- The Washington Times - Tuesday, September 6, 2005

Second of five parts

To date, manifold criticism of the war on terror has largely focused on the Bush administration’s legal policies, and particularly its decision to treat captured al Qaeda and Taliban operatives as unlawful enemy combatants, rather than as prisoners of war (POW) entitled to rights and privileges under the 1949 Geneva Conventions — or simply as criminal defendants entitled to a speedy trial in a civilian court.

The critics have variously claimed that the classification enemy combatant was invented by the United States for use in the war on terror, that captured members of al Qaeda and the Taliban must be treated as civilians or POWs under the Geneva Conventions, and that they are entitled to full blown judicial process — including access to lawyers — to contest their classification and detention. All of these assertions are demonstrably wrong.

In fact, the United States has acted fully within its rights, under the traditional laws and customs of war, to detain captured al Qaeda and Taliban members, without access to a lawyer, and to deny them the rights and privileges to which honorable POWs would be entitled under the Geneva Conventions. Nevertheless, as the war on terror has progressed, and September 11 receded into the past, the critics have escalated their demands on behalf of the detainees.

At first, most calls were for Article 5 hearings — a procedure envisioned under the Geneva Conventions to determine a captive’s status in cases of “doubt,” but actually implemented by only a few signatory states. The administration originally declined to hold such hearings because the very institutional nature of al Qaeda and the Taliban, as organizations of unprivileged belligerents, meant that none of their operatives could qualify for POW status — eliminating any possibility of individualized “doubt.”

In any case, Article 5 proceedings do not provide any sort of an elaborate judicial process, as many critics incorrectly assumed, but only a hearing — without the assistance of a lawyer — before one or more military officers. The provision was never intended to assess the guilt or innocence of an individual, but merely to ensure that erroneous snap judgments were not made about a captured enemy’s status on the battlefield. It is significant that, in requiring captured al Qaeda and Taliban operatives be given an opportunity to prove that they were not associated with either organization, the Supreme Court in Hamdi vs. Rumsfeld (2004), referenced these minimal procedures as an appropriate model.

Unfortunately, within short order, the critics’ demands have further escalated — to demanding that all captured detainees be provided not merely with legal counsel, but with a criminal trial in civilian courts. These claims are based on a simple rejection of there being a “war,” in the sense of a legally cognizable armed conflict, between the United States and al Qaeda — a non-state actor — at all. This position reached its apogee when Sen. John Kerry, during the 2004 presidential campaign, argued that the “war on terror” should be handled as a law-enforcement and diplomatic matter. Unfortunately, this had been the policy of the United States before September 11, and it did not work. Moreover, it is not legally compelled, since the Supreme Court has long recognized (in cases decided during the Civil War and Indian Wars) that the United States can be involved in a war with groups that are not states.

Most recently, the administration’s critics have sought to hold the United States accountable for the actions of its allies in the war on terror — in particular the Iraqi and Afghan governments — even when American forces have had little or nothing to do with the captured individuals — and have objected to the transfers of Guantanamo, Cuba, detainees to the countries of their origin. And, throughout, the critics have sought to leverage the abuses at Abu Ghraib to support their position. They have claimed, without offering a scintilla of proof, that the administration’s refusal to grant POW or civilian status to detainees somehow caused the criminal behavior at the Abu Ghraib prison, even though report after report — and especially the conclusions of the independent Schlesinger Commission — stated that the causes were, in fact, a combination of overcrowding, the actions of the individual perpetrators, as well as failures by their immediate superiors.

Meanwhile, most critics rarely bother acknowledging such manifestly positive elements of U.S. policy as the speedy and vigorous prosecutions of individuals guilty of detainee abuses, or its humane decision to forego prosecuting most of the captured unlawful enemy combatants.

This forbearance is all the more significant, since those individuals could have been, upon conviction, subjected to very harsh penalties for their unprivileged belligerency, up to and including the death penalty. Indeed, the “American Taliban,” John Walker Lindh, received a 20-year sentence, while many similarly situated Talibs and al Qaedas have been set free. Most importantly, however protean their arguments made since September 11, what the critics of administration policy have failed to offer was a detailed alternative that would be both legally defensible and fully address the relevant national security imperatives.

Part 1: The long war

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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