprisonment of Al-Qaeda members, particularly its leadership, would merely create the incentive for supporters to commit further acts of terror in order to obtain their release. This particular drama has, in fact, already played on the Middle Eastern stage. Israel, for example, has periodically been forced to release hundreds of imprisoned terrorists to free their own intelligence operatives or soldiers. Similar tactics will certainly be used against the United States.

There is also a compelling set of war-related imperatives for the Western countries to suppress unlawful combatancy. As General William Tecumseh Sherman bluntly stated "[y]ou cannot qualify war in harsher terms than I will. War is cruelty, and you cannot refine it." Yet, from the very beginning of organized warfare, strenuous efforts have been made to develop and sustain a body of rules, governing who may use force, when and how. All civilized states, regardless of their position on capital punishment, have an inherent interest in limiting the resort of war to other states, or to those claiming to represent a state and thus acknowledge the limits imposed by the laws of war on their belligerent activities. Private men have no right to make war, and this is one of the oldest and best-established rules of international law. Those who do, and who fail to accept the minimum requirements of lawful belligerency -- a recognized command structure, some identifying "uniform," carrying arms openly and accepting the applicability of the rules of war -- can, and should, be treated harshly. As the 18th Century international law scholar Emmerich de Vattel explained in The Law of Nations: "A nation attacked by such sort of enemies [unlawful combatants] is not under any obligation to observe towards them the rules of wars. . . It may treat them as robbers."

This approach has particular merit in the current circumstances, when for the first time in human history, the very survival of organized states is threatened by terrorist organizations. These groups, aided and abetted by a few rogue regimes, are relentlessly seeking access to weapons of mass destruction. To deal with this threat successfully requires a concerted effort by all democracies, featuring cooperation of the military, law enforcement and intelligence.

In this context, Europe's extradition policies pose both symbolic and practical problems. Since "unlawful combatants" have reemerged as a scourge of humanity in the 21st century much as they were in the 14 ^th-15^th centuries, when the original proscription against them was introduced by the fathers of modern international law, suppressing them has become one of the most important policy priorities for the entire international community. Delegitimizing these individuals is a vital element of the overall effort. This explains the harshness of the American condemnations of the Palestinian suicide bombers, another policy matter on which we and the Europeans disagree. No cause can justify deliberate attacks on civilians. Thus, treating unlawful combatants as ordinary criminals and obsessing about the nature of the process that they would be accorded in the United States or the punishments that might be meted out to them is exactly the wrong way to proceed.

Indeed, one can argue that, given the nature of this conflict, law enforcement operations have become just another version of low-intensity warfare. The current idiosyncratic European attitudes do more than just impede the U.S. ability to successfully prosecute this conflict; they pose a major threat to European security as well. To the extent that European attitudes towards extradition remain unchanged while the U.S. continues to uproot various terrorist support structures around the world, Europe might well become a magnet for Al-Qaeda, the Taliban and its terrorist allies. This is, in fact, a perennial feature of warfare; when a success by one side on a particular front causes the enemy to shift his resources to the less well defended areas. Unrealistic European law-enforcement attitudes may well make European capitals more attractive to terrorists than the warrens of Mogadishu or the slums of Sudan. In fact, recent investigations by German and Dutch authorities have already uncovered dozens of Al-Qaeda cells and demonstrated that many of the September 11 operatives spent considerable amounts of time in Europe.

In past extradition-related disputes with the United States, Europe's leaders have generally gotten their way. American prosecutors have agreed, in individual cases, not to seek the death penalty. But such agreements are highly unlikely (almost unthinkable) with respect to Al-Qaeda's leadership. (If Osama bin Laden surrendered to one of the European police authorities tomorrow, the ensuing extradition fight would be bitter and cause enormous damage to the Alliance.) Although few ordinary Americans care much about the issues that regularly bedevil trans-Atlantic relations, such as banana imports, anti-trust issues, or global climate change, virtually all care deeply and passionately about the war on terrorism. By more than a two-thirds majority, they support the use of military commissions and capital punishment. The Bush Administration is serious about winning the war on terrorism and making Lincoln's words come true again. The value to the United States of allies who coddle, even based on sincerely held beliefs, unlawful combatants who seek to destroy this country will be eventually questioned.

This is especially true given the relative equities of the two sides and the memory of past American actions. During the Cold War, under the extended deterrence doctrine, the United States, with full awareness of the risks involved, ran the risk of nuclear Armageddon to assist NATO members who were threatened by the Soviet aggression. The threat of a Soviet attack was primarily directed at Western Europe; there were no conceivable scenarios in which the Soviet Union would have attacked only the United States. Yet, in the popular parlance of the time, we were willing to risk New York and Washington to protect Paris and Bonn. In the post-September 11 world, it is the United States that is the main target. Unfortunately, with the singular exception of Great Britain, Russia and the former Soviet Central Asian republics have done more for the U.S. war effort than our main NATO allies.

Since the end of the Cold War, many questions have been asked about the long-term viability of the U.S.-European partnership. By leading the NATO intervention in Bosnia and Kosovo – a venture where no vital U.S. interests were implicated, but where the Europeans strongly clamored for joint U.S.-European involvement – the U.S. has demonstrated that maintaining NATO solidarity remained a key American policy priority. Europe has yet to respond in kind. The best argument of the die-hard Atlanticists has been to claim that the current discord is attributable to the lack of any serious threat facing this partnership in general, and NATO in particular. By implication, if and when such a threat arose, Cold War levels of solidarity would reemerge. The events of September 11 certainly qualify as such a threat, but whether that solidarity will reappear remains to be seen. At this time, however, the only major contribution most of the European governments are likely to be asked for will be law enforcement cooperation, including the arrest and extradition of suspects to the United States. If Europe cannot do this much, even when there are no insurmountable legal obstacles, then the Atlantic Alliance has been already beset with irreconcilable differences. Even if it endures, it would become more of an irrelevant debating club than the West’s premier security instrument. Our European allies should grasp what is at stake here; the U.S., for its part, should appreciate the fact that the fundamental issues of principle are implicated, rather than just a series of specific narrow policy disputes, and therefore speak clearly and forthrightly to the European elites and publics. Candor and sustained engagement, rather than diplomatic politesse, offers the only hope of closing this rift.

Messrs. Rivkin and Casey are partners in the Washington, D.C. office of Baker & Hostetler LLP. They have served previously in a variety of legal and policy positions in the Reagan and Bush ’41 Administrations, including the White House Counsel's Office and the Department of Justice.