TCS Daily


What's at Stake at Gitmo Bay

By Brian E. Finch - January 25, 2002 12:00 AM

Cuba has always held a special place in the hearts of social justice advocates and the left as a whole, so it should be no surprise that it is the newest location for their war on the war on terrorism.

Not only have human rights groups and perpetual left-wing critics such as former U.S. Attorney General Ramsey Clark launched increasingly vocal attacks on the conditions and treatment afforded to the captured al-Qaeda and Taliban fighters brought to the detention center in Guantanamo Bay, but so also has the Dutch Foreign Minister. These groups are trying to force the United States to classify the detainees as "prisoners of war," thus allowing them certain rights granted to such persons under the Geneva Convention - indeed a lawsuit has been filed in U.S. District Court in pursuit of just that goal.

The Bush Administration has so far resisted these calls to classify the detainees as "prisoners of war." This is the correct decision, and denying the detainees POW status is far more important than most human rights or even law and order advocates realize. In fact, should the U.S. yield to the demands of these organizations and grant POW status specifically to al-Qaeda fighters, it will have unwittingly granted a tremendous increase in legal status to al-Qaeda and terrorist organizations across the globe. This is because granting al-Qaeda members POW status (and similarly prosecuting al-Qaeda members for violations of the law of war under President Bush's military tribunal order) will set an unintended and wholly undesirable precedent for treating terrorists as soldiers instead of criminals, and will lay the groundwork for requiring terrorist groups being treated as the legal equivalent to nations, all to the detriment of the ongoing fight against terrorism.

The various laws of war carefully define who is a "combatant" and therefore covered by such laws. For instance, the Geneva Convention on the treatment of POWs covers persons who are members of a nation's military or militia forces. Captured "resistance forces" may be treated as POWs so long as they are commanded by person a responsible for their actions, openly carry arms and conduct their operations in accordance with the laws and customs of war. Similar rules apply for persons to be considered as "combatants" under Protocol I to the Geneva Convention, which essentially sets out what is a "war crime." Under Protocol I, persons qualifying as combatants must follow strict guidelines such as avoiding attacks on civilians as well as distinguishing themselves from civilians while they are engaged in an attack, otherwise they will be in violation of the laws of war.

A quick review of those laws reveals that terrorists do not meet the requirements to be treated as POWs or "combatants." The acts of September 11 would undeniably constitute grave offenses of the law of war if al-Qaeda members were considered combatants or persons who met the requirements to be treated as POWs. But, do we want to establish that the members of a loose organization whose sole purpose is to gleefully massacre civilians deserves the same rights as soldiers from civilized nations? It would certainly seem not in our interest to do so. Yet, if we find that al-Qaeda fighters are entitled to POW status, or similarly we prosecute members of al-Qaeda for violations of the laws of war, the U.S. is perilously close to subverting the main purpose behind its war on terrorism, namely de-legitimizing and destroying terrorist groups. In fact, the exact opposite will occur and the U.S. will be increasing the legal legitimacy of terrorists and their supporting organizations.

Legitimacy and legal recognition are two major goals of terrorist groups. British military historian Sir Michael Howard noted that the Irish Republican Army struggled unsuccessfully for years to receive the protections of the law of war as part of its effort to legitimize its tactics as well as objectives. Indeed, the IRA doggedly sought to have its captured operatives treated as POWs, not as simple murderers and mayhem-inspiring hooligans. Such legitimacy and recognition via treatment as POWs was crucial to the IRA because it would represent an officially sanctioned elevation in status from being an outlaw terrorist organization to a legitimate political movement that was owed specific rights and legal deference. This happens because by being treated as POWs or prosecuted as war criminals, terrorists legally become "combatants", bestowing upon their cause an otherwise unreachable recognition - namely that their organization is deserving of the same rights normally reserved for nations.


"Combatants" and POWs must be responsible to a group (normally a nation) to achieve that status, and in the absence of such a nation, the only responsible power is of course the terrorist group itself. It follows then that if the terrorists are granted the rights accorded only to soldiers of nations, then their "nation" (i.e. al-Qaeda) must have the rights given to a nation. The recognition achieved by acknowledging the application of the various laws of war to terrorists will subject the U.S to unending pressure by nations and non-governmental organizations to respect certain legal rights and norms for terrorist groups that were previously reserved for nations. For instance, al-Qaeda could acquire some of the rights assigned under international law reserved for nations. Imagine the consequences if, after a military strike against al-Qaeda, it could properly declare that it was invoking its right under the U.N. Charter for self-defense? That is the type of legitimacy that classifying terrorists as POWs or prosecuting them as war criminals may lead to, and it must be avoided. Moreover, there is almost no chance that the terrorist groups will adhere to their reciprocal responsibilities under the laws of war. Groups like al-Qaeda can succeed in their attacks only by ignoring such established rules.

Lest you think that this result is far-fetched, understand that the world of international law is often governed by those least connected to its consequences: law professors. A body no less august than the U.S. Supreme Court has sanctioned this role. In The Paquete Habana case, the Supreme Court stated that where there is no controlling decision on a particular issue of international law, it must resort to the "customs and usages of civilized nations" as determined by "the works of jurists and commentators" as they will provide "trustworthy evidence of what the law really is." (Keep in mind that this is the same group that considers Nike not paying its Southeast Asian workers enough a violation of "fundamental human rights.") With that in mind, the treatment of al Qaeda prisoners as POWs and Bush's military tribunal order provides law professors all the proof they need to argue that since individual terrorists are being treated as soldiers, their sponsoring terrorist groups must be treated not as common criminals using uncommon means, but rather as nations, with all duly associated rights.

This cannot come to pass. The Bush Administration must not grant POW status on al-Qaeda fighters. Indeed, there is also a strong argument to be made (as has been made by Columbia Law School professor Michael Dorf) that Taliban fighters are not entitled to POW status by virtue of their failure to adhere to certain requirements of the Geneva Convention. Such arguments are likely valid, but they should not distract the United States from the awful consequences associated with granting POW status to al-Qaeda members. Regardless of how it treats Taliban soldiers, the U.S. must make certain that al-Qaeda fighters are in no way granted the privileges of POWs, as the consequences will be dire. Human rights advocates can argue all they want for the application of the U.S. Constitution and other international laws to terrorists. However, whatever solution is reached, it must not include the granting of POW status.

Similarly, if President Bush decides to use military tribunals, he must not undertake prosecutions for violations of the laws of war. Instead, he should only authorize prosecutions against al-Qaeda members for violations of "other applicable laws" as his Order so provides. Prosecuting under other laws would allow the U.S. to punish terrorists as common criminals under a recognized legal framework without bestowing upon them an unnecessary recognition. Alternatively, the Bush Administration could find that members of al-Qaeda are members of the armed forces of a particular nation (for instance Iraq), denying al-Qaeda its self-imposed status as a rogue terrorist organization. This would allow prosecutions for war crimes without increasing the legal status of terrorists. It would be impossible to do this to every terrorist group, however, and here al-Qaeda appears to survive without much help from any nation.

What is most important however is to not treat al-Qaeda members as soldiers fighting for a recognized cause, which is what the U.S. will do if it chooses to treat al-Qaeda fighters as POWs or prosecutes them for war crimes. By doing so the U.S. will greatly restrict its ability to fight terrorism in the future by expanding the legal recognition and rights of terrorists. There will be many obstacles in our long fight, and the last one the U.S. needs to face is one that is self-imposed.

Brian Finch is an attorney in Washington, D.C. who holds a Masters Degree in Security Policy Studies from The Elliot School of International Affairs at George Washington University and is a former law clerk in the International Law section of the Drug Enforcement Administration.

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