When to Hold Them: Is it OK to detain the terrorist-fighters in Guantanamo Bay “indefinitely”?

March 26, 2002 10:40 a.m.

  Rich Lowry, National Review

Cue the outrage. The Bush administration has said that it might continue to hold Guantanamo detainees even if they are acquitted of specific offenses by military tribunals.

An official with the National Association of Criminal Defense Lawyers huffed the other day in the New York Times: "They create a tribunal that they say is fair, but then they can say, 'We don't like the results and the hell with it, we're going to hold you anyway.' This is a follow-on to their policy of holding people indefinitely before you charge them.…If I came out of the woods after 20 years and saw these rules, I'd think Adolf Hitler or Josef Stalin wrote them."

Wow. Cooler critics will skip invoking Stalin and instead complain that Bush is embracing that old prosecutorial maxim from Alice in Wonderland: "sentence first, trial later."

So, is the Bush administration playing by Lewis Carroll rules in Guantanamo Bay?

To answer, it's important to remember what exactly the detainees are: belligerents, parties to a war. They aren't the everyday muggers and thieves that the redoubtable members of the National Association of Criminal Defense Lawyers routinely attempt to get off on procedural technicalities.

So, their confinement in Guantanamo isn't a punishment, but a preventive detention of the sort that occurs in any war when an enemy soldier is captured.

What makes the Guantanamo detainees different, of course, is that they aren't everyday soldiers either. If they were, they would be POWs, entitled to all the privileges afforded under the Geneva convention — regular pay, comfortable accommodations, shaving gear, backrubs, and massages (well, not quite, but you get the point).

In fact, they are unlawful combatants. Whether they are al Qaeda or Taliban, they belong to organizations that don't respect the laws of war, and flunk the other tests for a legitimate army (wearing uniforms, having a discernible chain of command, etc.).

This means their rights under international law are minimal. They have a right, essentially, to humane treatment and a trial with a modicum of due process before they go to see the firing squad.

As former Reagan and Bush official David Rivkin points out, this means the tribunals could have been all secret, had no appellate process, and had the same standard for guilt as a civil trial (a preponderance of evidence) — and still amply fulfilled any international or constitutional legal obligation we have to the detainees.

Unlawful belligerents have always gotten harsh treatment. George Washington gave a British spy captured behind American lines out of uniform an ad hoc trial lasting all of three hours, with execution swiftly following.

Instead, the new rules for the tribunals are quite generous, and really only differ from courts martial in their appeals process and in the laxer standards for admitting evidence.

But the tribunals don't need to figure into the detainees' detention. In fact, it would be better if they didn't.

The detainees should simply be confined as long as the war continues, which could be quite a long time. Liberal activists, of course, will yell that this "indefinite" detention is a denial of due process and other rights.

But there's no reason to give the detainees better treatment than regular POWs, who are always held until the end of the conflict (even the guys in Hogan's Heroes had to engage in idle chit-chat with the Germans while waiting for the war actually to end).

This is why it is possible as a theoretical matter that a detainee might be tried on a specific charge (say, involvement in the Mazar-e Sharif prisoner riot that led to the murder of CIA officer), get acquitted, then still be held for years: Acquitted or not, he is still an enemy combatant during a time of war.

And this is the important point. As Rivkin argues, except in very special cases, the detainees won't be tried for anything they did, but for what they are, i.e. unlawful combatants. Lawyers refer to it as a "status offense."

In the ideal scenario, detainees would be held until the end of the conflict, then tried, essentially, for their membership in the Taliban and al Qaeda. Just belonging to these groups — murder gangs devoted to killing Americans — is the crime.

Once the conflict is over and they have been tried, then we can think about punishment. Again, their current detention is not punishment, but simply holding them out of the war like a regular POW (if we wanted to continue hold them after the war ends without a trial, then there would be a big due-process problem).

When it comes to punishment, we shouldn't be any less stringent about it than George Washington. Membership in these criminal conspiracies should be considered a capital offense.

They should all be sentenced to die; then the sentences commuted for everyone but the top leaders as a gesture of mercy and humanitarianism (unfortunately, we may not actually be holding any top leaders). The smaller fish could be released, and the middle ranks detained still longer, until they are too creaky to enjoy jihad with quite the same relish.

It is unlikely that it will actually happen this way. The Bush administration, under pressure from international and domestic critics, will probably be pressured to begin holding trials before the war ends. And some of the Taliban and al Qaeda will surely go free while the conflict is still being fought.

That would be a shame. These men chose to fight this war, and at the very least they should have to wait it out, not "indefinitely," but certainly until the fighting has ended.