I would like to preface this post by saying that ideas contained herein are still very much in developmental stages, indeed in their infancy. I have not discussed them at length with anyone and welcome discussion to hone or change them.
The friend of my enemy is my enemy… Although I support non-intervention for non-direct threats to the US, once an attack has been made and the decision to wage war has been approved, I support only complete warfare with the goal of unconditional surrender of the offending nation (or similar ends for non-state actors). Terrorism itself has changed how we can prosecute a war. Being attacked by Japan, declaring war on the nation, and waging that war until unconditional surrender has been achieved—that is relatively easy. Being attacked by a group that is not associated with a state is more difficult. What do you declare war against? Who do you attack? What sovereignty do you respect and whose do you trample? These are very difficult questions which have been answered, to the best of my knowledge, by authorizing the use of military force against certain stated objectives. This is similar to but legally different from declaring war.
My elementary analysis of the proper method of executing existing policies tries to mirror the current laws of war. First, declare war against an organization (i.e. al-Qaeda). Second, just as the law of war permits you to kill any member of an opposing military whether they are fighting you at the moment or not, armed or not, in uniform or not; chase and kill or capture any avowed member of that group. Third, treat “detainees” as POWs (do not release them early, do not try them, just hold them away from conflict until the war is over). Finally, assess the individual circumstances surrounding nations interacting with the non-state group. For instance, if firm evidence proves that a state is providing active support to the group with which you are at war, they lose their claim of neutrality.
As I said before, this is similar to what we are currently doing, but different enough to raise issues. Two of the most obvious are detainees and nations supporting terrorism. In my plan detainees would be legitimate prisoners of war, with all the legal implications. Nations sponsoring terrorism would lose their claim of neutrality in the situation and be legitimate targets for attack. That does not mean that every one should be attacked, and I am not using this to say that we attack Pakistan now, as the article and this comment may lead some to believe. We are applying diplomatic pressure at the moment, which may be the best option given the intelligence desired endstates. However, the option should not be far off the table.
This is a complex issue and raises many more questions. What if the member of the group is a citizen of the US? Can you try POWs for war crimes rather than releasing them at the end of the war? How do you determine the level of support from a nation required before declaring them part of the enemy? These are all difficult, but the disheartening problem is that we are not even at the point to deal with them yet. Congress has allowed the President to use force without declaring war against either a state or an organization. Consequently, we cannot treat captured combatants as POWs. They then are released and kill more Americans. We cannot (or have not) used the full power of our national security institutions against even those who help our enemies. There are very ambiguous questions involved in fighting non-state organizations, but to be able to address them properly, we first need to fix the basic functioning of our own governmental institutions.