Thursday, January 29, 2004

This is the final installment of the weeklong series on the law and the war on terrorism.

From the beginning, the Bush administration regarded the events of September 11 as an act of war. It immediately sought authorization from Congress for a military response and invoked NATO’s mutual assistance obligations for the first time in that organization’s history. Within a matter of weeks, U.S. and allied forces deployed against al Qaeda and its Taliban supporters in Afghanistan and elsewhere in the Middle East. Today, American and allied forces remain engaged in that conflict. There have been stunning successes, and a few setbacks, but no one yet claims to see light at the end of the tunnel. Even the administration has not provided a definition of victory.

More than anything else, this uncertainty appears to have prompted increasing demands that detained al Qaeda and Taliban members be treated as criminal defendants, and be speedily tried or released. There is little doubt that the administration’s reluctance, at least in its rhetoric, to clearly identify the enemy as al Qaeda and its allies, rather than “terror” in general, has fueled this phenomenon. It has even been suggested that the war on terror is more like the “war of drugs” or the “war on crime” than a real shooting war.

In fact, the United States is engaged in a shooting war. The enemy was defined, at the administration’s request, in the Sept. 18, 2001, congressional use of force authorization against “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001.” To date, that has included al Qaeda, the Taliban and a handful of groups associated with them. Despite the rhetoric, it does not include most terror organizations.

Similarly, the war will have an end — when the belligerents have achieved their goals, or can fight no longer. In that regard, this war is no more or less “indefinite” than any other conflict. Charges that the United States has embarked on an endless war on terror as a means of increasing its power at home and abroad are premature — at a minimum. In fact, despite the rhetoric, the administration has been legally quite cautious, obtaining, for example, a separate congressional authorization for military operations against Iraq. Also premature are suggestions that some new legal framework, such as special terrorism courts, be established to deal with the detainees. To the extent that they are to be punished criminally at all, the detainees are properly subject to military commissions and will be entitled to various due process guarantees in that context. Traditionally, the United States has maintained a strong distinction between military and civilian justice. Establishing a series of civilian courts, with military-style rules of evidence or procedure, would not only be constitutionally dubious, but would erode a distinction that has served the republic well.

There is also a compelling policy reason to continue to draw upon, in dealing with al Qaeda and Taliban combatants, the military justice system. Unlawful combatants, who have renounced the laws of war, abandoned all normative restraints and deliberately targeted civilians, pose a mortal threat to the United States and its allies. Granting such individuals more rights than they are otherwise entitled to would send precisely the wrong message — both to our friends and our enemies alike.

At the same time, there is no question that the administration could do better in explaining the legal and policy framework supporting its treatment of the detainees. In addition, it should seriously consider at least three specific reforms. First, a system whereby each detainee’s case is reviewed by a panel of officers — otherwise uninvolved in detainee-related matters — would be one means of vetting claims of “innocence,” without creating a full-blown adversarial process. Second, although it is generally better to postpone “war crimes” trials until after a conflict is over (when passions have cooled and better evidence may be available), there is a good argument for commencing the trial of at least some detainees now. Given the nature of the enemy, it is unclear whether new or more probative evidence will ultimately be available in any case. Moreover, commencement of the military commission process, making it as publicandaccessibleas circumstances permit, would prove that the system does indeed provide due process of law. Finally, individuals convicted by these commissions should be brought to the United States before their sentences are executed. This will permit judicial review of the process, diffusing criticisms that the Guantanamo-held detainees are held beyond the law’s reach.

Overall, there is no doubt that the war on terror has raised many difficult legal and policy issues, and that individual liberty has suffered in the cause of collective security. This, however, is always the case in war. A balance must be struck — as suggestedbyBenjamin Franklin’s oft-misquoted remark about those eschewing liberty for safety deserving neither. In fact, he said that those who “give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” The trick is in deciding what is essential, and what is temporary. So far, the administration has done an entirely credible job of making that distinction.

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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