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If I could change one thing about the way America is fighting terrorism, it would be the seeming inability to grasp the difference between lawful and unlawful combatants. Failing to keep this difference in mind has led to missteps by the president and the justices alike. The Supreme Court’s failure has led to the wrongful application of the Geneva Conventions, endangering soldiers and civilians. And the president’s underappreciation of this distinction is keeping our troops ensnared in Iraq on the erroneous assumption that unlawful combatants can be defeated in a mainly conventional war. In truth, the “war on terror” is as old as the Barbary pirates and other “enemies of mankind,” and it is a misjudgment to think it will be helped either by extending the reach of a legal process otherwise reserved for law-abiding soldiers and citizens or by insisting that the continuing threat of radical extremists can be resolved in a war without a definable end. In Hamdan v. Rumsfeld (2006), the Court purports to bring the war on terror within the Geneva Conventions. But one cannot transform the nature of one’s adversary by the stroke of a judicial pen. The president rightly reasoned that Geneva did not apply to al Qaeda because it fights dishonorably — out of uniform and targeting or hiding among civilians. By its application of Geneva, the Court grants protections “indispensable” among “civilized peoples” to the distinctly uncivilized. On one level this is magnanimous, but in the words of Ronald Reagan rejecting an earlier attempt to extend Geneva, the attempt is also “fundamentally and irreconcilably flawed.” Differentiating lawful and unlawful combatants is not an exercise of revenge or animus but an effort to preserve civilization. The military is asked to aim only at military targets and to preserve the lives of civilians and prisoners of war. For this to work, soldiers must be assured that civilians and prisoners are not taking aim at them. When the Court gives those who disguise themselves as civilians a level of combatant status, it drastically erodes the restraints against killing civilians — restraints that have been limiting war’s savagery since the Middle Ages. The president was right to draw a bright line between soldier and unlawful combatant, but unfortunately, the brightness of that line has not brought a related difference home to him. Conventional wars have a beginning and an end. Uniforms and arms are taken up and put down. Whatever the war on terror is, it does not follow this course. Having failed to fully grasp the significance of being confronted by radicalized, irregular forces, the president persists in fighting an unconventional war by conventional means. Vietnam taught us that a mechanized army is no match for guerilla fighters. To forget that lesson — to think it a fair fight to put honorable soldiers into a vicious back-alley brawl — is to let Osama bin Laden control the offense. The tragic loss of life on 9/11 was his doing; much of the continuing anxiety has been our own. The president and Congress have made significant headway since the towers fell five years ago: Al Qaeda’s command structure is gone, their Afghan hide-outs are decimated, and their ability to use financial and communication networks is limited. And the president achieved these victories without indulging in the wholesale condemnation of American Muslims or an ancient faith different from his own. Yet in Iraq and with some of the mindless, nail-clipper security at home, we have let Osama get the better of us. These miscalculations are dragging us down. We only play into his hands to continue to occupy Iraq, and when we cower in defensive fear, we betray the courage of those on United 93 who challenged their midair captors. Mislabeling the terror threat that remains as a “war” invites the rationalization of misdirected measures at home and abroad. To not see the difference between soldier and barbarian is to embrace the false pretense that we can be freed of all terrorist danger. The enemy that struck on 9/11 will be met effectively neither by the judicial hubris that falsely collapses the categories of lawful and unlawful combatant nor by the presidential error that insists upon a theater of conventional combat longer than America’s campaign against Hitler. The Court is better advised to stick to its properly limited role of resolving “cases or controversies,” and the president and Congress have serious work to do reducing nuclear proliferation, hardening domestic targets, and responsibly enhancing our surveillance and counterterrorism efforts. Mistaken categorization must not distract us.
Douglas W. Kmiec is a professor of constitutional law at Pepperdine University. He was the head of the Office of Legal Counsel in the Justice Department under Presidents Ronald Reagan and George H.W. Bush.

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