Mike,
You are correct that the law poses little constraint on this guy. It can't deter him, and it can't retaliate in a way that deters other guys like him in the future. But he is not "at state" for that period in time, because that infers not that he has state-like power, but that he is held to state-like restraints on action. He isn't, and that's what makes him scary.
The only thing a state can really do is:
A. Take these guys serious. They can get to you like never before, and they can come at you with state-like power like never before.
B. Design your long-term foreign policy globally to be implemented in a manner that reduces the motivation and the causation for the numbers of such individuals to expand and also feel compelled to attack you to achieve their ends.
This is why I say the "Friendly Dictator" is an obsolete concept that we need to retire from our quiver of foreign policy arrows. Consider a country like, say, Libya.
Col Q isn't the most good governance focused guy out there. The top Libyan insurgent group that is trying to take him down is the Libyan Islamic Fighting Group (LIFG). These guys are built around a core of former foreign fighters who fought with the Muj in Afghanistan against the Soviets. As Libya was one of the top sources of foreign fighters for Iraq, I suspect many of those had LIFG linkages as well. Their goals are purely nationalist. They don't think Libya is as true to the principles of Islam as it should be under COL Q, and find his government to be "corrupt and oppressive" according to Wikipedia. I suspect that if I drilled into the facts of the matter and could sit down and talk with these guys I would find that they question the legitimacy in their eyes of Qadaffi to rule, that they feel they have no legal, trusted, or certain means to make changes to government; and that most likely the segment of society they draw from feels it is treated with disrespect in some major ways as a matter of status, and quite possibly that they feel that the rule of law as applied to them is unjust. This is Causation. This is what creates the conditions of insurgency within this populace. The LIFG is just a symptom, a group that emerged within those conditions caused by the government to challenge the government.
Now Qadaffi comes to the U.S. and says "Hey, I have AQ in my country. These LIFG guys are AQ and I will help you in the GWOT to defeat AQ is you help me defeat the LIFG/AQ threat here."
OK, yes, AQ is conducting UW in Libya and is targeting LIFG and there is some affiliation there. But AQ is still AQ with its Regional/Global agenda and LIFG is still LIFG with its nationalist agenda. A non-state UW movement meets a nationalist revolutionary insurgency movement.
Now, if the U.S. desperate for allies in the GWOT sees a golden opportunity to bring a Muslim government on board as part of the coalition against AQ (hey, this makes us look better in not being "anti-Muslim", right?) what have we actually done?
Well, what we have done is given these guys motivation to attack the US. They already had causation to exist, and that was nationalist. Their leadership is not a big fan of AQ, but then we come along and make a decision that validates AQ's sales pitch.
So the logical choice of making an ally of Qadaffi and then conducting capacity building with him to leverage his security forces more effectively in the war against AQ in North Africa actually makes the likelihood of terrorist attacks on the US greater. We piled Motivation on top of Causation because we did not properly understand the nature of the insurgency in Libya or the Nature of AQ and their UW operations either one. Pure, Intel-driven, threat-centric lunacy.
Smarter approach is to out-compete AQ for influence with the LIFG. Conduct UW ourselves with them, but promoting non-violent approaches to changing governance that historically are far more successful than violent approaches. This puts the Charlie Bravo on AQ who is peddling violence and hate and could give a rip about Libyan nationalism. At the same time we go to Qadaffi and say we can help him neutralize the LIFG. But he needs to change. We mediate talks between him and the insurgent leadership. Perhaps this is the time for his much more moderate son to step up as leader. What carrots can we put on the table to entice that option? What about LIFG, they raise some good points, what can Libya do to reasonably meet some of these concerns? etc. Taking this approach we REDUCE motivation to attack us, and also help immunize Libya to AQ's UW influence and more effectively accomplish what we hoped to do by helping Qadaffi just put the beat-down on his own populace approach.
How does lawfare come in? Well, there is this problem with Libyan rule of law being perceived as unjust. A focus on promoting Justice (rather than the current misguided promotion of ROL). There also is this matter of the populace not having legal means to affect change of governance. Another good place for the lawyers to help contract mechanisms that make sense in this culture and that are acceptable to all, and that can actually work.
This is the indirect approach for getting at your guy with the WMD. If you do this right with Libya odds are this guy does not come from Libya. He could, but the pool is much smaller as we have had a positive role in reducing both Causation (reducing the conditions of insurgency) and Motivation (not making the US clearly a part of the problem that must be reduced in order to have success at home).
Repeat this approach across the area where AQ is operating as necessary until they become moot for lack of target audience (as we continue to CT the hell out of them and the carefully selected nodes of their UW network, not confusing the insurgencies they leverage for actually being AQ just because they ordered the t-shirt).
I suspect the lawyers have the same problem that the development crowd has. They bring great tools to the table, they bring great people to the table, but they have been handed an incredibly flawed picture of what the problem is by the Intel guys and they really don't understand insurgency and only have what the COIN guys have told them to go off of. But the Intel guys don't really understand WHY this threat exists, just WHO it is. And the COIN guys don't really understand WHY there is insurgency, just what various states have done over time to counter insurgency.
Once we redefine the problem more accurately, I believe we find more appropriate and effective ways to apply the law toward addressing it.
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