- The Washington Times - Monday, September 5, 2005

At nearly four years, the war on terror is not an especially long conflict. The Vietnam War lasted eight years. If hostilities with al Qaeda and its allies ended tomorrow, the war on terror would be about average — comparable in duration to the First World War or the American Civil War. Nevertheless, it certainly is possible that this conflict will continue — at some level — years into the future. Al Qaeda appears to be transforming itself from a transnational organization, which once openly ran training camps in Afghanistan and elsewhere, into a series of more or less independent cells, which include Western-based recruits, who are trained through the Internet and may never even set foot in the Middle East. Although these cells will be inspired by their Jihadist brethren in Iraq and Afghanistan, and may even receive some assistance from that quarter, they are likely to operate essentially on their own. Some would argue that this already has happened, as evidenced by the recent attacks in London. In any case, the prospect of a more or less indefinite conflict raises the question of how captured terrorists — both combatants and non-combatants — are to be treated on a long-term basis.

To date, of course, the United States has handled captured al Qaeda and Taliban fighters in accordance with the traditional laws of war. The President has correctly classified them as unlawful or unprivileged enemy combatants, who do not merit prisoner of war (POW) status under the 1949 Geneva Conventions. Like customary international law, those treaties limit POW rights to individuals associated with a group that has a discernable command structure, recognizable uniforms, carries its arms openly, and conducts operations in accordance with the laws of war. Neither al Qaeda nor the Taliban meet these requirements, and their members are not entitled to be treated as POWs. Like all captured combatants, however, the laws of war permit their detention — without a criminal trial or other judicial process — until the fighting is over.

Although this form of “indefinite” detention has been criticized by civil libertarians on both the right and the left, it is a benefit, not a punishment. The right to hold captured enemy combatants is the quid pro quo for honoring a corresponding obligation to accept surrender and grant quarter, rather than simply killing defeated opponents on the battlefield. Along with a prohibition against purposefully targeting civilians, this rule was the most important humanitarian advance, over the past 400 hundred years, in the legal rules governing armed conflict. Its application, however, may well mean that captured enemies will remain locked-up, without “due process” as that term is understood in the civilian justice system, for many years.

As it happens, for the past 200 hundred years or so, this period of detention has lasted on average six years. Of course, Americans were held in Vietnam for nearly a decade — some U.S. Vietnam and Korean POWs have never been properly accounted for — and there have been other instances where detainees were held for much longer. The United States, however, has never faced a war that went on for decades. Indeed, the last such conflict involving Western countries was the 1793-1815 French Revolutionary/Napoleonic Wars. At that time, the detention of enemy combatants was ameliorated by a brief peace, 1802-04, when prisoners were freed, as well as a system of prisoner exchanges and customary honor-based “parole” for officers.

Unfortunately, these traditional expedients are not easily applied to the war on terror. The United States has, in fact, attempted a variation of parole — permitting several score detainees to return to their own countries based on promises not to resume hostilities. In some cases, this appears to have been successful — so far. In others, it has failed. At least a dozen former detainees have been recaptured, or killed, fighting against American forces. Meanwhile, negotiations are currently underway to transfer over 70 percent of all Guantanamo detainees to Afghanistan, Saudi Arabia and Yemen, where most would remain incarcerated.

If these talks are successful, over 100 captives, characterized by the Pentagon as high-risk, would still be left at Guantanamo Bay. While not, as many critics of American policy have falsely posited, in a legal “limbo,” they would nevertheless remain subject to a set of rules that may increasingly appear harsh as time goes on. Therefore, it clearly is time to begin discussing alternatives which would guarantee a higher level of due process for captured unprivileged combatants who may well spend substantial portions of their lives in detention.

Similarly, procedures must be developed that will provide non-combatant terror supporters with a fair criminal trial while, at the same time, minimizing the potential damage to national security that often accompanies traditional judicial proceedings, where in the course of proving defendant’s guilt, sensitive intelligence and defense information is revealed.

Part II: Engaging the critics

David B. Rivkin Jr. and Lee A. Casey are partners in the Washington office of Baker & Hostetler LLP. They served in the Justice Department under Presidents Reagan and George H.W. Bush.

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