Practicing what we preach: humane treatment for detainees in the war on terror.

• Author: Moore, Jennifer

1. INTRODUCTION

   As human beings we do not lose our legal and human personality because we are suspected of links to terrorism. We remain entitled to freedom from arbitrary detention, torture and inhuman treatment at all times and in all situations. In leading the so-called "war on terror," however, the United States is honoring these principles in the breach, as witnessed by the treatment of Jose Padilla, Yaser Hamdi, Shafiq Rasul, Mullah Habibullah, Mr. Dilawar and other terror suspects apprehended in the United States, Afghanistan and Iraq. The mistreatment of these individuals has occurred against a backdrop of repeated misstatements of law by the Bush administration that suspected terrorists may not look to the Convention Against Torture or the Geneva Conventions for protection. (1) Despite using the language of war to characterize its response to acts of terrorism, the United States has sidelined the international law of war in its treatment of suspected terrorists.

   In seeking fair treatment for persons detained on suspicion of involvement in terrorism, we must clarify at the outset our use of certain essential terms. "Terrorism" and "terror," in this analysis, refer to calculated incidents of violence specifically targeting civilians. (2) The "war on terror," or the campaign against terrorism, comprises systematic responses to terrorism, both lawful and unlawful, and whether military, paramilitary or police actions. "Detainees" are individuals apprehended on suspicion of involvement in acts of terrorism, especially those who have not been accorded prisoner of war status, nor charged with specific crimes, nor accorded judicial process prior to during prolonged detention. (3)

   While terrorism is often associated with non-state actors, and the war on terror most often with counter-terrorism measures that engage the military and police power of the state, neither use of force is confined to one set of actors. (4) Nevertheless, in confronting and evaluating the treatment of detainees in the current U.S.-led war on terror, this article will be focusing on action taken by the U.S. government against individuals suspected of involvement in targeted acts of violence against civilians in the United States, Afghanistan and Iraq. The temporal context of this analysis is the period beginning on September 11, 2001, when several thousand civilians were killed in the al Qaeda bombings of the World Trade Center and the Pentagon. The counter-terrorism policies of the United Kingdom in the 1970's and Israel in the 1990's will also provide important historical comparisons.

   This article sets forth both principled and pragmatic arguments for the fair and humane treatment of all individuals detained in the war on terror derived from both U.S. and international law. Section II explores the human dimension of the "war on terror." Section IIA critiques the use of the metaphor of war to characterize counter-terrorism policy. Section IIB examines the experiences of several individuals apprehended by the United States on suspicion of involvement in terrorism, including the response of U.S. courts to their detention without charge as "unlawful combatants." Section III offers possible explanations for the phenomenon by which the United States and other nations denounce terror on the one hand, while engaging in torture, inhuman treatment and arbitrary detention of suspected terrorists on the other. Finally, Section IV explores and seeks to identify and define the abiding and universal norms of humane treatment, freedom from torture and due process as evidenced in the Geneva Conventions, the Convention Against Torture, contemporary social commentary, human rights advocacy and scholarly analysis. While official U.S. policy on torture has evolved closer to international standards in recent months, actual practice remains grossly violative of norms of humane treatment, and no senior government official has taken responsibility or been charged with criminal conduct in any detainee abuse case. In witnessing our collective failure to stop ongoing abuses of detainees by U.S. officials, this article ends with a call to action.

   Both respect for the human dignity of individuals and enlightened self-interest on the part of governments lead us to a similar conclusion. Responses to terrorism, like the phenomenon of terrorism itself, cannot be immune from the rule of law, because in the face of catastrophic acts of violence against civilians, we have a heightened need for the protections that law and humanitarian principles provide.

   It is the framework of law that protects government actors and the citizens they represent from becoming part of the very cycle of violence and illegality that we all confront.

2. THE HUMAN DIMENSION OF THE WAR ON TERROR

   1. The "War on Terror"

      The "war on terror" is a misleading term, if not a misnomer, given that classically wars are fought against armed forces composed of individuals, whether affiliated with governments, factions, insurgencies or more loosely organized bands of combatants. Certainly the term "war" has historically been used metaphorically, as in the "war on poverty," the "war on hunger," and the "war on AIDS." But unlike the war on terror, those campaigns have predominantly used national social programs, private and international philanthropy, and fiscal policy to alleviate socio-economic suffering. Contrastingly, the war on terror, like more traditional wars, relies primarily on the use of force, whether by the military or by law enforcement officials. But here the military model breaks down. In most military, paramilitary and police actions, the enemy is a group of individuals, where in the war on terror, the enemy is a phenomenon.

      War, it has been said, empowers combatants "to kill people and break things." Terror, or the targeted use of violence against civilians, cannot be killed or broken. (5) It is the suspected terrorists and the communities in which they reside that can be killed and broken. Thus, the war on terror is more accurately conceived as a military, paramilitary and law enforcement campaign against suspected terrorists and the states and communities believed to shelter and support them.

      It is at least ironic that the U.S. government has taken the position that humanitarian law, or the law regulating the conduct of warfare, does not apply to the "war on terror." Fundamentally, if we are to affirm the humanity and legal personality of suspected terrorists, we must first acknowledge their extra-judicial treatment, and then seek to resurrect the rule of law in our campaign against terrorism.

   2. The Suspected Terrorists

      Official pronouncements, judicial decisions, media coverage and public discourse all influence the impact of terror and the course of counter-terrorism measures. But if we are to honestly take on the reality of terrorism and counterterrorism, we must confront the impact that the war on terror has had on particular human beings implicated in this conflict. Cases brought on behalf of several of these individuals have given U.S. courts the opportunity to begin re-imposing the rule of law on the government of the United States.

      Two individuals identified with the war on terror at home in the United States were U.S. citizens suspected of involvement in terrorism, who were detained without charge for prolonged periods. Yaser Esam Hamdi was apprehended in Afghanistan and detained without charge in the United States as a suspected Taliban fighter until the U.S. Supreme Court declared in 2004 that he was entitled to challenge his detention in court, (6) at which time U.S. authorities returned him to his native Saudi Arabia. (7) Jose Padilla, the so-called "dirty bomber," was apprehended in 2000 at O'Hare Airport in Chicago, and was detained without charge until November, 2005, despite the Second Circuit Court of Appeals' rejection of the Bush administration's authority to detain him as an "enemy combatant." (8) As of February, 2006, the Supreme Court is considering Padilla's second petition for certiorari, and the United States has recently indicted him on lesser charges. (9)

      In Guantanamo Bay, Cuba, the faces of the war on terror include Shafiq Rasul and other suspected Taliban and al Qaeda operatives detained without charge until the U.S. Supreme Court declared they were entitled to hearings to determine their status as POWs, irregular combatants or civilians. (10) In Iraq, a faceless, hooded man and his fellow inmates have come to personify the war on terror, as their pictures made infamous the U.S.-run Abu Ghraib detention center. This group of prisoners suffered many forms of torture and inhuman treatment at the hands of U.S. military personnel, including sleep and food deprivation, stress positions, beatings, simulated drowning, sexual abuse and humiliation. (11) Private Charles A. Graner, Jr., a military police officer (MP) and the declared ringleader of abusive MP's at Abu Ghraib, was convicted of criminal conduct and several other MP's have plead guilty to various charges of abuse. More recently, in July of 2005, eleven U.S. soldiers were charged with abusing detainees in Iraq, and their company has been taken off active duty pending the investigation. (12) Nevertheless, to date no senior U.S. military or civilian official has been charged in the detainee abuse scandal. (13)

      Finally, in Afghanistan, among the most tragic faces of the war on terror are those of Mullah Habibullah and a 22-year-old taxi driver named Mr. Dilawar, who both died in December 2002 from beatings by U.S. military personnel at Bagram Control Point. (14) Much of what we now know about the deaths of Habibullah and Dilawar comes from a nearly 2000-page confidential Army criminal investigation file that was obtained by New York Times reporter Tim Golden. (15)

      Golden's May 2005 analysis of the Army report recounts extensive testimony by Army interrogators and guards that both men were subjected...