Chapter Six
International Terrorists and the Law

Many terrorist suspects have been imprisoned for long periods without resolution of their cases in part because it is not clear what to do with them. In a conventional war, captured soldiers are supposed to be treated in accordance with clearly established international law and are to be released when the war is over. The war on terror, however, is unprecedented. Its means and battlefields are unconventional and its duration is uncertain. Consequently, the Bush administration is reluctant to rely solely on existing international law to determine the legal status of suspected terrorists in custody.

One of the most controversial issues of this new war is whether captives are entitled to be treated as POWs, prisoners of war. By law POWs are entitled to a minimum standard of care and certain legal rights that others captured during wartime are not entitled to receive. Another early concern, when an arrest occurs in a foreign country, is whether the accused will be tried there, moved to detention in another country, or brought back to the United States in a formal legal process known as extradition. Other complications revolve around what kind of trial they will receive, and what their punishment should be. In the new war on terror, most high-profile cases have not yet reached trial, so sentencing precedents have yet to be set. However, even without this last piece in play, the legal aspects of the war on terror have already proved to be extraordinarily complicated.

The Rights of POWs

The Geneva Conventions, developed after World War II, outline how those captured in war are to be treated. They make a distinction between captured soldiers and other prisoners. Soldiers acting under orders are considered to have been doing their job and are thus not to be punished for that by their captors. Instead, POWs are to be housed and fed in conditions equal to those of the soldiers of the country that captured them. They are required only to give identifying information about themselves. They are not to be mistreated for the purpose of extracting further information from them. They also cannot be tried for any acts they performed in connection with their legitimate duties as soldiers. They are entitled to visits and services of the International Red Cross, and once the war ends, they are to be released and sent home.

POW status is also extended to certain other combatants. In many parts of the world organized militias function in many respects as separate fighting forces allying themselves with national armies. Generally, a group that wears a uniform or other insignia easily identified at a distance, that takes orders from a clearly defined leadership, and that works on behalf of one or the other side in a conflict, has been considered entitled to POW status, even if its members are not soldiers in a government-sponsored army. So are civilians who fight against an invading army in immediate and direct defense of themselves, their families, and homes.

Those who take up arms for other purposes in a country at war, such as to loot or terrorize, are not considered entitled to the same rights as POWs. Though they have basic human rights, which include not being tortured, they are not entitled to any particular standard of housing or care, and they are also not entitled to visits by the Red Cross or other agencies to monitor their welfare. Interrogation does not have to stop if they refuse to offer information beyond basic identification, and they can continue to be held after hostilities cease.

The Guantánamo Bay Detainees

Most detainees at Guantánamo fall into one of three categories, but only a few neatly fit the Geneva Conventions division into POW and non-POW. The first group are soldiers serving in the army of the Taliban in Afghanistan.

Taliban soldiers were legitimate POWs during wartime, so under the Geneva Conventions, they should be released and sent home once hostilities end, unless sufficient evidence exists that they have committed war crimes. War crimes are acts disallowed for soldiers by international law, such as using hostages as human shields and other crimes such as theft or rape. If evidence of war crimes is brought against a POW, he may be kept in custody until he is brought to trial. However, all those held after the end of hostilities would have the same right as any other defendant to legal counsel, to know the specific charges

against them so that they could prepare a defense, and to a speedy trial. At this point this process is not in effect in any consistent way at Guantánamo Bay.

A second group consists of al-Qaeda members and other terrorists captured in Afghanistan and in other countries. Al-Qaeda members captured outside Afghanistan are not POWs in the sense that Taliban soldiers are, because they were not part of the Afghan war. Their incarceration is legal, just as it is for anyone suspected of a major crime, but they are not legitimately military prisoners and should not be kept in a military prison such as that at Guantánamo Bay. They are entitled to the same treatment as any other prisoner in the American judicial system, including being given an opportunity to talk to lawyers, hear the charges against them, and have a fair trial in a U.S. court. A third group consists of civilians, some of whom should probably not have been sent to Guantánamo Bay in the first place. They include street vendors, taxi drivers, and local farmers who were caught up in the mass arrests accompanying the fall of the Taliban. Others claim they were forced to fight by various means including threats to their families, and some reported being kidnapped and taken to army units. Afghan civilians caught up in mass arrest must be evaluated individually, to determine if there is legitimate reason to suspect them of any crime.

Prisoner Status, Prisoner Fate

Determining the legal status of each detainee is of utmost importance, but it has not yet occurred at Guantánamo Bay in part because precise legal definitions are hard to make. If all detainees were simply classified as POWs in the global war on terror (not just in a limited war in Afghanistan or Iraq), then they could according to the Geneva Conventions be held without charges until the war on terror was declared over, which is unlikely to occur for some time. Prolonged detention would not be a violation of their rights in this case. However, the Bush administration has not wanted to take this position for several reasons. First, POWs may legitimately refuse to answer questions, defeating the purpose of interrogation. As journalist Michael Elliott points out, "The whole point of the detention is to conduct interrogations and thus head off new acts of terrorism."⁴⁶ Second, if the detainees were simply fulfilling their duties as soldiers, even if this included shooting at American troops, they cannot be prosecuted for their acts, which is a goal of the Bush administration. The status of POW even for Taliban soldiers is troubling, despite the fact that under international law it is clearly appropriate. In the words of Harvard law professor Lawrence Tribe, "Releasing captured soldiers who belong to an enemy force committed to the murder of American civilians [would be] suicide."⁴⁷

Part of the problem is that the current war on terrorism does not fit easily into the framework considered by the authors of the Geneva Conventions. The Bush administration has thus felt it necessary to amend some generally accepted international obligations. For example, the Geneva Conventions are very clear that a determination of whether a detainee is or is not a POW must be made promptly, and by an independent and impartial tribunal, which in this case presumably would be an American court. Instead, Secretary of Defense Donald Rumsfeld announced that the Guantánamo Bay detainees did not meet the criteria for POW status, and as "unlawful" or "enemy combatants" they "do not have any rights under the Geneva Conventions."⁴⁸ The terms "unlawful combatant" and "enemy combatant" are not defined under the conventions, which specify that all detainees must fall into one of the convention categories, and also assert that all categories are afforded certain essential rights.

The international legal community not only has rejected the Bush administration's analysis of the situation, but has argued that this matter is not Rumsfeld's or Bush's to decide in the first place. It is up to a judge to decide, who must do so based on the evidence in each detainee's case. There would probably be very little disagreement that a known al-Qaeda member should be kept in custody even if concrete evidence of actual criminal behavior on his part is lacking. However, as Atlantic Monthly writer Stuart Taylor Jr. points out, the problem with the handling of terrorism suspects to date is the Bush administration's "refusal to acknowledge any obligation to produce any evidence at all linking [suspects] to al-Qaeda."⁴⁹

Extradition

Since the end of the military action in Afghanistan, arrests of suspected terrorists have continued around the world, though on a much smaller scale. Some arrestees have been brought to Guantánamo Bay, but others have been transferred to various countries in a process called extradition. Extradition is the means by which a person suspected of a crime is delivered through a formal legal process to the country in which, or against which, the crime was committed. In other words, if a Canadian committed a murder in Canada and was arrested in the United States, he or she would be returned to Canada to face trial and punishment. The United States has signed extradition treaties with more than a hundred countries.

Several factors make extraditing terror suspects to the United States difficult. One is that many countries have abolished the death penalty, and thus are unwilling to hand over terror suspects for trial in the United States if they might face capital punishment. In the case of high-profile terrorists, especially those associated with September 11, the United States is unwilling to rule out the death penalty. If, for example, Osama bin Laden were captured in another country, the U.S. government would be extremely reluctant to agree in advance not to seek the death penalty even if that was the only way to bring him to trial on U.S. soil.

An additional difficulty is that different governments define political crimes differently. A person who carries out a bombing designed to overthrow a repressive government will likely be considered a criminal by that government. Other countries, however, might consider that act legitimate rebellion against tyranny. If countries cannot mutually agree that a crime has been committed, extradition will not occur. This is likely to become an increasingly important issue for the United States. If, for example, an Iraqi attacks an American military base in occupied Iraq, then escapes into another country, it is not clear how that other country might view that action. There is an honorable tradition of fighting the foreign occupation of one's country, and one man's terrorist is another man's freedom fighter. The international unpopularity of American foreign policy regarding the war on terrorism makes it likely that this issue will dominate international discussions in the months and years to come.

Terrorists in the Federal Courts

Regardless of these difficulties, the fact remains that there are many terror suspects in American custody and something must eventually be done about each one. Each suspect will experience at least one of three things: release, trial, or continued detention. Those who are eventually prosecuted for criminal acts will face trial in one of three legal venues: U.S. federal courts, military legal proceedings, or the judicial system of the country where the crime was committed. The latter is unlikely for most detainees, because the United States wants to retain greater control over the process.

Prosecution in a federal court has been selected for all American citizens accused of crimes of terrorism because it

affords the broadest rights during trial and on appeal. John Walker Lindh, a young American who was captured fighting with the Taliban, is serving a twenty-year sentence as a result of a plea bargain in federal court. He pleaded guilty to one count of supplying services to the Taliban and another charge of carrying weapons while fighting against the American-backed Northern Alliance in Afghanistan. Another American citizen, Jose Padilla, is being held in military detention in South Carolina after his arrest in Chicago on a terrorism charge, and Yaser Hamdi, another American citizen, was captured in Afghanistan and is being held in military custody in Virginia. Both are likely to be tried eventually by federal courts.

The federal courts have also been chosen as the appropriate judicial venue for certain noncitizens. Richard Reid, a British citizen, pleaded guilty in late 2002 to eight charges including attempted murder and attempted use of a weapon of mass destruction, in connection with his plan to destroy an American Airlines passenger jet in midflight with explosives concealed in his shoe. In U.S. federal court he was given three life sentences and additional time for other related crimes—a total of 110 years—so as to remove any possibility for future parole. In spring 2003 the case against accused al-Qaeda member Zacarias Moussaoui was being prepared in federal court in

Alexandria, Virginia, on a number of charges relating to his alleged role in the events of September 11.

Military Courts and Tribunals

Military courts are also being considered as an option for other terror suspects. In a military court, the verdict is rendered not by a panel of citizens but by a few military officers. The Bush administration favors this venue for foreign terror suspects because it limits the rights of the accused to legal counsel and to appeals of convictions, and thus can be very quick and efficient. Moreover, such trials can be conducted with a minimum of publicity and limited disclosure of evidence to the defendant.

Even more streamlined is the military tribunal, whose use Bush authorized in November 2001 for the express purpose of trying terrorists. In a tribunal, a panel of officers convenes on the spot to make prompt and usually final decisions in cases such as desertion or war crimes. Tribunals originated as a way of settling matters in the midst of battle, where lengthy trials or convening a full military court is impractical.

Both types of military procedure are of concern to many legal experts. According to reporter Gina Holland, "Under either system, military officers would determine the fate of war crimes suspects. Their authority would even allow imposition of death sentences."⁵⁰ According to Amnesty International, the tribunals authorized by Bush "would flout international fair trial standards and have the power to hand down death sentences with no right of appeal,"⁵¹ by a vote of only two-thirds of the panel. So far, no tribunals have actually been convened to deal with terrorists. Contrary to alarmist predictions, their proceedings are likely to be consistent with international law and with the human rights that are at the core of the American concept of justice.

No Easy Answers

Journalist Stuart Taylor summarizes the analyses of many scholars and other observers in saying, "These are difficult

cases for which our legal system was not designed."⁵² The difficulties begin long before any selection of courtroom is made, and even before an individual is formally charged.

The architects of American and international law did not anticipate a war such as the one declared by the Bush administration. Effectively waging war on terrorists means employing controversial practices that potentially undermine fundamental civil liberties. The challenge lies in ensuring, in the words of journalist Taylor, that "the war against terrorism [does] not become a war against due process of law."⁵³ The United States has always positioned itself as a champion of human rights and the rule of law, and the world is watching to see how it will live up to its own standards in the current situation. A war without borders, without an opposing army, and without a clearly achievable objective by which victory could be declared may be as necessary as any other war, but it presents ethical as well as practical challenges the United States and the rest of the world have only begun to address.