The Bush administration should convene a bipartisan panel of judges and law professors to study the issue of detained terrorist suspects and how to treat them and to recommend a policy.
The lack of a policy toward detainees is damaging our efforts in the wars in Iraq and Afghanistan. Many of our allies may view our lack of a coherent detainee policy as a tacit endorsement of torture. Nor will people in the Middle East accept democracy if the strongest democracy in the world seems to advocate immoral and inhuman treatment of prisoners. We need a policy that is complex enough to address the real issues yet simple enough to be explained to a Rotary Club.
There are many serious issues to consider.
We are in a war with people who are religiously motivated to kill us. We did not choose this war; it was chosen for us on 9/11. Thus we are faced with hard choices that we would not willingly contemplate if we had any other option.
This high-tech age has made it possible for a shadowy network of individuals to inflict great pain on the nation. If our enemies ever obtain nuclear or biological weapons, what is now a war of ideology will become one of existence. Nor is compromise or accommodation an option. Our enemies believe in a world that does not tolerate freedom of religion, freedom of speech or equal rights for women.
We are in a war like no other in our history. We need new models, new theories and new ways of doing things. If we are serious about winning this war, we must begin a period of debate, discovery and dialogue. This is especially needed in the handling of detainees.
One of the few historical paradigms that resemble the current war is Britain's effort against international piracy in the 18th century. When the British caught a pirate, they convened an Admiralty Court made up of the same people who captured the suspect and hanged him. Such brutal expediency might not be appropriate today, but it illustrates how those who fight outside the standards of the law of armed conflict are a special case and require special procedures.
In prior wars, the Geneva Conventions, the laws of armed conflict and customary international law permitted a country to hold enemies as prisoners until they were no longer a threat to the nation. Normally, that was when the two sides signed a peace treaty. An enemy religiously motivated to kill us might never stop being a threat to our existence.
The abuses at Abu Ghraib were twice as vile and revolting because Americans committed them. We expect better than that because even in our worst moments, we have always tried to live up to the ideals of the Declaration of Independence and the Constitution.
Yet it is ludicrous to treat a terrorist seized on the battlefield as if he were a defendant in a criminal trial. A murderer who violates the accepted laws of war by intentionally targeting civilians certainly does not require or deserve a Miranda warning. Nor is it necessary for the soldier in the field to determine habeas corpus before taking a prisoner.
Torture is unacceptable when we interrogate prisoners, regardless of their status. The Army Field Manual on Interrogation, adopted by Congress as the guiding document for detainee treatment, clearly defines what techniques are unreasonable. In addition, the manual also has a "reasonable man" clause that attempts to give guidance for activities not specifically forbidden. Such clauses are often used in laws, contracts and written instructions when all possible scenarios are unable to be defined.
But it is dangerous to assume that everyone will interpret that clause in the same way. Without a clear and transparent policy, the range of possible outcomes is anywhere from the abhorrent to that which is not too different from what one might see on NYPD Blue.
It is prudent to determine if the prisoners we take are illegal combatants as per the Geneva Conventions and if they pose a threat to the United States or if they were simply in the wrong place at the wrong time. Military tribunals can be effective in this process.
There should be a review process to ensure that these decisions are made dispassionately. The Geneva Conventions, as a ratified treaty, is the same as federal law. Therefore, part of this process may end up being conducted in a federal court. Regardless, this should not be a criminal procedure. The point of this process is not to determine guilt or innocence but to determine the prisoner's correct status under the Geneva Conventions.
We owe it to ourselves to get this right.
We must take all reasonable actions to protect ourselves from those who would destroy our society. But we must also make sure that we do not turn our backs on the best of the ideals that define our civilization.
Christopher Davis is a Navy Fellow at AEI.
