With its acts of war, al-Qaida yielded rights

February 04, 2002|By Richard L. Hubbell and Paul Williams

WASHINGTON - The increasing international debate concerning the level of legal protection to which suspected members of al-Qaida are entitled fails to address the single most important issue:

As long as a state of war exists between the United States and al-Qaida, the United States not only has the right but also a legal obligation to hold all identified members of the terrorist organization until such time as there is no longer a state of war between these two entities.

Under international law, the only obligation the United States has is to show that a person is a member of al-Qaida, not whether that person has actually committed an act of violence against the United States.

To put this into context, in World War II the United States did not hold trials of captured enemy soldiers to find out whether they had actually killed U.S. soldiers in combat. Whether riflemen or cooks, all were members of an enemy force and therefore had to be detained until the end of hostilities. Similarly, in order to detain members of al-Qaida, it's only necessary to establish their status as members of enemy forces.

President Bush's characterization of the conflict between the United States and al-Qaida as a state of war is an appropriate response to the threat facing the United States. The actions of al-Qaida over the past five years, including attacks on civilian and military targets, and the public statements of Osama bin Laden stating his goal of opposing the United States with violence - all amount to a de facto declaration of war against the United States.

America's NATO allies have further confirmed the nature of the conflict by declaring that the attacks against the United States fell under the purview of Article 5 of the NATO charter, thereby compelling them to come to the aid of the United States. Members of al-Qaida must therefore be considered members of an enemy force, not merely members of a terrorist group.

Since members of al-Qaida do not wear uniforms or carry identification papers or any of the other legal documents usually associated with formal military organizations, a military commission seems to be the appropriate mechanism for determining their status as members of an enemy force. If the United States determines that it wishes to prosecute a particular detainee for the commission of war crimes or other unlawful conduct, then it also may do so through these military commissions.

The reliance on domestic criminal justice systems to prosecute the war would be markedly insufficient and would expose Americans to further attacks. There would seldom exist sufficient evidence to convict al-Qaida members of U.S. domestic crimes. However, under international law, it is appropriate for a party to detain any member of an opposing force in order to prevent them from committing acts of war - in particular against civilians - until the end of the conflict. The paradox of using the criminal justice system to prosecute combatants is that it provides more rights (e.g., U.S. constitutional protections) to combatants who commit crimes than to those who are merely members of an opposing military force.

The use of the criminal justice system is only appropriate where there is concrete evidence of the commission of a crime occurring within the United States and where the United States wishes to seek punishment, such as life imprisonment or the death penalty, that is beyond that permitted in the context of detention of combatants.

Al-Qaida forces are committed to the destruction of the United States, they have demonstrated their ability to strike at major U.S. military and civilian targets around the world, and there is reliable evidence they are seeking to acquire nuclear materials for use in future attacks.

As articulated in the preamble of the Constitution, a primary purpose of government is the "common defense of its citizens." The appropriate response to an unlawful war is the use of force in self-defense and the detention of those combatants who surrender or are otherwise captured. Thus, as in World War II, the goal of the United States must be the "unconditional surrender" and total defeat of the opposing forces.

Richard L Hubbell is a former U.S. government foreign affairs official, and Paul Williams is a professor of law and international relations at American University.

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