Fighting Terror Takes Pro-Active Military Approach, Experts Say

By Kevin Mooney | July 7, 2008 | 8:23 PM EDT

( - Democracies can respond more effectively to terrorism by embracing preventive military models rather than reactive criminal justice models, American and Israeli legal experts said Thursday.

With terrorists targeting the United States and Israel and using instruments of war, policymakers must recognize the flaws and limitations of a conventional law enforcement approach, the experts said.

Addressing a seminar in Washington, D.C., former U.S. assistant attorney Andrew McBride discussed the campaign against terrorism from a U.S. perspective. Col. Daniel Reisner, an Israeli Defense Forces (IDF) legal advisor, discussed recent changes in his government's policies.

The two were participating in a panel examining whether in the fight against terror, law is an asset or a liability.

McBride argued that the Bill of Rights and U.S. Constitution are designed to protect American citizens and permanent residents, not foreign nationals. Only those who "pledge allegiance to the body politic" are entitled to receive these special protections - not foreign enemies, he said.

While it is appropriate for the courts to intervene where the rights of citizens are concerned, it is not appropriate that they interfere with the executive branch's pursuit of foreign enemies, McBride added.

Applying the criminal justice model to the "armed conflict with al Qaeda" is not a workable solution, because it would provide terrorists with too many advantages and opportunities, he said.

McBride said the Bush administration made the right call in declaring terrorists as enemy combatants. He rejected the argument that U.S. constitutional protections should apply once a foreign terrorist is on American soil.

"That's like saying the closer they get to the target, the more rights they have," McBride said.

For his part, Reisner commented on the legal challenges associated with dramatic shifts in Israel's military and law enforcement polices.

Three factors were responsible for altering Israel's approach to terrorism in recent years: the enemy's use of military technology and tactics, the scope of the attacks, and the scope of the causalities, he said.

Israel moved away from treating acts of terror inside Israel as a police matter, adopting a model that allows for a strong military response. This shift began in 2000 - when the second Palestinian violent uprising (intifada) was launched - and has accelerated since then, Reisner said.

The law did not accommodate the idea of a war between a nation-state and non-state actors, he explained. For this reason, it became necessary to set legal precedents.

For the first time, the Israeli military was permitted to use its arsenal directly against terrorists and designate terrorist leaders as enemy combatants.

The Clinton administration did not approve of the approach, Reisner noted. Former Sen. George Mitchell traveled to Israel at the president's behest and after reviewing the situation advised the Israeli government to return to a law enforcement approach, he recalled.

Thursday's event was hosted by the Israel Project, an international non-profit organization, and the Israeli Democracy Institute, a body's whose aims are to promote political, economic and structural reforms in Israel.

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