In an OCT. 7 editorial, The Washington Post reported that Yaser Esam Hamdi has been detained in the United States for 187 days without access to a lawyer and with no charges filed against him. Jose Padilla, another terror suspect, has been similarly detained for 122 days. Meanwhile, nearly 600 men from 43 countries are detained at Guantanamo Bay Naval Base, captives of America's war in Afghanistan. The men detained in connection with the war on terror are a diverse group suspected of diverse crimes, but all have one thing in common: They enjoy neither the protections of the U.S. legal system nor those of international law.
The Bush administration has accomplished this legal feat by classifying the detainees not as suspected criminals or prisoners of war, but as "enemy combatants." Whereas suspected criminals are subject to the U.S. criminal justice system and prisoners of war are governed by the Geneva Convention, enemy combatants occupy a legal gray area between the two systems. Hamdi and Padilla are American citizens whose classification as enemy combatants has placed them outside the realm of U.S. law. The Guantanamo Bay detainees are foreign fighters whose classification as enemy combatants has placed them outside the realm of international law.
The effect of these designations is to deny the detainees any formal legal status, leaving the administration in sole control of their rights and conditions of detention. By refusing to clearly place the detainees under the jurisdiction of either American or international law, the administration has denied them the protection of both and assigned itself sole responsibility for their treatment.
There is particular reason to be concerned with this situation because the war on terror is a war of unclear enemies and objectives. Terror is a broadly defined enemy and the war against it will be an ongoing process with many potential adversaries. By classifying people as enemy combatants in an unending war with many enemies, the administration effectively has granted itself the power to detain any suspect for as long as it sees fit.
Convenient as it may be, this tactic is both unconstitutional and unbecoming of a nation which has lately taken upon itself the role of freedom defender and global policeman. The administration has aggressively sought the world's acquiescence in its ever-widening war on terror, but we cannot gain the world's confidence if we fight that war through shady legal tactics forbidden even by our own Constitution. If the administration is to maintain America's international credibility and uphold the Constitution (as it is sworn to do) it must grant the terror detainees some formal legal status and the protections that go with it.
The Constitution provides that habeas corpus may be suspended if an invasion of the public safety requires it, but such is no longer the case with Hamdi and Padilla. After several months of detention, the administration must either charge them with some crime or show that they pose a threat sufficient to justify their continued detention without charge. The administration has done neither and the classification of Hamdi and Padilla as enemy combatants does not exempt it from these Constitutional obligations.
The designation of the Guantanamo Bay detainees as enemy combatants is also of questionable legality. Most of the detainees at Camp X-Ray fought either for an unrecognized government or an outlaw terrorist organization and they may not be prisoners of war as defined by the Geneva Convention. But if the administration is unwilling to declare them POWs subject to the terms and protections of international law, it should place them under the jurisdiction of the American legal system. If the men at Camp X-Ray have committed some crime to justify their detention, they must be subject to some formal legal authority.
Whether Hamdi, Padilla and the Guantanamo Bay detainees are ultimately classified as POWs or suspected criminals is less important than that they be granted some formal legal status. America is a nation of laws and all people under American jurisdiction must have legally defined rights and a legally defined process for resolving their case. Clever as it is, the term "enemy combatant" cannot be used to subvert law and place the terror detainees beyond its reach.
Freedom and security must be balanced carefully in a democratic society and in times of terrorist threat, we should give more consideration to security. But we cannot make up the rules as we go and we cannot use arbitrary legal distinctions to undermine both our own Constitution and the international conventions to which we are a party. The terror detainees must be subject to some legal authority beyond the administration and we must resolve their cases according to established law and procedure. To do otherwise is to defy our own values even as we claim to defend them.
(Alec Solotorovsky is a Cavalier Daily viewpoint writer.)
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