“We are at war against al Qaeda,” President Obama said last month, giving lip service, and not for the first time, to a notion the Framers would have found absurd: that an undeclared conflict with a stateless group boasting no army and only a few thousand adherents was a war.
No doubt he signed on to this misuse of the term “war” because to fail to do so would have left him politically exposed to attacks from the right. But most likely he also misused the term because, increasingly, “war” looks like the only legal justification for potentially lifelong detention of around 50 Guantanamo detainees, deemed especially dangerous, while denying them a court trial or even a military commission hearing.
The trouble is, this justification may not justify enough and, at the same time, much too much.
For the duration
We have most of the Bush administration memos now; we know what theories the Bush lawyers tried to rely upon for open-ended detention before the Supreme Court intervened. We don’t know much about the Obama administration’s justifications. However, we are safe in assuming that, just like the Bush theorists, Obama’s team reasons that combatants captured in a war can be detained “for the duration.”
There are some problems with this neat formulation, however, when applied in a situation that bears almost none of the traditional hallmarks of war.
Because there will be no surrenders, peace treaties or armistices, we know already that we shall lack all the signal events that ordinarily enable us to distinguish when a war comes to an end. (Under the law of war, once a war ends combatants must be promptly repatriated.)
And if, as seems likely, this “war” will last a lifetime, then there must be some recognition of the right of the individual combatant detainee unilaterally to cease being a combatant. Otherwise we are likely to be detaining large numbers of people for a status they once occupied but in no meaningful way continue to do.
The Supreme Court held in Hamdi v. Rumsfeld (2004) that detainees must have a neutral forum before which to challenge the government’s original classification of them as combatants. It would seem that the same should be done for those who claim not to be combatants any longer. And indeed, standing orders of the Department of Defense dating to 2006 apparently call for such cases to be “reviewed periodically by a competent authority.”
So, if we insist on buying into the war rationale, we need a way of making periodic individualized determinations about detainees’ current statuses.
The way we used to make those determinations was through Combatant Status Review Tribunals, which virtually never found anyone not to have been, or to have ceased to be, a combatant. This system was obviously dysfunctional. The Supreme Court ended it in 2008 with Boumediene v. Bush, but if there is a replacement system, it has not yet been well publicized.
So we have killed off the one process we had going to make this necessary determination, and now the detainees are even worse off. When we restart it, and we’ll have to, it will be a daunting task. This is not the kind of decision we as a nation have much experience even attempting. We do not ordinarily restrict anyone’s liberty on account of things he or she might do in future.
The two closest analogues I can think of are our handling of the criminally insane, and our parole and probation systems. Neither is much help, because both are premised on the assumption that there is something wrong with the person under scrutiny.
The wrong thing, insanity or criminality, is justly regarded as being a perceptible defect in the wholeness or integrity of the personality. And the reality is, such defects often are quite perceptible. Combatancy is not a defect: three notable combatants in U.S. history bore the names George Washington, Ulysses Grant and Dwight Eisenhower.
A matter of beliefs
One can of course argue that terrorism is an illegitimate kind of warfare, and that anyone who was part of a terrorist army by definition did have something wrong with him, but that is tantamount to saying that terrorism is war crime by definition.
If we say that, then we can and should prosecute those we believe practiced it. If we insist on detaining people just as combatants, however, we are also, like it or not, detaining them for exercising their rights under the laws of war.
So: Imprison a man for eight years and say whether he’s still a combatant. How do you do it? There’s no defect you can hunt for, just allegiances and a willingness to fight for them. And even at our worst moments after 9/11, we as a nation never signed on to anti-Muslim bigotry. Being Muslim is still neither a crime nor of itself a badge of combatancy. In the end, you’re asking about a detainee’s beliefs on a level more specific than mere religion.
The records that were released by the old Combatant Status Review Tribunals were full of data about the past — about a detainee’s acts of war, his training, his connections before capture. As the detention grows ever longer — and in a few more years, some of the detainees will have spent half their lives behind bars — the evidence must concern who the detainees have become now.
If a man prevented from fighting denies the present intent to fight, how can we know otherwise? Without armies, without uniforms, without the possibility of engaging in acts of war while in captivity, the detainee’s heart is where the combatancy lies, or does not, and so the detainees’ hearts must be the focus of the inquiry. It has to be a matter of beliefs a man holds. That’s hard to prove.
And anyway, are we really ready to hold people without trial forever merely because of their beliefs? What other beliefs might we decide allowed us to imprison without trial? Do we want our presidents empowered to imprison people simply for their beliefs?
That is why the war theory is a mistake. Terrorism is crime, and if we treat it as such, we know exactly what we are doing. We know how to deal with the potential future dangerousness of criminals, be they garden variety or war criminals.
Of course, with all the torture-tainted evidence required to achieve convictions, it wouldn’t be easy. But unlike the war paradigm, it at least wouldn’t be absurd.
Jack L.B. Gohn is a partner with Gohn, Hankey & Stichel LLP and a former member of The Daily Record’s Editorial Advisory Board. The views expressed here are solely his own. See a longer version, with links to his authorities, at www.thebigpictureandthecloseup.com.