We are a nation at war. On September 11, 2001, four coordinated attacks took place in rapid succession, aimed at critical government buildings and the heart of our national financial system.
September 11 witnessed the deaths of approximately 3,000 civilians, the wounding of even more, the destruction of billions of dollars in property, and the shut down of our financial markets and transportation systems. The attacks were carried out by members of al Qaeda, a foreign terrorist organization that seeks to replace American allies in the Middle East with radical fundamentalist Islamic regimes.
John Yoo teaches at the Boalt Hall School of Law at the University of California at Berkeley. Previously he was deputy assistant attorney general at the U.S. Department of Justice, where he was part of the group that wrote the 2002 memos concluding that detainees at Guantanamo were not subject to the Geneva Conventions.
Yet, critics of the Bush administration believe that peacetime rules applied to criminals are good enough to address this threat. They believe that law enforcement must charge terrorists with crimes, provide lawyers, and try them before a jury of their peers, or let them go. This terrorism-as-crime worldview demands that captured al Qaeda operatives, and their Taliban supporters, held at Guantanamo Bay receive American due process standards supervised by federal courts.
Such arguments deny the reality of the September 11 attacks and ignore changes in the nature of war. This attitude led the United States to send FBI agents to investigate the "crime scene" after bombings of the U.S. embassies and ships in Africa. Plans to capture or kill al Qaeda leader Osama bin Laden were at one point shelved because of legal concerns that the Justice Department did not have enough evidence to show probable cause to arrest in federal district court. This criminal justice approach, which is primarily retrospective in nature, did not prevent the September 11 attacks (or the series of attacks that preceded it).
If we are at war, then the rules of warfare permit us to capture enemy prisoners, such as al Qaeda terrorists, and to hold them until the end of the conflict. Detention removes enemies from the fight and permits their interrogation for information. It is not a punishment, so the laws of war have never required lawyers or judicial review for enemy prisoners. No treaty and no American practice in any previous war have ever extended rights of due process to captured enemy prisoners.
Terrorists are not even legally due the rights and privileges that would benefit prisoners of war (POWs) under the Geneva Conventions — which themselves do not require due process and judicial review. Al Qaeda is not a nation-state and has never signed the Conventions, which apply only between its parties. Moreover, al Qaeda violates the very core principles of the laws of war by targeting civilians for death and disguising themselves as civilians so as to further blur the lines between combatants and the innocent.
While Taliban fighters had an initial claim to protection under the Conventions (since Afghanistan signed the treaties), they lost POW status by failing to obey the standards of conduct for legal combatants: wearing uniforms, maintaining a responsible command structure, and obeying the laws of war.
The reasons to deny Geneva status to terrorists extend beyond pure legal obligation. The primary enforcer of the laws of war has been reciprocal treatment: We obey the Geneva Conventions because our opponent does the same with American POWs. That is impossible with al Qaeda. It has never demonstrated any desire to provide humane treatment to captured Americans. If anything, the murders of Nicholas Berg and Daniel Pearl declare al Qaeda's intentions to kill even innocent civilian prisoners. Without territory, it does not even have the resources to provide detention facilities for prisoners, even if it were interested in holding captured POWs.
It is also worth asking whether the strict limitations of Geneva make sense in a war against terrorists. Al Qaeda operates by launching surprise attacks on civilian targets with the goal of massive casualties. Our only means for preventing future attacks, which could use weapons of mass destruction, is by acquiring information that allows for pre-emptive action. It makes little sense to deprive ourselves of an important — and legal — means to detect and prevent terrorist attacks while we are in a fight to the death with al Qaeda.
If we were to extend due process to Guantanamo Bay, judges could begin interfering with military operations in wartime, including detention policies, interrogation methods, and the use of information. This makes little sense in an unprecedented conflict in which we confront an enemy without territory or cities to defend, without a population to protect, and without an enemy armed force to attack. We have no legal obligation to extend due process to terrorists in wartime, we never have in the past, and we should allow the President and Congress – not the courts – the flexibility to manage a war against our most dangerous enemy.