Assessing the Legality of Counterterrorism Measures Without Characterizing Them as Law Enforcement or Military Action

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In this article, I develop three theses. First, I claim that disagreements about the legality of counterterrorism measures commonly stem from disagreements about whether to characterize the measures as law enforcement efforts or as military actions. Observers who see the measures as methods of controlling crime assess their lawfulness differently from those who see them as a form of warfare against terrorists because criminal law enforcement rules differ substantially from the laws of war. With many specific examples, I show that disputes about legality based on disagreements over characterization have arisen in at least eight different subject areas, ranging from targeted killing to the responsibility of the government to provide compensation to persons inadvertently injured by the counterterrorism actions Second, I claim that determining the legality of governmental responses to terrorism by attempting to characterize them as either law enforcement actions or military actions is not a good system. Counterterrorism efforts generally defy simple characterization into one category or another because terrorists resemble enemy combatants in some ways and criminal suspects in others. In addition, the different subject areas in which the issue of characterization arises vary from each other in so many respects that a characterization that makes sense in one area does not necessarily make sense in another. Third, I claim that a better system would judge counterterrorism measures as counterterrorism measures, without trying to characterize them as either law enforcement or military action. In other words, the United States and other nations ought to develop new standards to regulate governmental responses to terrorism, rather than debating whether the laws of war or the rules of law enforcement should apply. Already imperfect examples of this alternative approach are emerging. They include both the Israeli Supreme Court's 2006 decision on targeted killing and the Military Commission Act of 2006.