The failed October 2013 raid by U.S. special operations in Somalia offers an example of the conceptual issues we are facing in our conflict with Al-Qaeda and similar movements. In the raid to capture Al-Shabaab leader Ikrima, failure to accomplish their goal resulted in a withdrawal of U.S. forces, rather than the killing of the target. If Ikrima was truly a valuable enough enemy target to be captured then he is also valuable dead. The raid force could have killed the target as soon as it was determined that they were unable/unlikely to capture him alive, but this was contrary to their orders. This is perhaps and example of decision- makers that were captive of an “arrest mentality” which is not appropriate for combat in war but is inherent in criminal law. The result was that, not only did the U.S. fail to capture Ikrima, forfeiting any intelligence value he may have provided, but he is still able to operate. Moreover, Ikrima will be more difficult to locate in the future, the enemy has been emboldened, and perhaps most damaging, the U.S. has demonstrated to its own people, to its enemies, and to the world that it is still conflicted in its approach to the War on Terror. This type of confusion, and the resulting undesirable results, are a natural outcome of the application of inappropriate conceptual frameworks to real-world problems.

In an article on ForeignPolicy.com, Mrs. Brooks identifies this problem, focusing on the confusion over which of the two pre-existing philosophical and legal approaches we should adhere to while combating Violent Non-State Actors (VNSAs). She uses Wittgenstein's philosophical toy, the duck-rabbit, to portray the crux of the problems by identifying that there are both those who view terror as crime and those who view it as warfare, and implies that its categorization is subjective, that each interpretation is wrong or right depending on how it is viewed.

Mrs. Brooks then simply rephrases the false dilemma between the two frameworks, this time focusing on the implications/consequences of each, "Do we prefer a world in which there are few constraints on the state's use of lethal force, which creates one set of dangers -- or do we want a world in which the state is more constrained, which creates a different set of dangers?"

This line of reasoning assumes that because the problem does not fit into either of our current models, it must be forced into one or the other and the choice should rest on which set of consequences are most easily stomached.

But these pre-existing models [the legal framework and the military framework] emerged to address different challenges than those to which they are now being applied. If these conflicts are not truly crime and not truly war and neither approach can sufficiently address the problem when the threat does not fall fully into either category. As such these approaches have been expanded, modified and essentially stretched. The result has been confusion, indecision, and usurpation. On the one hand, the excessive prohibitions of the war framework hamper our effectiveness in combating non-state actors outside our boundaries, as seen in the failed raid in Somalia, rendition programs and the continuing problem of how to handle Guantanamo detainees. On the other hand, the legal framework is being perverted by increasingly oppressive measures, such as the classification of citizens as enemy combatants, drone killings of citizens, and unbridled government surveillance - clearly undermining civil liberty within our borders.

For most of history, those that refused to obey the established laws of war were not privy to being protected by them. Yet, in dealing with many contemporary VNSAs, nations are trying to decide between two equally inappropriate solutions in the legal-criminal framework or the war-enemy nation framework? While the enemy here doesn't fit into either category, most of the dialogue is focused on trying to determine which which category is the right solution. Contrary to Mrs. Brooks’ assertion, we do not have to choose between these two unsatisfactory results. Mrs. Brooks never considers that perhaps there should be different sets of rules - those that apply to US citizens and non-citizens inside the borders of the United States, and others that apply to non-citizens outside our borders (or if you wish to be more specific: in war zones, or outside sovereign nations, or in failed states, or in VNSA controlled areas, or wherever it is decided to draw this line).

A nation's highest moral order is to protect its own citizens and their interests. As a result different frameworks have emerged for how a nation deals with its own population and other nations/groups in the world. The first set of rules exists to protect our liberties and prevent dangers to our citizens from within, while the second set of rules enables us to be as effective as we can be in combating our enemies abroad, to protect the nation from external threats. It is naive to think that a nation should treat its own citizens and its enemies in a similar manner or that the nation should subordinate protecting its citizens to accord to an ideal international law.

The international system has no law. It is anarchy. There is no higher government capable of enforcing law in the international arena, only state actors, and increasingly non-state organizations and individuals. Despite what Mrs. Brooks argues in another piece, there is no rule of law outside of the nation that provides, guarantees and adjudicates it. There are international agreements and customs, but these are law only the extent that nations treat them as such. They may abided by as they suit a nation and may be discarded when they do not — they are the equivalent of social pressure and fear of retaliation rather than law. They are only enforced through the force or threat of force by other agents. International organizations are not legal entities, but merely organs with which to garner and coordinate the power of their member states - they are the pretty lie painted over power derived from an international tyranny of the majority. The reality is that the true law in anarchy is always power. A government that is capable of killing anyone, anywhere on earth, and can accept the consequences of this (such as the international community uniting against it), can do so...the only law that truly binds it is not international but its own national laws — the constitutional law that created and empowered it, and the will of its citizens to allow it to exist. A nation’s first duty is always to its citizens and protecting them from external threats and securing their liberties can not be treated as mutually exclusive.

The law of war may be the right approach against certain enemies, civil law may be the right approach against others, but to address the outliers, these two concepts cannot be stretched without detrimental effects in both arenas. Both frameworks must be strictly defined and constrained and new approaches must be developed for those gaps between them.

The truth is that we are facing neither a duck nor a rabbit. We must flip the image again. We need another framework.