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.

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.

On February 13, 2004, Secretary of Defense Donald Rumsfeld announced that each Guantanamo prisoner would eventually receive an "annual review" to assess his status. But such an informal process, essentially an extension of the military's current ad hoc, discretionary arrangement, would be insufficient. Rather, the United States should provide terror suspects with access to a new, specially constituted tribunal staffed by jurists with the expertise and security clearance to handle terrorism cases. Unlike the "terrorism court" that has been proposed by various commentators since 9/11, this tribunal would not judge the guilt or innocence of those brought before it. That is because, as I have argued, the concept of guilt and innocence does not properly apply to a suspected terrorist (who may have done nothing criminal, but who nonetheless can be shown to possess a generalized intent to perform acts of terror). Rather, the tribunal's sole function would be to pass judgment on a suspect's proper classification--criminal, soldier or terrorist. The proceedings would be adversarial, with a designated Judge Advocate providing zealous representation on behalf of the suspect in question.

In other words, the body would have a somewhat similar function to that of the "competent tribunal" for the determination of a prisoner's status required under Article 5 of the Third Geneva Convention. But unlike an Article 5 tribunal, it would be informed by the intent and character of the suspect, not by the rigid list of indicia stipulated by the Convention's authors half a century ago. Thus, a U.S. terrorism tribunal would be free to weigh such factors as where and how the suspect was caught, whether he has attended terrorist training camps, whether he has pledged fealty to a terrorist group and so forth.

If the tribunal were to find that the suspect is a criminal or lawful combatant soldier, then the executive branch would be obliged to treat him as such, with all the associated rights dictated by the Constitution or the various Geneva Conventions, as the case may be. But if a fair showing can be made that a man is a bona fide terror suspect--that is, one who is disposed to premeditated, politically motivated violence against noncombatant targets--the government should be given wide discretion to interrogate and detain as it sees fit.

The events of September 11, 2001, came as a great shock to the United States and the world. In its immediate aftermath, the government of the United States did the right thing by putting legal niceties to one side and pursuing the war against terrorism full-bore. But two and a half years have now elapsed since that awful event, and we have had an opportunity to see how poorly suited our legal institutions are in regard to prosecuting this new conflict. It is high time we overhaul them. The War on Terror might remain unwinable without it.