- The Washington Times - Thursday, September 8, 2005

Fourth of five parts.

In considering changes to the current system for handling captured al Qaeda and Taliban operatives, we should keep in mind that most critics of American policy, at home and abroad, will not be satisfied with any system that does not treat captured terrorists as honorable POWs, or as ordinary criminal defendants in the civilian justice system. In particular, the nongovernmental organizations that have been most vocal in their criticisms have an agenda that is far broader than merely protecting individuals from potentially unjust imprisonment.

For nearly 30 years, despite consistent U.S. opposition, these activists have sought to revolutionize the laws of war by granting privileged status to guerrilla fighters (whose “national liberation” causes they generally favored), and by remodeling the rules of war to match domestic policing norms.

There are many examples of this strategy. One is the insistence that a minimum level of force be used, directed at incapacitating the opponent, even on the battlefield. This, of course, is a policing standard, not a military one. The laws of war permit the use of force at whatever level necessary to achieve victory, taking into account critical rules of distinction (targeting combatants only) and proportionality, which requires that incidental damage to civilians not be excessive in relation to the military advantage sought. Similarly, demands — or expectations — that there will be no collateral damage to civilians as a result of combat suggests policing, rather than war-fighting, standards. Treating unlawful combatants as criminal defendants fits into the same paradigm.

Unfortunately, although the effort to remake the laws of war is often defended on “humanitarian” grounds, the standards being promoted are unrealistic and markedly favor irregular and unlawful fighters who pose the greatest threat to the civilian population. In fact, the limitations imposed on the use of force, and the treatment of suspects, by domestic police organizations, far from reflecting some universally applicable humanitarian imperatives, arose only because the state has an effective monopoly of military force, and that the damage caused by an individual perpetrator, or group of perpetrators, is comparatively limited. This, of course, is not the case when fighting a foreign enemy, and especially a transnational group like al Qaeda, whose goals are not pecuniary but geopolitical.

Moreover, there are numerous practical difficulties in applying a law enforcement paradigm to the war on terror. For example, civilian courts assume and expect that the prosecution will be able to obtain sufficient evidence against an accused in a context where that evidence can be collected, controlled and validated based on a “chain of custody.” This is impossible when the “crime scene” is a foreign battlefield, which may include hundreds of square miles, where American forces are engaged in ongoing combat operations. Even eyewitness accounts by the capturing U.S. personnel can be successfully challenged by defense lawyers, educating the jury about fear, confusion and the fog of war that permeates all combat. Meanwhile, bringing military personnel back to the United States to act as witnesses would disrupt ongoing operations, all make the war more difficult — if not impossible — to win. Similarly, the constitutional requirement of a public trial, enjoyed in near-absolute form by civilians, and substantially even by defendants in regularly-constituted military courts martial, would in many cases force the government to choose between disclosing highly confidential intelligence information, thereby jeopardizing its sources and methods of information gathering, or abandoning the prosecution.

It is for these very reasons, reinforced by a compelling imperative to retain visible distinctions in treatment between captured lawful combatants, who are entitled to be tried by courts martial if charged with any offenses, and unlawful combatants, that the United States ought to preserve a distinctive legal paradigm, comprised of status review tribunals and military commissions for unprivileged belligerents. If a special court is created to try them, it must operate in essentially the same manner as a military commission. Military justice balances the defendant’s rights against the very unique circumstances of armed conflict. Such tribunals are generally conducted in public, but they may also hold closed sessions when sensitive evidence is introduced, thus protecting the secrets often so necessary to fighting and winning a war. The rules of evidence overall are relaxed, taking into account the very different circumstances surrounding a criminal arrest and capture on or near a battlefield. At the same time, overall burdens of proof — beyond a reasonable doubt — are similar to those required in civilian courts.

None of this violates either Anglo-American legal tradition in general, or the U.S. Constitution in particular. Since the Constitution was drafted and ratified, and reaching back to the War for Independence itself, the United States has utilized military tribunals to try captured enemy combatants — including its own citizens. The critical distinction here is between combatants and civilians. It is, in fact, the treatment of individuals who support al Qaeda and its allies, but who are not themselves fighters or operatives, which presents the most difficult legal and policy issues in determining how to handle captives in a long war on terror.

Part III: How the system works

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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