Legal policy for a twilight war.

So by applying legal interpretation to this set of issues, instead of legal policymaking, we do so in an area where the legal sources are few and fragmentary, uncertain, and contested. The arguments immediately become polarized, because they invoke clashing philosophies of international and constitutional law.

To the public at large, the arguments quickly become technical. And they are therefore coarsened into: Are you for civil liberties? Are you for fighting terrorism? And the polarization of "liberty versus security" is one of the most vicious byproducts of the debate. This can be politically useful, but it is bad policy.

The direct results were indeed simple and bipolar. For the administration, in such a murky and contested area of law, it was easy to make plausible arguments that a great many things could be done. Indeed the administration feared it would set limiting legal precedents to take any other view as a matter of law.

For the enemies of the administration, it was obvious that they should argue established legal protections were being trampled. And if one takes the view that the original pre-9/11 paradigm--criminal justice plus diplomacy--remains in force, then everything needs to be done in accordance with established precedents, Article III courts, and the Bill of Rights.

III. A LEGAL POLICY PERSPECTIVE: SHOULD WE TREAT THIS AS AN ARMED CONFLICT?

The first stage after 9/11 was the transition of the core paradigm from criminal justice to the paradigm of armed conflict. Viewed from a policy perspective that transition needs to be defended as something we should do, and continue doing, not just as something we can do and are legally able to continue doing. From this same policy perspective, it would be wise to achieve the essential assent of the Congress and key allies that it was--and is now--necessary to deal with this problem as an armed conflict, and then work with relevant partners to develop effective, common rules of engagement.

Why should we treat this struggle as an armed conflict?

* The criminal justice framework has been developed for use against a finite group with a relatively small number of individuals who are within a given jurisdiction. With al Qaeda, its affiliates, and its allies, the United States confronted large, transnational substate groups that had a partnership with at least one former regime (Taliban Afghanistan). These groups still prefer to operate in areas where nominal state sovereignty is ineffective or nonexistent.

* There are special problems of scale. The problem is well beyond the scale we would traditionally associate with a criminal conspiracy, even with the kind of terrorist groups that we had become used to dealing with in the 1980s, which tended to be associated more with state sponsors of terrorism.

* The threat is also qualitatively different. Societies tolerate certain risks and limitations when they deal with more ordinary crime. But now the United States was confronting groups with the demonstrated capacity to carry out acts that can kill thousands of Americans on a beautiful fall morning and inflict at least tens of billions of dollars worth of prompt, direct damage to the American economy just within the first hour. (12) That level of risk challenges the usual assumptions in fashioning legal policy.

* It is harder to apprehend suspects. The problem with al Qaeda in Afghanistan was obvious, but other, similar challenges exist today. In some cases local governments cannot or will not arrest enemies planning to attack the United States or its friends. In some cases the local governments may wish to help, but such arrests or judicial extraditions are beyond their capacity. The governments involved will often concede their incapacity--in private.

* Then there are problems in gathering evidence. Some of the pre-9/11 indictments were triumphs of investigation under extremely adverse circumstances. (13) But in many circumstances, it will be hard to overcome those limits or be able to find the resources for the fantastically labor intensive effort that's required to construct the criminal case from so many scattered fragments, when dealing with large numbers of individuals involved in many different kinds of violent acts.

* And those evidentiary investigations were all after the fact. Often they were triumphs of forensic reconstruction. But policymakers aren't paid to wait for the bodies and debris.

There were and are compelling reasons to sustain the armed conflict approach, complemented by respect for local laws and responsible sovereignty.

It is therefore striking and regrettable that the United States has not persuaded most states, including many of our allies, to agree that a policy of armed conflict is appropriate. This is partly their fault, partly ours.

* Many governments, including practically all of Western Europe, have never accepted any change from the pre-9/11 criminal justice/diplomacy approach. Many of their leading politicians and lawyers are fundamentally pacifist and believe that armed conflict is rarely, if ever, a solution to a problem--and certainly not if it is proposed by Americans.

* Some of these same governments feel they know the problem well, yet they have not actually been attacked or threatened on the scale suffered by the United States. And, while they still assess the risk as being more ordinary, they also lack the capabilities to join very effectively in more forceful or distasteful measures. So they turn such necessities into virtue.

And the problem is our fault too. It is tempting for some local governments to let the Americans do the distasteful things that protect their people too. Then these free riders can criticize and distance themselves as they wish. But it is unwise for America to play along with that game. When Americans design processes that are exclusively American--"our show"--because we do not want foreign intrusion, we contradict our argument that this is a global struggle waged in common with others, and we encourage free riders.

To build an appropriate coalition, at home and abroad, a leading government needs to do four things:

(1) Accept the need for a real partnership where the other side gets to have some say and offer a process for policy cooperation--not just tactical help on the case du jour.

(2) Get out and make the policy case--not just a legal argument--for why a fundamentally different approach is needed.

(3) Develop an interpretation of the new approach that, with work, can plausibly be sustained in the partner's politics. In other words, if they are receptive to the basic policy argument, develop a design for implementing it that they can defend.

(4) If they want to help, identify tasks that they can do, with or without help, that commit them to the common enterprise.

Despite many, many bilateral relationships and contacts--usually to solve a tactical problem of the moment--the U.S. government did not begin such a systematic effort to build a coalition for this armed conflict against Islamist terrorism until 2005. Legal policy development is part of such an effort because, in running a multinational enterprise, policymakers need to ask their lawyers to develop a legal foundation that can work in foreign markets.

The obvious counterargument, of course, is that the prospective partners will offer aid so limpid and legal policies so unrealistic that it is worse than useless to lash up with them. To this the answers are also apparent:

* Set the right terms for given partners.

* It will help that you made your policy case and sought a coalition, even if you fail. And the effort will be remembered if the prospective partner changes their views--reevaluating the risk of attack or if other circumstances change.

* Sliding into habits of growing noncooperation and alienation is not just a problem of world opinion. It will eventually interfere--and interfere very concretely--with the conduct of worldwide operations.

So far I have focused on the nature of the conflict itself. And, as President Bush says, it is a war. This is not a metaphorical point. Though the expression "armed conflict" is technically more precise, the United States is engaged in a war against al Qaeda, its affiliates, and allies in at least four ways.

* A war in Afghanistan. This partly involves an enemy that is a transnational enemy, not simply a participant in an internal Afghan conflict. (14)

* A war in Iraq. The war going on in Iraq is mainly internal. But it also has a transnational quality because transnational combatants and transnational organizations are combatants in that war. That fight, layered on the various internal struggles, is another reason why U.S. operations should be governed under international law and policies for armed conflict.

* Occasional operations to target terrorists in effectively ungoverned areas of the world where there is complete state failure or effective state failure. If terrorist organizations are actively planning violent attacks against Americans in places that are effectively ungoverned, the United States then has to have some kind of way of dealing with those organizations, which are at war with the United States.

* Advising and partnering with local governments in their military and paramilitary operations against Islamist terrorist organizations.

"War" is not a misnomer. But it is insufficient. The struggle includes armed conflict but it is more than an armed conflict. It is not just a war.