Should terrorists with American citizenship, preparing to strike in places such as Yemen or Somalia, be treated differently than other terrorists? Should security considerations allow the government to violate their constitutional right to be tried in an American civilian court? If they cannot be captured and brought before an American judge and jury, should our courts at least be involved in reviewing their case before they are taken out by a drone or a special-forces team? Or, at the very least, should the courts review the criteria according to which American terrorists are targeted?
Concerns with the “extra” rights Americans have, above and beyond those all people have under the UN Universal Declaration of Human Rights, are fully legitimate. But consider the issue from a communitarian viewpoint: We correctly sense that Americans (or other citizens attacking their own homeland) who raise arms against us have betrayed us, wounding us beyond whatever casualties and damage they cause. Such Americans violate our trust, our sense of loyalty and community. When we fight non-Americans, we regret the killing involved and seek to avoid it, but we do not view them as having committed treason. Only members of our own community so offend us. Hence, they are hardly entitled to special privileges.
Treason in an Asymmetric Age
Terrorists with U.S. citizenship are not often discussed in terms of special privileges because of the way the issue is typically framed in terms of terrorists’ rights versus national security. This language has no place for the concept of community or the normative claims it poses. Indeed, this way of thinking sees a world populated by rights-bearing individuals packaged in states. But we have learned by now the importance of civil society—and above all, of communities—which include our families (nuclear and extended), friends and neighbors, voluntary associations, places of worship and much more. When we lose those, mountains of social-science data show, we are stripped of much of our humanity, capacity for sympathy and service, and of other-directedness. All this is undermined when we are betrayed—which we can be only by those we consider part of our own.
Another reason American terrorists are not viewed by the Constitution as having committed treason is that the text is rather explicit about what precisely constitutes treason: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” The authority entrusted with declaring war, the U.S. Congress, has not declared war against terrorists or many of the nations that harbor them. Hence, as the ACLU keeps reminding us, we have no right to kill these militants even if they are not Americans, a right we would have if they were soldiers of a nation with which we were at war.
Attorney General Eric Holder responded to this claim by pointing out that, after 9/11, “in response to the attacks perpetrated—and the continuing threat posed—by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to use all necessary and appropriate force against those groups.” The very language that separates theaters of war from others, however, is a normative precept that was relevant in an age in which nations fought each other. But it’s of limited use in an era in which terrorists—invariably masquerading as civilians—pose a persistent threat, often acting from nations which are either our allies or neutral parties. It is time to acknowledge that the whole world is the theater of the war against terrorism.
Not a Rhetorical Question
“Do you mean you would advise a targeted strike against a terrorist hiding, say, in Hamburg?” This German city was, we should recall, a staging ground for the 9/11 terrorists. Still, the question is asked rhetorically, as though it is obviously absurd to consider such a move. One should not be too quick to concede this point: If Washington had reliable intelligence that some terrorists based in Germany were preparing to strike us, we would ask the German government to deal with them. However, if it refused—say, on the grounds that German laws do not allow a response—we surely would neutralize these terrorists one way or another. This is what we are doing in Pakistan, a country considered our ally, and what we did when we captured and surreptitiously removed suspected terrorist Osama Moustafa Hassan Nasr from Italy. And if the world is the war zone of the war against terrorists, it follows that if an American raises his hand against us, he commits treason, regardless of his physical location.
Nor should one ignore that the Constitution is a living document that has been subject to considerable reinterpretations over the ages. The right to free speech, based on the First Amendment, was fashioned in its current form only in the 1920s. The term “privacy” is not so much as mentioned in the Constitution, and yet we consider it a major constitutional right—as of the 1960s. And we came a long way in rejecting the legality of separate but equal. Hence, it seems not to require a great deal of legal interpretation to read the last words in the lines on treason in the Constitution— giving aid and comfort to the enemy—as applying to the acts of American terrorists.