A New Century's Wars

It's Time to Decide the Rules of Engagement

George W. Bush's refusal to work with Congress and other nations to update national and international legal norms to fight al-Qaeda immediately after Sept. 11, 2001, now haunts the nation and his successor. Bush's stubborn rejection of sharing authority, and responsibility, left us to fight a 21st-century enemy with mid-20th-century instruments of justice.

Today the failure to grasp the need for change created by the globalization of crime and punishment has migrated to the opposite end of the spectrum -- to the American Civil Liberties Union and other critics on the left who absurdly accuse President Obama of adopting the Bush agenda on national security as his own. They are now the ones who are stuck in time.

Speaking somewhat caustically at the National Archives on Thursday, Obama implicitly urged these critics not to rush past the obvious.

Unlike Bush, this president insists on oversight of his actions by the courts and Congress. And he wants to collaborate with Congress on detention policies that "should not be the decision of any one man." Obama hinted that among the modifications he would like to see is a form of preventive detention for suspected terrorists who cannot be convicted in U.S. courts but who "remain at war with the United States." He views them as prisoners of war -- but a different kind of war.

That thought was central to his convincing refutation of GOP fear-mongers who portray Americans as automatically becoming endangered if terrorist suspects are moved from the prison in Guantanamo to the U.S. mainland.

But what Obama proposed in his clear and balanced speech was overly modest when compared with the huge challenges posed by the rapid changes being forced on every nation and its practice of the rule of law. Even as it makes government power more necessary, globalization renders government practice obsolete.

Obama offered congressional oversight in national security matters as one panacea. But Nancy Pelosi's spat with the CIA over what she was or was not told underlines the inadequacy of that oversight. It needs to be immediately broadened, and deepened, as CIA Director Leon Panetta proposed last week.

And Obama failed to offer support for innovative proposals for a new system of national security courts able to prosecute and adjudicate transnational crimes while handling classified information from domestic or foreign sources. The need for such courts should be apparent to anyone who read these two sentences in a Post article last week:

"Ahmed Khalfan Ghailani, an alleged al-Qaeda operative indicted in the 1998 bombings of two U.S. embassies in Africa, will be tried in New York. Ghailani, a Tanzanian, was captured in Pakistan in 2004, held at a secret site by the CIA and transferred to Guantanamo with other 'high-value' prisoners in 2006."

Whoof. The rapid scene-shifting makes the brain ache. And, as Obama indicated Thursday, the Ghailani case is relatively straightforward. The president's work in fixing the balance of civil liberties and security needs has only begun.

The Geneva Conventions and traditional notions of collateral damage are inadequate guides for dealing with the wars in Iraq and Afghanistan and the global struggle against jihadist terror networks. The vocabulary and logic of conflicts past no longer cover all cases.

War in Afghanistan is at its core a matter of collateral damage. Without large organized military units confronting each other along fixed fronts, battle is haphazard and free-floating, a sometime thing that wounds or destroys whatever turns up in its path.

Chaos, not the order of final victory or defeat, is the purpose that drives al-Qaeda and its allies. Disruption of the guerrillas and any civilian environment they can control -- Mao's sea in which the fish swim -- is the antidote necessarily pushed by the United States, NATO and now the Pakistani army in the Swat Valley.

Existing international institutions and legal codes were not designed to deal with the fluid and harsh reality of asymmetrical global war. But they provide a sound enough basis for change that will preserve the fundamentals of democracy.

By promising to close Guantanamo and ending Bush-era interrogation abuses, Obama has gained credibility abroad. He should now spend it by calling for a multiyear international conference to modernize the rules of armed conflict. His presidency offers the United States the best chance it is ever likely to have to influence such a gathering, which would also force Congress to focus on updating U.S. national security law. It is a big idea whose time has still come.

jimhoagland@washpost.com