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Terrorists: Not criminals or soldiers but a distinct species

By Amitai Etzioni, Special to CNN
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STORY HIGHLIGHTS
  • Amitai Etzioni: President Obama should set one clear position on treatment of terrorists
  • Etzioni: Terrorists can't be treated as criminals; prevention, not prosecution, needed
  • They aren't soldiers, he says, since uniforms set troops apart from civilians, show nationality
  • Terrorists deserve rights but aren't entitled to face their accusers, Etzioni says
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Editor's note: Amitai Etzioni is professor of international relations at George Washington University and the author of several books, including "Security First" and "New Common Ground." He was a senior adviser to the Carter White House and has taught at Columbia and Harvard universities and the University of California, Berkeley.

(CNN) -- President Obama should end the legal seminar on the rights of terrorists. He should instruct the lawyers at the State and Justice departments and Pentagon that the debate is over.

The time has come for all to accept that terrorists cannot be treated as criminals. The main reason is that security requires preventing attacks rather than prosecuting the perpetrators after an attack. This is particularly evident when we concern ourselves with terrorists who may acquire weapons of mass destruction.

It also holds for terrorists who are willing to commit suicide attacks: They cannot be tried, and they pay no mind to what might be done to them after their assault. Finally, even terrorists not bent on committing suicide attacks are often "true believers" who are prepared to proceed despite whatever punishments the legal system may throw at them.

In contrast to prevention, law enforcement often springs into action after a criminal has acted: when a body is found, a bank has been robbed or a child has been kidnapped.

By and large, the criminal law approach is retrospective rather than prospective. Law enforcement assumes that punishment serves to deter future crimes -- not to eliminate them, but to keep them at a socially acceptable level. This will not do for the likes of Osama bin Laden.

Nor should terrorists be treated as soldiers, a dignified profession and calling. Soldiers wear uniforms that allow one to tell foes from civilians and thus prevent harming the latter when fighting the former. And the insignias that mark soldiers make it clear which governments they serve, governments that can be held accountable for their conduct -- obligations terrorists refuse to discharge. They cannot have it both ways: flout the rules of war and seek the benefits of these rules as prisoners of war.

Obama surely has the legal training to realize that our minds are big enough to cope with more than two categories, that terrorists are neither fish nor fowl, neither criminals nor soldiers, but a distinct species.

As such, terrorists are not without any rights. They should not be killed if they can be captured without undue risk; they should not be tortured; and their detention should be subject to, say, annual review by an institutional board -- composed of people who have security clearance, not necessarily military officers. Such a board should follow simplified procedures, as parole boards do in prisons, rather than those of civilian courts or military commissions.

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Terrorists should not be entitled to face their accusers, or else we would divulge the sources and methods of our information-gathering about their nefarious acts. And they should not be released until we have strong reasons to hold that they are no longer a danger to us, our allies or anyone else.

The Obama administration's position is so multifaceted that even someone who follows it closely and has considerable training cannot make out what line it is following. Some terrorists are to be tried in civilian courts -- as long as they are not in New York, or maybe only if the civilian courts are located on a military base. Or terrorists may be kept at Guantanamo Bay, Cuba, or shipped to countries that do not abide by our rules or maybe only to those that do.

No one can build public support and legitimacy for such a cacophony of positions and voices. It is time to settle the matter and tell the government lawyers to move on.

The opinions expressed in this commentary are solely those of Amitai Etzioni.