United States policy and practice for the detention of enemy combatants in the war on terror.

• Position: Pierre-Richard Prosper, Ambassador-at-Large, Office of War Crimes Issues, United States Department of State - Wartime Security and Constitutional Liberty - Transcript

Thank you, Dean Guernsey, for inviting me to be a part of this important conference. I am glad that Albany Law School is hosting it. It is a timely discussion that we are having--the question of wartime security and constitutional liberty. It is an honor for me to be here with my fellow panelists. I think we will have a thorough and lively discussion on a range of issues. It is also an honor to be part of a panel that honors Justice Jackson, particularly for me, because he worked on issues that I have worked on and continue to work on.

My remarks will focus on the war on terror and in particular on the question of the authority to hold people in time of conflict. I will discuss this primarily through a factual perspective, rather than a legal analysis. I think the other panelists will get into some of the substantive law. I want to try to put everything into perspective, so that we understand the environment in which we are operating.

There has been a lot of discussion over the years, particularly since September 11, 2001, as to the proper reaction to terrorism. This discussion has been reduced to one key question: how do we respond to terrorism? Do we respond to terrorism as a law enforcement matter, or do we respond to terrorism with a broader approach that includes military action? To the Bush Administration, the answer was quite clear; the Administration has decided that it is necessary to have military tools available to combat this war on terror. The Administration also believes that diplomatic, economic, financial, and law enforcement tools must be used as well. In addition, the Administration believes that the laws of war apply to the war on terror.

Today, we see acts of terrorism that cannot be characterized as ordinary crimes. The perpetrators cannot be deemed ordinary criminals. By the nature of their conduct and the scale of their attacks, we must look at terrorist activity differently.

On September 12, 2001, we began to discuss the response to the previous day's attack. We started to view the attacks through the perspective of war. Not war in a metaphorical sense, but actual war. This point is important because it serves as the base for determining the proper response to the terrorist attacks and which legal principals apply to the war on terror.

The war on terror is an actual war. There is a network--a private network that threatens both democracy and humanity--and their sole objective is to destroy human life. If they had it their way, they would be more than happy to kill everyone in this room. They are engaging in catastrophic levels of violence, as witnessed on September 11th, when the world saw thousands of people die in...