At the moment, we lack a way to decide whom to imprison for attacks against us and whom to release.
Hitherto, Western people's and their governments have placed people who do them harm into one of three categories:
The last grouping is a catchall for those not in the first two groups. For European countries over the past few centuries, enemy combatants who do not wear uniforms have been politically insignificant.
But the category of enemy combatants who do not wear uniforms is no longer insignificant. The prisoners held by the Unites States in Guantanamo Bay are in this group.
We need to invent the criteria for including people in a another group, and procedures for handling them. The procedures must presume some are innocent and some are not. Let us classify these people as `enemy suspects'.
Instead of abiding by its current `Use of Force Resolution', the United States should revoke it and adopt a Resolution that specifies a new classification.
As with captured enemy soldiers, the government would make it legal to imprison those who fall into the new classification. But at the same time, the new Resolution should specify how to determine when to release a prisoner.
In the older, three part classification, civilians defined as criminals are released from prison at or before the end of their sentence. Captured soldiers who wear uniforms are released from their prisoner of war camps when a peace treaty is signed.
But people in the current catchall group do not fit either category and may be imprisoned indefinitely. This should not be.
(The classification for spies and saboteurs should continue. If the people in the new category of `enemy suspects' are removed from the old group, few will be left. Because so few will be involved, a sufficiently senior authority in government, such as a US President, can set aside normal legal procedures and either pardon those who act illegally against members of this group or else release spies and saboteurs. During the Cold War, much US/Soviet spying was handled this way.)
The dividing lines among various groups comes from the power of a government to classify actions. The kind of classification that occurs depends on how much knowledge can be obtained.
For an ordinary criminal action, a court is the social mechanism used to decide whether a defendant should be imprisoned. A court is, essentially, an institution for gaining knowledge and making judgements.
Ordinary people, guards, are given the legal authority to coerce those who are supposed to be in prison — and to kill them under certain circumstances.
However, in the case of a war, it is often not possible for a court to decide into which category a defendant belongs, since the person involved may not be local and may not be individually identified.
In this instance, another governmental mechanism is used, a declaration of war, or some equivalent. As a result of this action, all people who possess a certain fairly readily defined characteristic, such as citizenship in a particular nation, are defined as the `enemy'. This is a crude classification mechanism, but it is the one used.
Ordinary people, now called `soldiers', are given the legal authority to coerce those who are categorized as the `enemy' — indeed, to kill them under certain circumstances.
Note that when individuals can be identified, a court is becoming the preferred social mechanism. We see, for example, the trials in the Hague of those who have been arrested and accused of war crimes in the former Yugoslavia.
However, in many circumstances, it either is not possible to identify individuals or it is not possible to bring those identified to trial without a war.
The idea behind the `laws of war' is to minimize harm to people crudely categorized as `the enemy', but who are not doing much, or any, damage. For example, surrendered enemy should not be killed; `collateral damage' should be minimized; and only military targets attacked.
The laws or `guidelines' for war are based, at least in part, on what is considered reasonably possible.
If I remember rightly, during World War II the average bomb dropped by an American airplane missed its target by 1500 meters (5000 feet). Axis bombs also tended to miss. Hence, both sides decided that bombing cities and killing civilians was acceptable, because that was all that was possible.
Early hydrogen bombs would destroy such large areas that their use also implied that it was acceptable to kill many civilians. (Incidentally since those bombs were developed, the US and the USSR worked on making smaller and smaller nuclear weapons.)
Modern precision guided weapons are a new technology. They enable the United States military to destroy targets with much less `collateral damage' than before. According to what I have read, only 800 or 900 out of every 1000 bombs dropped will miss their targets. (Some claim that as few as half or one-quarter miss, or even fewer. This rate compares to miss rates in the past of 990 out of 1000, or more.)
Regardless of the actual miss rate, fewer modern bombs will miss their targets. A consequence of this change in technology is that people are able to be more concerned about `collateral damage' and dead civilians.
Military weakness means that a fighting group uses different techniques. For example, the Palestinians do not have a navy of their own. So they have not been able to blockade the Israeli port on the Gulf of Aqaba the way the Egyptians did.
Instead, the Palestinians have employed suicide bombers. (On a side note: the relevant Palestinians have said repeatedly that their long term goal is to destroy Israel. I see no reason to disbelieve them. At this time, since they have not been able to destroy Israel, their immediate goal must therefore be to prevent a peace that ends the war. After all, there are many who want peace.)
In a civil war, as in the United States between 1861 and 1865, or in a traditional war, such as World War II, a government will declare a state of rebellion or war, and those actions will give it the legal authority to categorize people and to define the circumstances under which those people may legally be restrained or killed.
But the people who attacked the United States on 2001 September 11 did not affiliate themselves with a particular country. Hence, the US government could not declare war in the traditional sense.
Instead, the United States government decided:
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(From the United States 2001 September 14 Use of Force Resolution (Against Terrorism).)
This means that the President, or someone deputized to act on his behalf, makes the classification. The classification is based on whether the entity is thought to have
... planned, authorized, committed, or aided ... or harbored ...
those involved.
In brief, the `Use of Force Resolution' provides a classification mechanism that is different from those used by a court. This classification mechanism enables the US government to categorize people approximately rather than precisely. It means the government can act, even in ignorance. And it means more injustice.
Sadly, the `Use of Force Resolution' provides less stringent guidelines than a traditional declaration of war or rebellion. It therefore provides for less accountability. Consequently, if the Founders of the United States were correct in their understanding of politics, and I think they were, we are more likely to see governmental tyranny than we would in a traditional war or rebellion.
It should be replaced.