In broad strokes, this is a predicament prosecutors face all the time in regard to ordinary criminals. And the usual rule is simple: When the burden of proof fails to be met, a defendant goes free. Thus does our society follow the principle originating from Abraham's plea unto God that a city of wicked men might be spared for ten righteous souls. But though this ancient trade-off is one Judeo-Christian peoples have been willing to accept for centuries, it is one that must be rethought in the age of apocalyptic terrorism. If a regular murderer goes free on a technicality, a handful of future victims could later lose their lives. If a key Al-Qaeda terrorist goes free, thousands could perish. Ancient habits of mind and law die hard. But the intersection of militant ideology and weapons of mass destruction that looms over our future should be sufficient to make us rethink long-standing aspects of our social contract. Put starkly, Islamism and those who embrace it must remain outside the social contract. To do otherwise is to participate in our own destruction.
As important as these existential legal problems may be, they were pushed to the background in the immediate wake of 9/11. On that day, and for months afterward, the battle against terrorism was conceived in military terms. Tens of thousands of U.S. troops were deployed to Central Asia, the Taliban was routed from Kabul and Kandahar, and Al-Qaeda's terrorist training camps were destroyed. This shift to a military approach was long overdue. Bin Laden explicitly declared war--or "jihad"--against the United States and its citizens several times during the 1990s. And his attacks were on such a scale that they clearly went beyond regular crime. The 2000 attack in Yemen, for instance, was a military-grade assault that almost resulted in the sinking of a U.S. warship. And the 1998 African embassy bombings produced almost 5,000 casualties. Had the Clinton Administration taken military action against Al-Qaeda during this period, 9/11 might have been averted. Certainly, as Wedgwood argued in The National Interest's Winter 2001/02 issue, the United States would have been well within its legal rights under international law.
But when jihadists began arriving at Guantanamo, the war paradigm presented the United States with a problem. Under the Third Geneva Convention of 1949, prisoners of war are granted a variety of protections. In particular, they cannot be interrogated in any meaningful way. Article 17 requires that each prisoner is "bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number." If the prisoner refuses to give additional information, the government is forbidden to apply "physical or mental torture, nor any other form of coercion." Nor can prisoners be "threatened, insulted, or exposed to any unpleasant or disadvantageous treatment."
Respecting these strictures is not a realistic option for the United States as it wages the War on Terror.3 America went to war in Afghanistan primarily to protect itself from Al-Qaeda terrorists. Having captured hundreds of the group's foot soldiers and several of its masterminds, it would have been unimaginable not to pry from them everything they knew about Al-Qaeda's structure, membership and plots. Predictably, therefore, the United States has maintained that the Third Geneva Convention does not apply because neither Al-Qaeda's terrorists nor the Taliban's disorganized rabble qualify for protection under the conditions specified in Article 4 of that Convention. Both groups, the United States government contends, comprise "unlawful" combatants who are subject to just about any manner of detention and interrogation the United States may wish to apply.
As a matter of law, the United States has an arguable case (albeit more so as regards Al-Qaeda than the Taliban). In Ex parte Quirin, a 1942 case involving the treatment of captured German saboteurs, the Supreme Court held that "The law of war draws a distinction between . . . those who are lawful and unlawful combatants." The latter category was said to include "an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property." He is "generally deemed not to be entitled to the status of prisoner [of] war." If, as the Supreme Court found, a German soldier ferried in a U-boat to blow up a U.S. aluminum plant is an unlawful combatant, the same description would seem to apply to Al-Qaeda.
But whatever the legal merits of this argument, the sheer number of prisoners at Guantanamo serves to illustrate just how obsolete the rules of war have become. When the Supreme Court ruled in Quirin six decades ago, it was taken for granted that wars were fought between sovereign nations fielding uniformed, well-organized armies. "Unlawful combatants" were seen as rarities to be "subject[ed] to trial and punishment by military tribunals", as the Quirin opinion puts it. But the proposition that Western nations would one day encounter whole legions of terrorists with no clear territorial ambitions and motivated by nothing except eschatological fantasies would have been unthinkable. Thus did the concept of the unlawful combatant remain an obscure aspect of American jurisprudence, one that had not been substantially revisited by the nation's courts until after 9/11.
The Geneva Convention Relative to the Treatment of Prisoners of War betrays a similarly anachronistic tone. Article 26 stipulates, "The use of tobacco shall be permitted." Article 60 requires the detaining power to provide each prisoner ranking below sergeant a monthly pay advance of "eight Swiss francs." Article 74 says prisoners must be offered cut-rate telegrams. These oddities reflect the postwar context in which the Geneva Convention was adopted. This was an era in which wars were seen as massive conflicts between sovereign powers. The drafters had fresh memories of the Germans' treatment of millions of Russian prisoners taken in the early 1940s and the hellish conditions of GIs captured by Japan.
More problematically, Article 118 requires that "prisoners of war shall be released and repatriated without delay after the cessation of active hostilities." Again, such a provision would have made sense in the aftermath of World War II: The German army had been definitively defeated, and few feared that released prisoners from among its ranks would come to the United States in small groups to bomb our office buildings. But, of course, that is exactly what could happen if imprisoned Al-Qaeda captives are released. Indeed, how does one even begin to define what constitutes "the cessation of active hostilities" in the current context? In the legal scheme put in place by the Geneva Conventions, the concept of a never-ending jihad waged by implacable fanatics simply does not compute.
The basic elements of a new legal rubric for terrorism should reflect the discussion above: a loosening of the rules of procedure and standards of proof to reflect the catastrophic damage that may result if a true terrorist were mistakenly released; the explicitly granted right to detain jihadists who have embraced terrorism--even if they have not yet taken part in any attack or specific conspiracy--until they are thought to constitute a threat no longer; the use of military strikes to liquidate known terrorists in foreign countries; and the application of aggressive interrogation methods if such methods are necessary to protect lives.
In an ideal world, a new legal standard for treating terrorism might be implemented internationally. But attitudes toward terrorism differ widely. Muslim states, in particular, would never embrace such an understanding unless it provided exculpatory provisions for terrorists prosecuting what many Muslims regard as legitimate--even heroic--"national resistance" struggles in Israel, Bosnia, Chechnya and so forth. Thus, the project is for now best conceived in domestic terms.
In formulating such a rubric, there are numerous models from which the United States can draw--including the "dangerous offender" laws that exist in many Western nations to keep sexual predators, violent psychotics and other exceptional criminals behind bars even after their sentence expires. Moreover, any civilized nation in which terrorists have long blurred the line between crime and war, including Britain and Israel, will have inevitably developed rules that should inform the new American approach.
I am not suggesting the U.S. government be given carte blanche. Even in the midst of violent struggle, it befits a democracy to grant everyone who comes under its power the bare elements of due process: notice of the relevant charges and an opportunity to be heard. To deny wholly some of the benefits of the social contract--even to suspected terrorists, especially those who are American citizens--comprises a small but identifiable stain on America's reputation as a champion of freedom and representative government. Indeed, investigations conducted by American newspapers suggest many of the detainees are not terrorists, but unlucky peons conscripted by the Taliban or dull-witted hangers-on in the wrong place at the wrong time. Already, the United States has released several dozen such men from Guantanamo.
A reason the Bush Administration has so far denied basic due process rights to the prisoners at Guantanamo is the fear that any concession regarding their status would compromise their interrogation and detention. But if there were an appropriate legal rubric under which these men could be classified, the granting of basic procedural rights would not be problematic. At a minimum, these rights should entail access to a Judge Advocate who would monitor each suspect's status, provide him with an explanation as to why he is being held, make details about individual cases known to family members if warranted, investigate exculpatory evidence and agitate for his release when--for whatever reason--it may be realistically argued that he no longer poses a threat to the United States and its allies.Essay Types: Essay