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Today’s New York Times features one of the silliest op-eds ever. The authors are Wesley Clark, the retired general and 2004 presidential candidate, and Kal Raustiala, director of the UCLA’s Burkle Center, where Clark is a fellow. (The Burkle Center is named for Ron Burkle, a billionaire pal of Bill Clinton.)

Here is their argument:

Since 9/11 the Bush administration has sought to categorize members of Al Qaeda and other jihadists as “unlawful combatants” rather than treat them as criminals. . . .

Treating terrorists as combatants is a mistake for two reasons. First, it dignifies criminality by according terrorist killers the status of soldiers. . . .

Critics have rightly pointed out that traditional categories of combatant and civilian are muddled in a struggle against terrorists. In a traditional war, combatants and civilians are relatively easy to distinguish. The 9/11 hijackers, by contrast, dressed in ordinary clothes and hid their weapons. They acted not as citizens of Saudi Arabia, an ally of America, but as members of Al Qaeda, a shadowy transnational network. And their prime targets were innocent civilians.

By treating such terrorists as combatants, however, we accord them a mark of respect and dignify their acts. And we undercut our own efforts against them in the process. Al Qaeda represents no state, nor does it carry out any of a state’s responsibilities for the welfare of its citizens. Labeling its members as combatants elevates its cause and gives Al Qaeda an undeserved status. . . .

The more appropriate designation for terrorists is not “unlawful combatant” but the one long used by the United States: criminal.

This is so vapid, it does not even rise to the level of sophistry. The authors argue that the U.S. should “designate” terrorists as “criminals” rather than “unlawful combatants” for purely rhetorical reasons: because calling someone a “criminal” implies less “respect” and does not “dignify” him.

The rhetorical argument can be dispensed with in a single rhetorical question: What do these guys think unlawful means?

But their proposal has enormous substantive implications, to which they appear to have given only the most shallow consideration. To begin with, the government cannot simply “designate” anyone a criminal. Such a designation requires either the criminal’s consent (in the form of a guilty plea) or a conviction at trial.

The government can designate someone a criminal suspect or defendant, but this confers on him a panoply of legal rights. Among them are the right to be released if not charged or convicted, which can make it possible for even a guilty man to go free; and the right against self-incrimination, which would make it difficult if not impossible to interrogate terrorists for the purpose of gathering intelligence to capture other terrorists or prevent future attacks.

The criminal justice system is fundamentally punitive, not preventive. The purpose of declaring someone a combatant is to keep him off the battlefield, thereby weakening the enemy’s ability to attack in the future. The justice system can do nothing about a “crime” that has not yet been committed.

Even legitimate enemy combatants–i.e., uniformed soldiers–do not have the rights accorded criminal defendants in the justice system. The former may be held for the duration of armed conflict. It is perverse to suggest that terrorists should have more rights than legitimate soldiers.

What Clark and Raustiala propose is to treat terrorists as civilians. The result of their proposal would be to put actual civilians, including women and children, in greater danger by making it harder to prevent terrorist attacks. The claimed benefit is that calling terrorists “criminals” would deprive them of respect.

How many innocent lives are they willing to sacrifice for an exercise in name-calling? To our mind, the only sensible answer is zero.

Indeed.

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