Since the War on Terror began in late 2001, the American military has captured thousands of Al-Qaeda terrorists, Taliban soldiers and other assorted jihadists. Many of these men have been interrogated and released. Others have been returned to their countries of origin. One captive, John Walker Lindh, was prosecuted under U.S. criminal law. The remainder are being held in indefinite detention, including a group of more than 600 who are imprisoned at an American naval base in Guantanamo Bay, Cuba.

From its inception, the Guantanamo facility has aroused widespread international condemnation.1 Last fall, the International Committee of the Red Cross (ICRC), which monitors conditions at the site, complained that

"U.S. authorities have placed the internees in Guantanamo beyond the law. This means that, after more than eighteen months of captivity, the internees still have no idea about their fate, and no means of recourse through any legal mechanism."

They concluded that Washington must

"institute a due legal process in accordance with the judicial guarantees stipulated by international humanitarian law. This process should formalize and clarify the fate of each and every individual in Guantanamo."

Unfortunately, establishing such clarity is easier said than done. As American and international law is currently constituted, instituting "a due legal process" for the Guantanamo detainees would require that the U.S. government first decide whether to treat them as soldiers or criminals. But the modern terrorist is an awkward hybrid of the two and falls cleanly into neither category. Moreover, both designations imply a slew of legal protections that would significantly compromise the War on Terror.

So far, the U.S. government has responded to this dilemma by choosing not to choose. The so-called Guantanamo detainees, Washington says, are "enemy combatants" who may be denied the protections of both the Third Geneva Convention and the U.S. Constitution. According to this analysis, an "open-ended system of internment" is exactly what they are due. In at least one case, the United States has gone even further, assassinating suspected terrorists outside of a combat arena: In November 2002, an unmanned CIA aircraft destroyed a car carrying an Al-Qaeda commander and five traveling companions in the Yemeni outback--an action the Swedish foreign minister denounced as "a summary execution that violates human rights."

Morally and as a matter of expediency, the indefinite detention of terror suspects and their assassination in certain circumstances is eminently defensible. Members of Al-Qaeda and its affiliated groups are nihilistic terrorists who regard mass slaughter as a holy mission. Thousands of lives are at stake, and the United States government is rightly more concerned with protecting them than with pleasing human rights activists.

But the use of the "enemy combatant" designation is a legal stop-gap, a vague classification that sells short America's reputation as a freedom-loving nation. Simply put, the "enemy combatant" designation fails to provide a firm legal footing on which to wage a part of the War on Terror. If America is to safeguard its ideals as well as its citizens, Washington must overhaul federal law to account for the unique threat posed by apocalyptic terrorism. What is needed is nothing less than an entirely new legal category defined by statute--separate from both ordinary criminal law and the law of war--that would assign detainees some baseline level of procedural rights while permitting America to fight the war aggressively.

During the two decades leading up to 9/11, Islamist terrorists struck U.S. targets many times, taking hundreds of lives. With rare exceptions, however, the United States government stubbornly insisted on treating terrorism as a crime and individual perpetrators as criminals and not as participants in a war against the United States. In response to the 1983 bombing of the U.S. Marine barracks in Beirut, the first World Trade Center attack in 1993, the 1998 truck-bombings of U.S. embassies in Tanzania and Kenya, and the 2000 bombing of the U.S.S. Cole in Yemen, the FBI methodically drew up indictments and promulgated arrest warrants as if the terrorists were ordinary bank robbers or kidnappers.

The central problem with fighting terrorism through the courts is the dilatory, procedurally circumscribed nature of criminal law, the high standard of proof it entails, and the extensive rights afforded the accused. Nothing illustrates this better than the pursuit of Osama bin Laden himself, as Ruth Wedgwood pointed out in these pages several years ago.2 In 1996, then-President Bill Clinton directed a group of FBI and CIA officials to build a case against the Al-Qaeda leader so that he might be captured and prosecuted in an American court. But not until 1998 did the U.S. Attorney's office file an indictment. Meanwhile, when the government of Sudan put out feelers indicating it might be willing to turn Bin Laden over to the United States, Clinton hesitated. "The FBI did not believe we had enough evidence to indict Bin Laden at that time, and therefore opposed bringing him to the United States", then-national security adviser Sandy Berger explained, according to a front page October 3, 2001, Washington Post story.

Prosecutors would have equal difficulty securing convictions against many of the terror suspects captured recently in Afghanistan and Iraq. As Wedgwood noted in an April 2002 article in the American Journal of International Law,

"the usual rules of chain of custody and authentication may be difficult to meet for [evidence] obtained in a battlefield environment, where many witnesses are scattered, deceased or uncooperative."

Even a defendant such as the accused 20th 9/11 hijacker Zacarias Moussaoui--who has explicitly declared his allegiance to Bin Laden--presents prosecutors with problems. Last year, a federal court declared that the government may not pursue the death penalty or even allege that Moussaoui had any part in the 9/11 attacks unless he is granted the right to question a trio of fellow accused 9/11 masterminds held by the United States. As a result, it is likely that Moussaoui's prosecution will be shifted to a military commission of the type authorized by President George W. Bush to prosecute "violations of the laws of war and other applicable laws."

Are such commissions the solution to the hybrid threat posed by terrorists? At first, many observers thought so, for they appeared to avoid some of the major obstacles presented by the criminal justice system. Bush's order stated, for instance, that the tribunals would not be bound by "the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts." No relief could be sought in any U.S. or international court. The military officers serving on the commissions would comprise judge and jury, with conviction and sentencing (the death penalty is included as a possibility) requiring the concurrence of just two-thirds of commission members present.

But four months later, regulations published by the Department of Defense softened the order greatly. Under the new rules, each defendant would be represented by the Judge Advocate General's office, and could also retain the services of a civilian attorney of his own choosing, providing such lawyer had appropriate security clearance. The accused is presumed innocent until proven guilty, and the standard for determining guilt is the familiar "beyond a reasonable doubt" benchmark used in civilian criminal courts. The privilege against self-incrimination is protected. And a sentence of death cannot be handed down without a unanimous vote from all commission members, as conducted by secret written ballot.

As of this writing, only a handful of detainees have been designated as eligible for trial by these commissions. And it is questionable whether the tribunals will ever see much use. One problem is that they cannot be used to try U.S. citizens. Also, since they are run by the military, they will be perceived by international observers as kangaroo courts. But more importantly, the regulations promulgated by the Defense Department import many of the ponderous legalities of civilian courts. As Yale Law School's Harold Koh wrote in an April 2002 essay, "The Case Against Military Commissions",

"proceedings before these commissions will now be likely to suffer from many of the inefficiencies associated with judicial proceedings, but without garnering in return the global respect that genuine, credible judicial proceedings are accorded."

For the most part, the U.S. government has bypassed entirely the criminal justice system not only with the Guantanamo prisoners, but with several U.S. citizens held stateside--including Yasir Hamdi and Jose Padilla. Both have been designated "enemy combatants" and dispatched to indefinite detention in military brigs. (Habeas corpus petitions have been filed on behalf of each, and the ensuing litigation will likely be resolved by the Supreme Court later this year, along with a set of other appeals that will eventually serve to define the rights of enemy combatants.)

The Padilla case is worth focusing on at greater length because the unconventional nature of his alleged plot illustrates perfectly why the existing model of criminal law is inappropriate for fighting terrorism. The U.S. government has accused Padilla of conspiring to use a bomb to spread radioactive material throughout a U.S. population center. But it is questionable whether prosecutors have enough evidence to convict him in a civilian court. Indeed, this is likely the main reason he has been designated an enemy combatant. This raises the profoundly important and unresolved question of what the United States should do with a man who has been credibly accused of a potentially horrific attack against the United States, but against whom criminal charges cannot be proven beyond a reasonable doubt.