Monday, July 10, 2006

Part one in a four-part series of essays.

The Supreme Court’s recent ruling in Hamdan v. Rumsfeld — that the military commissions established by President Bush to try captured al Qaeda and Taliban operatives are “illegal” — has outraged the president’s supporters and elated his critics. More appropriate emotions would be, respectively, irritation and trepidation. Although Hamdan does, indeed, send the administration back to the drawing board on military commissions (irritating to be sure), it will not be the last word. That word will now belong to Congress, and this should worry the president’s critics — at least those who had expected the court’s decision to benefit the captured al Qaeda and Taliban fighters held at Guantanamo Bay.

Many Bush administration opponents had, in fact, hoped that the Supreme Court would use the Hamdan case to reject the whole notion of a “war” on terror and the corresponding legal framework, forcing the closure of the Guantanamo Bay detention facilities and requiring treatment of transnational Islamist terror as a criminal law-enforcement problem. They were disappointed.

Like its 2004 Hamdi v. Rumsfeld decision, the Supreme Court’s Hamdan ruling affirms that the United States is engaged in a legally cognizable armed conflict to which the laws of war apply. It may hold captured al Qaeda and Taliban operatives throughout that conflict, without granting them a criminal trial, and is also entitled to try them in the military justice system — including by military commission.

To be sure, as a result of the court’s ruling, the rules and procedures in military commissions must be the same as those in regular courts martial — unless the president can show that this would not be “practicable.” The other option is to seek additional legislation, amending the Uniform Code of Military Justice to eliminate this uniformity requirement. In fact, the court’s Hamdan ruling presents Congress with an excellent opportunity to finally settle many of the war on terror legal and policy disputes that have simmered since 2001.

This is especially the case with respect to the classification of unlawful enemy combatants, into which fall al Qaeda and its various allied groups, including the Taliban. The Bush administration correctly invoked this traditional classification shortly after the September 11 attacks.

To date, however, the legal basis of this decision has been longstanding U.S. practice (actually dating to the war for independence), customary international law, various treaties (including the 1949 Geneva Conventions) and a series of Supreme Court cases mostly from the World War II era. There is no federal statute that defines comprehensively unlawful combatants or their legal rights and liabilities. Congress can now enact such provisions, and, in the process, make clear to the world why these individuals cannot and should not be treated as honorable prisoners of war.

In the past, of course, this would have been unnecessary, and this explains why Congress never before formally dealt with this issue. Before the 1970s, the category of unlawful enemy combatant was widely understood and accepted as a critical part of the laws of war. Such individuals do not fight on behalf of sovereign states, have no regular and transparent command structure, do not wear uniforms, do not carry their arms openly and do not obey the laws of war. As a result, they present a particularly dangerous threat to civil society in general and the civilian population in particular.

To deter this type of illegitimate, asymmetric warfare, unlawful combatants have historically been denied the rights of prisoners of war and could be severely punished after the most abbreviated of proceedings. By the mid-20th century, custom entitled them to certain minimum due process protections — notice of the charges, an opportunity to make a defense (not necessarily to a lawyer) and to a hearing, but little else.

In the 1970s, however, “progressive” activists (including the International Committee of the Red Cross) attempted to achieve a new lawful or “privileged” status for unlawful combatants. Motivations varied from open sympathy with the national liberation guerrilla forces who would most benefit from a change in the laws to a quixotic hope that — having obtained a fundamental benefit from the laws of war — unlawful combatants would themselves begin to comply. Of course, this did not happen, and irregular warfare has simply become ever more savage in the years since.

Fortunately for the United States, the Reagan administration definitively rejected these efforts — codified in Protocol I Additional to the 1949 Geneva Conventions. Congress can now reaffirm the legal rules applicable to unlawful combatants, defining in detail how individuals who make war without legal authority and who don’t play by the rules should be treated.

In fact, a genuine policy debate about why retaining the distinctions between lawful and unlawful combatants is much needed. Most discourse on this issue since September 11 has been sterilely legalistic — trying to show why the Bush administration has, or has not, violated the law. It’s time to talk about principle — and that should worry the president’s opponents.

Part II

Messrs. Rivkin & Casey are partners in the Washington, D.C., office of Baker & Hostetler LLP and served in the U.S. Justice Department under Presidents Reagan and George H.W. Bush. They dedicate this series of essays to the beloved memory of Perseus Rivkin.

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