The Battlefield or the Courtroom: Where Should We Fight the War on Terrorism to Win?

Julia Bertelsmann /

CHICAGO – This morning, the Chicago Committee for Heritage hosted a panel discussion titled “Lawyers, Terrorists, and the Common Defense: Has the Obama Administration Signaled Surrender to America’s Enemies?” The discussion featured Heritage policy expert Secretary Cully Stimson and Senator Jim Talent, and focused on the Obama Administration’s approach to foreign policy and terrorism.

Sen. Talent opened the discussion by stressing the U.S. Constitution’s emphasis on the government’s duty to provide for the common defense, to provide and maintain a Navy, and to raise and support Armies. He also pointed out that none of the provisions relating to the conduct of war are found in Article III., the article dealing with courts and judges. That is because courtrooms are not the appropriate forum for prosecuting wars.

Cully Stimson further argued that treating terrorism solely as a criminal act harms the rule of law, is insulting to the Geneva conventions, and rewards enemy combatants for violating the laws of war. It is a dangerous approach to winning wars and is regarded by our enemies as a sign of weakness.

Stimson offered a troubling overview of America’s history of fighting terrorism. The Clinton Administration treated Al Qaeda attacks and bombings during the 1990s as crimes, not acts of war, he reminded the audience, and Osama Bin Laden responded by issuing fatwas against the United States. Fast forward to 2010: the current Attorney General Eric Holder is reluctant to speak of radical Islamic extremism, and this reluctance is impeding an honest, comprehensive response to the threat.

Throughout the discussion, the panelists took care to emphasize the facts and figures of the War on Terrorism, so many of which have been obscured by the current Administration and through biased media coverage.

Stimson, for example, sketched a history of U.S. detainee policy. Since 9/11, the Department of Defense detained roughly 100,000 people in Afghanistan and Iraq. The CIA’s program, which was much maligned by the current administration, had 100 detainees. Of those 100, they water-boarded 3. CIA interrogations were conducted according to strict legal guidelines. The CIA is confined by Army Field Manual techniques, so they are actually more constrained than your local cops. For example, they are not allowed to lie to detainees, because lying is not recognized by the military as an interrogation technique.

Nevertheless, the Administration publicly released the details of the CIA’s interrogation methods and investigated the law enforcement officials who were acting according to established guidelines. Of course, Administrations can have legitimate disagreements over which methods are most appropriate, but the appropriate way for the Administration to change course would have been to respect what was done under the previous administration and to choose a clear set of new policies consistent with its political philosophy and appropriate to the changing security environment.

Instead, the Administration ordered the closure of Guantanamo with no new plan in place, and without having visited it. It stopped the CIA interrogation program, and promised to establish a special high value interrogation unit, which still didn’t exist a year later.

Meanwhile, Sen. Talent explained, the Administration has cut important military programs in the absence of a National Security Strategy from the President or adequate strategic justification. Our Navy and Air Force in particular are suffering from shrinking build rates and inadequate recapitalization, and stand to lose critical capabilities and assume ever more dangerous levels of risk.

Furthermore, the Administration has taken the wrong approach to missile defense and to the nuclear and biological threats. The Administration has cut the missile defense budget, capped the number of interceptors in Alaska, and canceled the Third Site program to deploy radar and interceptors in Poland and the Czech Republic–and it seems they’ve done so without securing stable, adequate funding for an alternative. It has reduced the tools at our disposal for responding to biological or chemical attacks, and its failed policy of engagement has merely bought time for Iran’s nuclear program.

What should our leaders do instead? Jim Talent and Cully Stimson offered a clear alternative:

We’re at war, so act like it. Set up a comprehensive system to deal with it. Establish appropriate interrogation techniques, and don’t tell our enemies in advance which techniques we’re going to use. Strengthen our military–don’t weaken it. Build a comprehensive missile defense system. Fight from a position of strength. Go on the offense and win.