- The Washington Times - Wednesday, February 25, 2004

Over the past two weeks, the Bush administration has advanced a detailed and compelling justification for the continuing detention of captured al Qaeda and Taliban operatives in the U.S. naval base at Guantanamo Bay, Cuba.

Beginning with a Feb. 13 speech by Defense Secretary Donald Rumsfeld, the administration has articulated in detail both the legal basis for detaining those persons without trial and the practical safeguards that have been adopted to ensure that only genuine enemy combatants have been held at Guantanamo.

It also has agreed to release a number of detainees to their home governments, including Britain, Denmark and Spain, and, significantly, confirmed that at least four of the 80 detainees released over the past two years have broken their parole and returned to the fighting.

The legal basis, as we have argued in these pages before, is utterly straightforward. September 11 was an act of war. The United States is engaged in an armed conflict with al Qaeda and its allies, including the Taliban militia. Under the laws of war, it may attack, capture and hold al Qaeda and Taliban members as “enemy combatants” until the conflict is over — regardless of how long that might be. (Al Qaeda, of course, could end all of this tomorrow by giving up.)

The detainees are not entitled to legal counsel or to trial because they are not held as criminal defendants, although each does have potential criminal exposure. When and if individual detainees are charged with criminal offenses, they will be entitled to counsel and to a trial before a military commission.

Such bodies have traditionally been used by the United States and other powers, including Great Britain, to adjudicate such cases. They are not an “invention,” and they provide all of the process that is due under the applicable military law. The captured al Qaedas and Talibs are not civilians.

The additional measures instituted to guard against mistakes are elaborate. Individuals are screened on at least three separate occasions: at the time of capture, at a central processing center overseas and again when they arrive in Guantanamo Bay. This screening is accomplished by both civilian and military officials, including officials at the highest levels of government. Furthermore, going forward, each detainee will have his case periodically reviewed by a three-member board. Both the detainee and the government of his home country will be permitted to participate in this hearing.

Detainees who no longer present a threat — that is, who are not considered likely to rejoin the fight against the United States or its allies — may be released before the conflict ends.

All of this provides far more process than is required by the traditional laws of war in such cases and more than would be required by the Geneva Prisoner of War Convention, if that treaty applied here. It does not, since neither al Qaeda nor the Taliban meet the minimal conditions for “privileged” or “lawful” combatant status. Nevertheless, the screening process afforded by the United States is more than sufficient to meet the Geneva Article V requirement that a detainee’s status be determined by a “competent tribunal” in cases of doubt.

The treaty does not define either the nature or composition of such a tribunal and certainly does not require — or contemplate — anything approaching a civilian criminal trial. Its purpose was simply to ensure that such decisions were not made by junior officers in the field, and the consideration of each detainee’s case by a series of senior officers and officials is more than sufficient.

It is now time for the administration’s critics to come clean. They should either concede that both law and reason have been fully satisfied with respect to Guantanamo, or openly admit that they simply do not accept that September 11 and al Qaeda’s numerous other attacks on Americans and American interests overseas qualified as acts of war.

The bottom line is that, if the laws of war apply, then the administration has acted legally and appropriately. Only if the laws of war do not apply, if September 11 was simply a spike in the New York City crime rate, has it acted improperly. With an election fast approaching, the position of the president and his critics — including likely Democratic nominee John Kerry, who already has described the war on terror as a criminal enforcement matter — should be made clear. The voters deserve no less.

Finally, for those who continue to complain that “innocents” may be held at Guantanamo Bay, it is time to acknowledge the plain truth. Innocents suffer in war. On September 11, al Qaeda gave more than 3,000 innocents the choice of burning to death or committing suicide by leaping to the pavement a hundred stories below. Some, in fact, did not even have that choice.

Innocents suffer in war. There certainly remains a chance that there are innocents held at Guantanamo Bay. The United States has adopted searching procedures to ensure that this is not the case. It is not required to do more.

David B. Rivkin Jr. and Lee A. Casey are partners in the Washington office of Baker & Hostetler LLP and served in the Reagan and Bush 41 administrations.

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