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The legal rules governing law enforcement and war are fundamentally different. Authorities can use deadly force against criminal suspects only in the most narrow circumstances and almost always as a last resort. Unless perpetrators are caught in the act, they can be arrested only on properly issued warrants, and custody of perpetrators in foreign jurisdictions must be secured through the often time-consuming processes of international judicial cooperation.
Once apprehended, criminal suspects enjoy a plethora of rights designed to even the playing field between them and their governmental accusers. Moreover, the entire criminal justice system is based on the assumption that the potential for prosecution and punishment will, for the most part, deter illegal conduct. This system is manifestly unsuited to confronting a worldwide network of zealots who are determined to make war on the United States for their own ideological and geopolitical purposes.
Certainly, terrorism prosecutions in civilian courts can, and have, made a difference in the fight against international terror. However, redefining that fight as solely a law-enforcement problem in which such proceedings are the central mechanism to “defeat” al-Qaida is a recipe for disaster. President George W. Bush and President Barack Obama have rightly chosen not to take that path. Military force, and the body of law associated with it, is the only means by which the United States can degrade al-Qaida’s capabilities and ultimately grind it out of existence.
Force also is the only means by which Washington can effectively protect the American people from future attacks by al-Qaida, its allies and supporters. Demanding that protection does not transform our country into the home of the chicken-hearted. As law and morality make clear: Civilians are not legitimate targets of attack.
The American people have a right to expect that their government will secure them from attack by armed enemies so that they can continue to enjoy the liberties that define the nation.
David B. Rivkin Jr. and Lee A. Casey are partners in the Washington office of Baker Hostetler LLP, and served in the Justice Department during the Reagan and George H.W. Bush administrations. Rivkin is also co-chairman of the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.