“What we are seeing today,” said William Barr last week before the Senate Judiciary Committee, “is an extreme … effort to take the judicial rules and standards applicable in the domestic law enforcement context and extend them to the fighting of wars.” Mr. Barr is referring to the current effort to treat Guantanamo detainees like American criminals, with full access to our courts. We agree with the former attorney general that “nothing could be more farcical, or more dangerous.”
If the critics are right, and detained terrorists have an inalienable right to access U.S. courts, then they have created a new standard — one which has no precedent in the Geneva Conventions, the Constitution or U.S. history. Even worse, as Mr. Barr suggested, it is a standard that would effectively make victory in the war on terror impossible.
“For every platoon of combat troops, the United States would have to field three platoons of lawyers, investigators and paralegals,” Mr. Barr said. “Such a result would inject legal uncertainty into our military operations, divert resources from winning the war into demonstrating the individual ‘fault’ of persons confronted in the field of battle.”
The critics, who are currently enjoying an increase in support from the right, of course couch their radical stance in terms of due process, as if what they are asking is the most ordinary thing in the world. And indeed, for American citizens it is. But never has the United States granted detained combatants this right. During World War II, for instance, the United States held hundreds of thousands of prisoners of war without charge, without legal representation and without a means to contest their designation as legal combatants taken on the battlefield.
This history conforms with the Geneva Conventions, as long as the detainee qualified as a legal combatant. If not, a detainee’s rights as defined in the Geneva Conventions are considerably less. The reasons for this are simple. Article 4 of the convention on treatment of prisoners of war identifies a legal combatant as someone who fights under a recognized state which adheres to the Geneva Conventions; wears a fixed insignia or uniform; carries his arms openly; and conducts operations in accordance with the laws of war — which rules out terrorists.
As the administration rightly determined after the invasion of Afghanistan, Taliban and al Qaeda terrorists fail to meet any of these standards. Therefore, they are illegal combatants and not protected as prisoners of war in the Geneva Conventions. A soldier is different from a terrorist because a soldier is supposed to follow certain rules; terrorists are not — and the Geneva Conventions acknowledge this difference. If they did not, then there would be no incentive for soldiers to adhere to Article 4.
Even if, for the sake of argument, we accepted that terrorists are POWs, they would still not be entitled to adjudicate their case before a U.S. court. There is nothing in the Geneva Conventions that requires or even considers such an option. The conventions do say that a POW is subject to the laws of the “Detaining Power” — yet the Constitution does not say anything about allowing combatants access to U.S. courts.
Last year the Supreme Court acknowledged that this war is different, and that determining a combatant, legal or otherwise, is not as simple as it used to be. Lower courts are divided on how to interpret this decision, but the fact is that every Guantanamo detainee has had a chance to contest his detention as a combatant before a military tribunal. It’s enough for now just to note that this is beyond what the Geneva Conventions require for a POW.
“Not good enough,” insist the critics, who want nothing less than full constitutional rights bestowed on foreign enemies of the United States. The Geneva Conventions do not acknowledge such a right, the Constitution does not acknowledge such a right, so why would this administration acknowledge such a right?