Terror Threat Blurs the Rules of War

On Nov. 4, an Italian court convicted 23 CIA operatives in the kidnapping of an Egyptian terror suspect, Hassan Mustafa Osama Nasr. The U.S. refused to extradite the agents to Italy, and so they remain at liberty, but they are at risk of arrest if they visit any European country.

If anything, the Italian government is even more annoyed and embarrassed by the case than the U.S. Many in Italy suspect the judges of political motives and it certainly would not be the first time that a European judge has used judicial power for political point-scoring. On the other hand: Abduction is a crime and when confronted with convincing evidence, a judge can hardly dismiss the case. He has to do his job, after all.

Formerly, there did exist rules of law that prevented courts from intruding into national security matters. The power of those rules is steadily waning, and in Europe may have all but vanished.

So why has it become so routine for Western courts to be used in a way that seems detrimental to their national interests?

Classical liberal doctrine drew a sharp distinction between the powers of the state in time of war and times of peace. War was conceived as a temporary cessation of peace, during which different rules – not always written – applied, but only temporarily. When peace came back, everything was forgotten until the next war.

But the distinction between war and peace has become more and more blurred during the second half of the 20th century. Nuclear deterrence made major classical wars between superpowers much less likely, while proxy wars, guerrillas, as well as local and international terrorism became the main tools with which states and non-state actors would circumvent classical war, and that hasn’t stopped with the end of the Cold War. Western governments too have become more reluctant to declare war. The U.S. relies on congressional resolutions instead; European powers rely on some kind of international authorization.

The emergence of the radical Islamic threat has made the classical distinction between war and peace even harder to maintain. Threats of mass violence can come from people who may be citizens or legal residents of the targeted country – and yet are working as allies with foreign organizations engaged in acts of war. Terrorist organizations often develop affiliated entities that engage in legal and peaceful modes of action to advance the same hostile goals.

Since 2001, the US and its allies have done enough damage to al-Qaeda to render attacks requiring elaborate logistical preparation less likely. Now other forms of action may become the main danger, like individual and spontaneous killings by self-proclaimed jihadi fighters, or, at the other end of the spectrum, carefully planned political campaigns such as the one directed against the Danish caricatures of Mohammed, which intend to provoke “spontaneous” violence either in the host country or elsewhere in the world.

So what can a Western state, acting under the rule of law, do in order to confront these kinds of threats? On one side, we have illegal actions which in theory could be confronted through a classical police work, but are actually impossible to anticipate. On the other, we have political campaigns that make use of legal tools – demonstrations and so on – but are even more efficient when it comes to terrorizing Western governments into small but significant forms of submission. And between that, there is an unknown proportion of the Muslim public, both in Western countries and in the Muslim world, that either tend to sympathize with the general aims of radical Islam, or simply do not recognize the legitimacy of any form of government which does not conform to Islamic law.

That is why the French security services have made extensive use of pre-trial detention on people suspected of terror links. Suspects sometimes have spent three years in jail without any trial, as a warning. Circumventing the rule of law with methods like “extraordinary renditions”, or the legal maze of Guantanamo, have certainly produced some results, though that remains hard to assess from open sources. But these methods are only workarounds invented by officials asked to produce results with very limited means. If the methods that have been tolerated thus far are now off-limits, security officials will likely search for other, less visible, workarounds. Just as the Islamic terror networks have become harder to catch, counter-terrorism forces might also be driven further underground in the pursuit of activists who have learned to operate legally until the very last moment.

The Italian CIA case is certainly one illustration of that trend. As embarrassing as this episode can be, the damage is still limited. No CIA operative is going to jail, and both the U.S. and Italian governments know that the political echelon cannot always control the judicial one – that is what the rule of law was meant to avoid. But measures will probably be taken in order to avoid future embarrassments such as this one. Since Western security services cannot simply give up trying to track terror cells, they will likely use other means, more discreet but not necessarily more legal.

But that will only work for some time. It is doubtful that a stable balance will ever be found between the rule of law and the imperatives of public safety in the age of terrorism. The French concept of raison d’État is not so much a set of rules as form of cheating triggered by a sense of urgency and tempered by common sense, at least when there is still some left. As every incident such as the recent Italian case seems to show, that may not be the case for very long.