Is the Bush administration’s “war on terrorism” a real war, and thus governed by the rules of armed conflict? Or is it a law-enforcement effort governed by traditional rules of criminal justice?
Two recent rulings by federal appeals courts offered answers to these questions. One involved Jose Padilla, a U.S. citizen who flew from Pakistan to Chicago in May 2002 allegedly to scout targets for a radioactive “dirty” bomb. Rather than prosecute him, President Bush declared him an “enemy combatant” and claimed that the government had the right to hold Padilla without charge or trial until the end of the “war” against terrorism. The U.S. Court of Appeals for the 2nd Circuit, based in New York, ruled that, absent explicit congressional authorization, the president has no such power.
The second case involved several prisoners at the U.S. Naval Base at Guantanamo Bay, Cuba, who sought access to U.S. courts to challenge their detention. The Bush administration claimed that because Guantanamo is leased from Cuba, it should be considered sovereign Cuban territory and thus outside the reach of U.S. courts. The U.S. Court of Appeals for the 9th Circuit, based in San Francisco, rejected this view of Guantanamo, ruling that because the U.S. exercises total control over the base, it is not outside the jurisdiction of U.S. courts.
These kinds of issues stem from the administration’s view that the rules for traditional armed conflict should apply to the war on terrorism. Even though, as the president said, “Our war on terror will be much broader than the battlefields and beachheads of the past. The war will be fought wherever terrorists hide, or run or plan.”
The president wasn’t waxing metaphorical here. To him, the war on terrorism is quite literal, and that is worrisome because governmental powers are much greater in wartime.
In ordinary times, governments are bound by strict rules of law enforcement. For example, police can use lethal force only when facing an imminent threat of death or serious bodily injury. Once a suspect is detained, he must be charged and tried.
In times of war, these rules are supplemented by the more permissive ones of armed conflict. Under “war rules,” an enemy combatant can be shot without warning (unless he is incapacitated, in custody or trying to surrender), regardless of any imminent threat. If a combatant is captured, he can be detained without charge or trial until the end of the conflict.
The existence of war, as in Afghanistan and Iraq, is usually indisputable. But when the scope of war is contested, as in the war on terrorism, there is little law to determine when one set of rules should apply instead of the other. However, the consequences of invoking war rules should make us reluctant to apply them beyond traditional battlefields.
Padilla’s case shows us why. If he were an enemy combatant, as the Bush administration claims, he could have been shot as he stepped off his plane at O’Hare Airport, regardless of any immediate danger he posed. That is what it means to be a combatant in time of war. But summarily killing Padilla was never a real option for the administration, in part because of the public outrage such an action would have sparked. So why, if Padilla is not an enemy combatant for the purpose of being shot, is he an enemy combatant for the purpose of being detained indefinitely?
The Guantanamo case presents a related set of problems. Little information is available about the 660 men and boys currently held on the base, but they seem to include several types of detainees, each with different legal claims.
Some were probably seized by mistake, and they should be released immediately.
Others were Taliban fighters or foreign volunteers integrated into the Taliban’s military. As regular members of Afghanistan’s armed forces, they should have been automatically granted prisoner-of-war status under the Geneva Convention. That would have entitled them to repatriation when the war with the Afghan government ended a year and a half ago.
As for alleged Al Qaeda members captured during the war, they are at least entitled, under the Geneva Convention, to military hearings to determine their status. They would probably fail the more rigorous test for prisoner-of-war status as it applies to irregular forces. Thus, they could be prosecuted for taking up arms against the United States as well as for plotting acts of terrorism. But the Bush administration makes the radical claim that it should be able to detain these men until the end of the “war” against terrorism, whenever that is -- without a trial or a hearing to contest their detention.
Finally, there is the growing number of Al Qaeda suspects picked up far from any recognized battlefield and held at Guantanamo. For example, in October 2001 the Bush administration secured the arrest of six Algerian men in Bosnia. After a three-month investigation, Bosnia’s highest court ordered their release for lack of evidence. The administration then pressured the Bosnian government to hand them over anyway. The six now reside at the naval base.
Guantanamo thus represents a dangerous pattern of U.S. conduct. When the administration doesn’t like the outcome of complying with normal law enforcement rules, it switches to war rules. And even then, it applies only war rules it finds convenient -- not, for example, those governing prisoners of war.
Errors, common enough in ordinary criminal investigations, are all the more likely when the government relies on the murky intelligence that drives many terrorist investigations. The secrecy of these investigations, with little opportunity for public scrutiny, only compounds the problem. If law enforcement rules are used, a mistaken arrest can be rectified at a public trial. But if war rules apply, a suspect could be detained for life or even killed without the government ever being obliged to prove his guilt.
Terrorism is indeed a serious threat. But the Bush administration’s facile and inconsistent invocation of war rules jeopardizes some of our most basic rights. It is high time that the courts stepped in.