- The Washington Times - Wednesday, March 27, 2002

Cue the outrage. The Bush administration has said it might continue to hold Guantanamo detainees even if they are acquitted of specific offenses by military tribunals.

An official with the National Association of Criminal Defense Lawyers (a k a the People Who Brought Us the O.J. Acquittal) has denounced this possibility as worthy of Adolf Hitler and Josef Stalin.

This is a heavy-breathing charge, especially since the only mistreatment anyone can point to in the case of the Guantanamo detainees is that they are being exposed to the harsh winter conditions of Cuba.

But if most critics of the administration won't go as far as invoking Stalin, there will be plenty of complaints from the European allies and liberal human-rights activists that President Bush is embracing that old prosecutorial maxim from "Alice in Wonderland": "Sentence first, trial later."

To understand why it isn't, it's important to remember what exactly the detainees are: belligerents, parties to a war. They aren't the everyday muggers and thieves that the redoubtable members of the NACDL routinely attempt to get off on procedural technicalities.

Their confinement in Guantanamo isn't a punishment, but a preventive detention of the sort that occurs in any war when an enemy soldier is captured.

What makes the Guantanamo Bay, Cuba, detainees different, of course, is that they aren't everyday soldiers either. If they were, they would be POWs, entitled to all the privileges afforded under the Geneva Convention regular pay, comfortable accommodations, shaving gear, back rubs and massages (well, not quite, but you get the point).

In fact, they are unlawful combatants. Whether they are al Qaeda or Taliban, they belong to organizations that don't respect the laws of war and flunk the other tests for a legitimate army (wearing uniforms, having a discernible chain of command, etc.).

This means their rights under international law are basically nil, essentially rights to humane treatment and a swift trial before they go to see the firing squad.

This has always been the case with unlawful belligerents. George Washington gave a British spy out of uniform captured behind American lines an ad hoc trial lasting all of three hours, with execution immediately following.

When President Bush determined a few weeks ago that the Guantanamo detainees would be considered unlawful belligerents, the Europeans screamed how harsh, how nasty, how mean. But maintaining this distinction between legitimate soldiering and banditry is actually deeply humane; it is essential to civilized warfare.

International law has set rules for proper warfare in order to tame it, to try to keep it within some bounds of reason. One of the cardinal rules is that civilians can't be deliberately targeted, and care should be taken to avoid hitting them even accidentally.

But this requires uniforms to make it easier to discriminate between combatants and innocents. The war in Afghanistan would have been much cleaner, with much fewer civilian casualties, if the Taliban and al Qaeda had simply suited up like decent soldiers.

So, what is to be done with them now?

The primary thing is that they should be confined as long as the war continues, which could be quite a long time. Liberal activists will complain that this "indefinite" detention is a denial of due process and other rights.

But there's no reason to give the detainees better treatment than regular POWs, who are always held until the end of the conflict (even the guys in "Hogan's Heroes" had to engage in idle chitchat with the Germans while waiting for the war to actually end).

This is why it is conceivable that a detainee might be tried on a specific charge (say, involvement in the Mazar-e Sharif prisoner riot that led to the murder of a CIA officer), get acquitted, then still be held for years: acquitted or not, he is still an enemy soldier during a time of war.

And this is the important point. Except in very special cases, the detainees won't be tried for anything they did, but for what they are i.e. unlawful combatants. International lawyers refer to it as a "status offense."

The detainees will be tried before military tribunals for, essentially, their membership in the Taliban and al Qaeda. Just belonging to these groups murder gangs devoted to killing Americans is the crime.

We shouldn't be any less stringent about it than George Washington. Membership in these criminal conspiracies should be a capital offense.

They should all be sentenced to die (in keeping with the strict dictates of justice), then the sentences commuted for all but the top leaders (in keeping with the dictates of mercy). The smaller fish could be released, and the middle ranks held a long time, until they are too creaky to enjoy jihad.

The defense lawyers won't like it, of course, but they don't like it when the authorities bust common criminals. Why should their attitude be any different when it comes to war criminals?


Rich Lowry is a nationally syndicated columnist.


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