\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 by Jack L. B. Gohn<\/p>\n
\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u201cWe are at war against al Quaeda,\u201d said President Obama on January 7<\/a>, 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<\/a> was a war.\u00a0 No doubt he signed on to this misuse of the term \u201cwar\u201d because to fail to do so would have left him politically exposed to attacks from the right.\u00a0 But most likely he also misused the term because, increasingly, \u201cwar\u201d looks like the only legal justification for potentially lifelong detention of around 50 of the Guantanamo detainees deemed especially dangerous, while denying them a court trial or even a military commission hearing.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The trouble is, this justification may not justify enough and, at the same time, much too much.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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<\/a>.\u00a0 We don\u2019t know much about the Obama administration\u2019s justifications.\u00a0 In May, Obama said he\u2019d ask for authorizing legislation.\u00a0 After backpedaling from that statement in subsequent months, the Justice Department issued a September statement<\/a>, apparently unposted on the Department website, reportedly relying on these detainees\u2019 status as combatants. No one returned my call to Justice seeking a spokesman on this.[1]<\/a>\u00a0 So we\u2019re guessing here.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 However, we are safe in assuming that, just like the Bush theorists, Obama\u2019s team reasons that combatants captured in a war can be detained for the duration.\u00a0 Since the detainees are accused of no crime (attacking the U.S. by means that accord with the laws of war is lawful for combatants), they do not belong in either the civilian or the military justice system.\u00a0 But it still accords with the laws of war to hold them.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 There are some problems with this neat formulation, however, when applied in a situation that bears almost none of the traditional hallmarks of war.\u00a0<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Because there will be no surrenders, peace treaties or armistices, we know already that we shall lack the all the signal events that ordinarily enable us to distinguish when a war comes to an end.\u00a0 (Under the law of war, once a war ends combatants must be promptly repatriated.)[2]<\/a>\u00a0 And if, as seems likely, this \u201cwar\u201d will last a lifetime, then there must be some recognition of the right of the individual combatant detainee unilaterally to cease being a combatant.\u00a0 Otherwise we are likely to be detaining large numbers of people for a status that they once occupied but in no meaningful way continue to do.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Supreme Court held in Hamdi v. Rumsfeld (2004)<\/a><\/em> that detainees must have a neutral forum before which to challenge the government\u2019s original classification of them as combatants.\u00a0 It would seem that the same should be done for those who claim not to be combatants any longer.\u00a0 And indeed, standing orders of the Department of Defense dating to 2006 apparently call for such cases to be \u201creviewed periodically by a competent authority.\u201d<\/a>[3]<\/a>\u00a0\u00a0 So, if we insist on buying into the war rationale, we need a way of making periodic individualized determinations about detainees\u2019 current statuses.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The way we used to make those individualized and periodic determinations was through Combatant Status Review Tribunals, which, however, virtually never found anyone not to have been or to have ceased to be a combatant<\/a>.\u00a0 This system was obviously dysfunctional.\u00a0 The Supreme Court ended it in 2008 <\/a>with Boumediene v. Bush<\/a><\/em>, but if there is a replacement system, it has not yet been well publicized.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 So we have killed off the one process we had going to make this necessary determination, and now the detainees are even worse off.\u00a0 When we restart it, and we\u2019ll have to, it will be a daunting task.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 This is not the kind of decision we as a nation have much experience even attempting.\u00a0 We do not ordinarily restrict anyone\u2019s liberty on account of things he or she might do in future.\u00a0 The two closest analogues I can think of are our handling of the criminally insane, and our parole and probation systems.\u00a0 Neither is much help, because both are premised on the assumption that there is something wrong with the person under scrutiny.\u00a0 The wrong thing, insanity or criminality, is justly regarded as being a perceptible defect in the wholeness or integrity of the personality.\u00a0 And the reality is, such defects often are quite perceptible.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Combatancy is not a defect: three notable combatants in U.S. history bore the names George Washington. Ulysses Grant and Dwight Eisenhower.\u00a0 The combatancy problem is most likely not that the detainees weren\u2019t combatants, it\u2019s that they weren\u2019t our<\/em> combatants.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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<\/em> have something wrong with him, but that is tantamount to saying that terrorism is war crime by definition.\u00a0 If we say that, then we can and should prosecute those we believe practiced it.\u00a0 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.\u00a0<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 So: Imprison a man for eight years and say whether he\u2019s still a combatant.\u00a0 How do you do it?\u00a0 There\u2019s no defect you can hunt for, just allegiances and a willingness to fight for them.\u00a0 And even at our worst moments after 9\/11, we as a nation never signed on to anti-Muslim bigotry.\u00a0 Being Muslim is still neither a crime nor of itself a badge of combatancy.\u00a0 In the end, you\u2019re asking about a detainee\u2019s beliefs on a level more specific than mere religion.\u00a0<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The records that were released by the old CSRTs were full of data about the past \u2013 about a detainee\u2019s acts of war, his training, his connections before capture<\/em>.\u00a0 As the detention grows ever longer \u2013 and in a few more years, some of the detainees will have spent half their lives behind bars \u2013 the evidence must concern who the detainees have become now. If a man prevented from fighting denies the intent to fight, how can we know otherwise?\u00a0 Without armies, without uniforms, without the possibility of engaging in acts of war while in captivity, the detainee\u2019s heart is where the combatancy lies, or does not, and so the detainees\u2019 hearts must be the focus of the inquiry.\u00a0 It has to be a matter of beliefs a man holds.\u00a0 That\u2019s hard to prove.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 And anyway, are we really ready to hold people without trial forever merely because of their beliefs?\u00a0 What other beliefs might we decide allowed us to imprison without trial?\u00a0 Do we want our presidents empowered to imprison people simply for their beliefs?<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 That is why the war theory is a mistake.\u00a0 Terrorism is <\/em>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.\u00a0 Of course, with all the torture-tainted evidence required to achieve convictions, it wouldn\u2019t be easy.\u00a0 But unlike the war paradigm, it at least wouldn\u2019t be absurd.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0<\/p>\n [2]<\/a>.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Third Geneva Convention, Art. 118<\/a>.<\/p>\n
[1]<\/a>.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 A few days after my deadline for this piece, anonymous administration spokespersons leaked to the Washington Post<\/a> and to the New York Times<\/a> the administration\u2019s plans, roughly as described here, and, as predicted, made vague references to POW status for the now indefinitely detained.<\/p>\n