In her post, Dr J was essentially supporting the position of, for example, the Reagan Administration (pdf). In Paul Bremer's words:
Another important measure we have developed in our overall strategy is applying the rule of law to terrorists. Terrorists are criminals. They commit criminal actions like murder, kidnapping, and arson, and countries have laws to punish criminals. So a major element of our strategy has been to delegitimize terrorists, to get society to see them for what they are -- criminals -- and to use democracy’s most potent tool, the rule of law against them.In other words, to not become what we are fighting.
That terrorists use criminal means is obvious. That they do not have conventional criminal ends (or not only conventional criminal ends) is also obvious. They are certainly not entitled to be treated as combatants who have signed the Geneva Conventions, because clearly they have not. They are waging a form of war, but do not acknowledge (or bind themselves by) any of the laws of war. They place themselves outside those limits and so, in some important sense, place themselves outside those protections.
Hence I am very reluctant to support anything that gives them a status they absolutely have not earned nor are entitled to. Certainly, giving them the status of mere criminals strips them of their self-flattering pretensions. And it minimises the chances of us becoming that which we fight.
There is the issue of effectiveness: does treating them as criminals work well enough? This seems especially urgent given the destructive capacities of modern technology.
But there is also the point about why societies have warrior codes: to differentiate the warrior from the murderer. To not corrupt our own processes and our own protectors is why the common law has opposed torture since medieval times, for example.
Treating the captured terrorists as criminals seems not very problematic if they committed crimes within one's own jurisdiction. But what about those whose evil falls elsewhere? Does it become a simple matter of extradition? But what if there are real problems with that?
It is a sign of how tangled this all is that how to respond to terrorism the mixed responses it does.
Michael J Totten’s recent article in Commentary takes the killing of Hamas’ military head as the sort of thing that should be done. This seems to be the general burden of those commenting at his blog. The argument seems to boil down to Hamas is so obnoxious it deserves anything it gets and it is really, really preferable no one else gets hurt on the way through.
We have warrior codes to distinguish soldiers from murderers. But a standard part of such codes is to restrict killing to those engaged in the heat of battle. (Part of which is the use of uniforms: one of the many ways terrorism evades civilising restrictions.)
The killing in Dubai is murder in the legal code of Dubai and was clearly not in the heat of battle. But if you capture someone like Mahmud al-Mabhuh then you are actually increasing the danger to your own citizens, as his release becomes a reason to snatch people able to be used as levers. (See previous point about terrorism evading civilising restrictions.)
But this is part of the calculus of terrorism: to push their opponents into actions that recoil on them. There are genuine conundrums here.
Though, likely, the first time a city becomes the victim of nuclear terrorism, terrorists will be declared hostis humani generis and subject to summary execution, like pirates on the high seas in more robust days.
This seems to be where Totten et al seem to be effectively at. The conundrum of terrorism is dealing morally with people who are at war with the restrictions of morality magnified by the destructive potential of modern technology.