This is the fourth in a weeklong series on the law and war on terrorism.
Although the U.S. right to captureandhold,as enemycombatants,al Qaeda and Taliban operatives is well-established under the laws of war, concerns have been raised that individuals, not associated with al Qaeda or its allies, have been detained with no means of redress. Leaving aside the dark mutterings of conspiracy theorists, however, no one has yet provided a plausible reason why the United States would intentionally hold dozens, or hundreds, of men that it knows are not al Qaeda or Taliban members — feeding, clothing and sheltering them at the taxpayers’ expense. The potential for honest mistakes does, of course, exist, and this danger is especially acute in a conflict where the enemy does not wear uniforms and operate in the open.
That fact, however, undercuts neither the legality nor practical benefits of invoking the laws of war, or treating captured al Qaeda and Taliban members as enemy combatants who are not entitled to a criminal trial, unless and until some criminal sanction is sought against them. Their detention is not a penal sanction; it is the fortune of war. The purpose of detention is twofold: to remove captives from active service and to obtain information regarding future attacks. Seizing civilians achieves neither goal and wastes scarce resources. Accordingly, the United States has every incentive to identify accurately enemy combatants.
Moreover, even assuming that the military would hold non-combatants simply to avoid admitting a mistake, this soon would become evident. Like all government institutions, the military is composed of different interests and personalities. A “cover-up” of this proportion would require the cooperation (at least by silence) of dozens of people, who understand that the consequences of wronging are far more serious for them, being subject to the Uniform Code of Military Justice, than for ordinary bureaucrats. If the past 30 years of American politics has taught anything, it is that such secrets cannot be kept, and cover-ups invariably unravel — sooner rather than later.
This, of course, leaves the issue of honest mistakes. Some have suggested that “Article 5” status hearings be provided for the detainees, pursuant to the 1949 Geneva Conventions. These might well help identify individuals detained in error. But, there are drawbacks. First, it would give most detainees a benefit to which they are not entitled, since the Geneva Convention does not apply to al Qaeda or its members. (The treaty’s application to the Taliban is arguable, since Afghanistan had ratified it before that group took power. But it is by no means clear because the Taliban repudiated the laws of war.) Given the threat posed by groups like al Qaeda, insisting on strict compliance with the laws of war and maintaining meaningful distinctions between lawful and unlawful combatants is imperative.
Moreover, even assuming Article 5 is applicable, its requirements are unclear. It was originally adopted to ensure that battlefield commanders did not determine for themselves who was to be considered an unlawful combatant. Such decisions are to be made by a “qualified tribunal.” That term is not defined, and there is no guiding precedent, since the provision itself has rarely, if ever and only in cases of serious doubt, been applied by Geneva parties. From the U.S. perspective, this creates a good deal of flexibility. It also means, however, that any system short of a full-blown criminal trial will not silence all of its critics.
Such trials, of course, are a possibility — but hardly in the detainees’ interests. Today, they are held “indefinitely,” but must be released at war’s end. If they are charged and tried as war criminals, as they could be, then their chance of being released at the close of hostilities is zero. It is difficult to conceive of any president offering executive clemency to convicted al Qaedas and Talibs. Moreover, the acts that rendered them unprivileged combatants violate the laws of war and carry penalties up to and including death. In other words, the stakes are high.
To some extent, it is the uncertainty of when the war will end that bothers people. Some assume that the war will never end — either because the government wants to keep it going, or because the terrorists will, in the end, win. The war on terror, however, is no more or less “indefinite” than any other conflict. In August 1914, for example, both the Allies and Central Powers assumed the war would be over by Christmas. Four years later, shortly before Germany asked for an armistice, the United States was training and equipping forces on the assumption that another year would pass before the Allies could deliver a final blow. Both assumptions were wrong. In 1945, most American policy-makers were assuming that it would take another year, at least, to subdue Japan.
To date, however, the war on terror has lasted a little more than two years, as opposed to seven years for the Vietnam War, five-and-a-half for World War II, and four for World War I and the Civil War. This listing, of course, could be expanded. In other words, concerns that this is a war without end are, to say the least, premature.
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.
