Redefining the terrorist.

• Author: Kay, Jonathan
• Position: Outmaneuvering Terror

SINCE THE War on Terror began in late 2001, the American military has captured thousands of Al-Qaeda terrorists, Taliban soldiers and other assorted jihadists. Many of these men have been interrogated and released. Others have been returned to their countries of origin. One captive, John Walker Lindh, was prosecuted under U.S. criminal law. The remainder are being held in indefinite detention, including a group of more than 600 who are imprisoned at an American naval base in Guantanamo Bay, Cuba.

From its inception, the Guantanamo facility has aroused widespread international condemnation. (1) Last fall, the International Committee of the Red Cross (ICRC), which monitors conditions at the site, complained that

U.S. authorities have placed the internees in Guantanamo beyond the law. This means that, after more than eighteen months of captivity, the internees still have no idea about their fate, and no means of recourse through any legal mechanism. They concluded that Washington must

institute a due legal process in accordance with the judicial guarantees stipulated by international humanitarian law. This process should formalize and clarify the fate of each and every individual in Guantanamo. Unfortunately, establishing such clarity is easier said than done. As American and international law is currently constituted, instituting "a due legal process" for the Guantanamo detainees would require that the U.S. government first decide whether to treat them as soldiers or criminals. But the modern terrorist is an awkward hybrid of the two and falls cleanly into neither category. Moreover, both designations imply a slew of legal protections that would significantly compromise the War on Terror.

So far, the U.S. government has responded to this dilemma by choosing not to choose. The so-called Guantanamo detainees, Washington says, are "enemy combatants" who may be denied the protections of both the Third Geneva Convention and the U.S. Constitution. According to this analysis, an "open-ended system of internment" is exactly what they are due. In at least one case, the United States has gone even further, assassinating suspected terrorists outside of a combat arena: In November 2002, an unmanned CIA aircraft destroyed a car carrying an Al-Qaeda commander and five traveling companions in the Yemeni outback--an action the Swedish foreign minister denounced as "a summary execution that violates human rights."

Morally and as a matter of expediency, the indefinite detention of terror suspects and their assassination in certain circumstances is eminently defensible. Members of Al-Qaeda and its affiliated groups are nihilistic terrorists who regard mass slaughter as a holy mission. Thousands of lives are at stake, and the United States government is rightly more concerned with protecting them than with pleasing human rights activists.

But the use of the "enemy combatant" designation is a legal stop-gap, a vague classification that sells short America's reputation as a freedom-loving nation. Simply put, the "enemy combatant" designation fails to provide a firm legal footing on which to wage a part of the War on Terror. If America is to safeguard its ideals as well as its citizens, Washington must overhaul federal law to account for the unique threat posed by apocalyptic terrorism. What is needed is nothing less than an entirely new legal category defined by statute--separate from both ordinary criminal law and the law of war--that would assign detainees some baseline level of procedural rights while permitting America to fight the war aggressively.

DURING THE two decades leading up to 9/11, Islamist terrorists struck U.S. targets many times, taking hundreds of lives. With rare exceptions, however, the United States government stubbornly insisted on treating terrorism as a crime and individual perpetrators as criminals and not as participants in a war against the United States. In response to the 1983 bombing of the U.S. Marine barracks in Beirut, the first World Trade Center attack in 1993, the 1998 truck-bombings of U.S. embassies in Tanzania and Kenya, and the 2000 bombing of the U.S.S. Cole in Yemen, the FBI methodically drew up indictments and promulgated arrest warrants as if the terrorists were ordinary bank robbers or kidnappers.

The central problem with fighting terrorism through the courts is the dilatory, procedurally circumscribed nature of criminal law, the high standard of proof it entails, and the extensive rights afforded the accused. Nothing illustrates this better than the pursuit of Osama bin Laden himself, as Ruth Wedgwood pointed out in these pages several years ago. (2) In 1996, then-President Bill Clinton directed a group of FBI and CIA officials to build a case against the Al-Qaeda leader so that he might be captured and prosecuted in an American court. But not until 1998 did the U.S...