[Update: Ken Anderson has weighed in on this issue in great and persuasive detail - be sure to check it out.]
Wesley Clark and Kal Raustiala have an op-ed in today's New York Times in which they criticize the Bush Administration's policy of treating al Qaeda members as combatants rather than mere criminals. Among other things, Clark and Raustiala contend that
Labeling terrorists as combatants also leads to this paradox: while the deliberate killing of civilians is never permitted in war, it is legal to target a military installation or asset. Thus the attack by Al Qaeda on the destroyer Cole in Yemen in 2000 would be allowed, as well as attacks on command and control centers like the Pentagon.
It seems to me that this particular argument is missing a critical point: attacks on military objectives are indeed permitted, but only when carried out by someone with the combatant's privilege. Insofar as al Qaeda members lack that privilege, their conduct in bombing the USS Cole remains an illegal act of mass murder rather than a lawful act of war regardless of whether the perpetrators are deemed to be subject to military detention in connection with armed conflict.
Or so it seems to me. If anyone takes a contrary view, I'd be interested in seeing the counterargument. (One might argue, for example, that eligibility for detention cannot be separated from eligibility for the combatant's privilege. I don't agree with that view, but perhaps someone wants to advance it in more detail). Please note that I'm not trying to solicit comments for or against the general wisdom of adopting military or criminal models of response to terrorism; I'm just interested in the IHL question implicated by the quoted passage.