On Tuesday, Oct 15, Abu Anas al Libi, captured in Libya on Oct 5, was arraigned in federal court in New York.  He is believed to have been instrumental in the bombing of the US Embassy in Nairobi, Kenya, in 1998.  He has pleaded “not guilty” to terrorism charges, and his lawyer is claiming that there is no connection between him and Al Qaeda after the ’98 bombing.

This case has, once again, brought up the question of how should terrorism be handled?  As a crime, or as an act of war?

The current administration, its actions re: drones and SOF strikes notwithstanding, has expressed that terrorism should be treated as a crime, and dealt with by the legal system.  To show this, they have brought al Libi to New York to face trial.  Earlier, in Nov, 2009, Attorney General Eric Holder ordered Khalid Sheikh Mohammed, Ramzi Bin al-Shibh, Walid Bin Attash, Mustafa Ahmed al-Hawsawi, and Ali Abdul Aziz Ali remanded into civilian custody from Guantanamo, intending to try them in civil courts.  Khalid Sheikh Mohammed was slated to be tried in New York State.  Under intense political pressure, and in light of the 2011 NDAA, they were eventually placed back in line for military trials.

The Clinton administration also publicly considered terrorism a matter for criminal justice (again, in spite of such things as Tomahawk strikes on camps in Afghanistan and an aspirin factory in Sudan).  In approaching it as a crime rather than an act of war, US intelligence organs were cut out of the investigations of the ’93 World Trade Center Bombing and the ’96 Khobar Towers bombing.  The possible connection to Osama Bin Laden, who was in hiding in Khartoum, Sudan, at the time (and in fact was under surveillance by Billy Waugh) could not be made because the law enforcement and intel sides of the house couldn’t, by law, talk to each other.

The resulting inaction (admittedly coupled with other foreign policy decisions, especially withdrawing forces from Somalia after the Battle of the Black Sea in Oct, ’93), served to increasingly embolden the fledgling Al Qaeda network.  The end result was 9/11.

For a time after 9/11, terrorism was treated as an act of war.  It was replied to with military force, and whether or not the long term effects have been as hoped for, at least at the beginning the effect was precisely as desired.  Several regimes with histories of supporting terrorism approached the US with offers to renounce the terrorists.  For a time, the terrorist networks were on their heels.

Now, with the war effort increasingly bogged down by legalisms, and the administration publicly espousing the Clinton view of “terror-as-crime,” Al Qaeda and their ilk appear to be getting bolder.  The foe is an asymmetric one; they adapt to strike our weaknesses, and they have identified our legalities as a weakness.  The more we broadcast this weakness, the more it will be exploited.

The argument over “crime vs war” about terrorism will go on for a long time.  Certain people will not back down from the claim that it is a crime, and should be dealt with by law enforcement rather than military force.  But it is evident that our enemies view their actions as war, and will act accordingly.  To pretend that it is something else only handicaps our defense.