Debating Whether Murder is Murder

The Bush administration’s plan to try terrorist suspects before military tribunals has inspired thoughtful dissent and knee-jerk condemnation. Neither side, however, has expounded on the best reason to avoid this perfectly acceptable protocol of war: By convening special means to try special crimes, we may inadvertently ennoble those who wish us death and destruction.

The administration’s impulse on this matter is understandable. Prosecuting a war against terrorism isn’t quite akin to Rudy Giuliani and Bill Bratton pursuing a war on crime. This is real war of sorts, with a hostile, and deadly, force operating on our soil. That changes the rules of engagement, as spies, enemy agents and vanquished war criminals throughout history have discovered. Colleague Richard Brookhiser reminded us last week that Nuremburg wasn’t night court; neither was the 1865 trial of Robert C. Kennedy, a Confederate agent who tried to burn New York to the ground during the Civil War. Historian Edward T. O’Donnell notes that Kennedy’s crime, which nearly succeeded, was condemned by prosecutors as “one of the greatest atrocities of the age.” After his capture, Kennedy wasn’t brought before some Tammany hack serving time on the State Supreme Court bench. He was tried and convicted before a military tribunal, which ordered him hanged. He was, in short order.

At such a moment, under such a threat, the swiftness and certainty of a military tribunal are hard to resist. But what of the bizarre moral victory we would hand to our enemies if we, in essence, recognized them as combatants rather than as “mere” criminals?

Terrorists, as no less an authority than Carlos the Jackal has observed, seek to militarize civil and political issues. When terrorists or paramilitaries are accorded special treatment, as Great Britain learned in its war with the Irish Republican Army, they adopt the moral high ground, arguing that such treatment affirms their self-proclaimed status as legitimate soldiers and not murderers or common criminals. Rhetorically, we have condemned those who carried out the atrocities of Sept. 11 and those who may be planning more of the same as heinous mass murderers, no different than the thugs who populate our maximum-security prisons. But if we consign the terrorists to military trials and military justice, we may be giving them undeserved dignity, a status in which they will take no small measure of perverted delight.

In deciding how to apply justice in wartime, we ought to draw on the experience of our allies in London. In the early years of their protracted conflict in Northern Ireland, British officials granted imprisoned I.R.A. guerrillas (and their Loyalist counterparts) what was called “special category” status. After being convicted of terrorist crimes in special juryless courts, I.R.A. members were allowed to wear their own clothes in prison rather than convict uniforms, were not required to follow the prison-work regimen, and were allowed to freely associate with other special-category prisoners. The I.R.A. claimed these concessions made them political prisoners–prisoners of war, in fact–and were a de facto recognition of their political grievances.

So deeply held was this sense of legitimacy that when Britain changed course in 1976 and ended special-category status, I.R.A. prisoners went on a long, horrendous protest, culminating in a hunger strike in 1981 that led to the deaths of 10 prisoners. Margaret Thatcher defended the government’s position with the argument that murder is murder; there is no special category known as political murder.

(The two sides, it should be noted, found themselves making the opposite arguments some years later, when British soldiers ambushed several I.R.A. operatives scouting bombing targets in Gibraltar. The I.R.A. screamed about due process; Mrs. Thatcher adopted the I.R.A. view of all being fair in war.)

The Bush administration will have to decide which course it will take. If the President and his aides continue to argue that Osama bin Laden’s agents are common murderers, they cannot then designate an alternative means of trying and incarcerating them, for that is a slippery slope. If a terrorist is convicted by a military tribunal of something less than a capital crime–attempted murder, or possession of a weapon–will the subsequent sentence be served in a special military facility? If so, we can expect convicted Al Qaeda operatives (with, no doubt, the support international human-rights groups) to demand recognition as prisoners of war. And that, as Britain learned, leads to the implicit recognition of terrorists as legitimate combatants, and their crimes as politically motivated and therefore somehow different from garden-variety murder and mayhem.

As they often are–which is why, in accordance with the Irish peace process, Britain has set free scores of I.R.A. prisoners convicted of murder. Washington, however, is touting the Thatcher view that murder is murder. That’s a perfectly reasonable position to take, but it may rule out taking the extraordinary measures Mr. Bush proposes.