Lawfare and impunity for al Qaeda

David Rivkin and Lee Casey:

The federal appeals court in Richmond should quickly grant the Justice Department's request that it reconsider last month's decision in the case of Al-Marri v. Wright-- a decision that denied the existence of the legal category "unlawful enemy combatant" in America's conflict with al-Qaeda. (This question is not, it should be noted, at issue in the Guantanamo detainee cases that the Supreme Court has just agreed to hear in the fall.)

The reasoning in the Al-Marri case was deeply flawed, and if widely adopted it would undermine a fundamental purpose of the laws of war: avoiding impunity for war crimes. The ruling not only weakened America's national security but opened the possibility that no body of law applies to conflicts between non-state actors -- which would make it impossible, for example, to prosecute the Hamas gunmen who recently murdered Fatah fighters and wantonly killed Palestinian civilians in Gaza.

The case involved the detention of Ali Saleh Kahlah al-Marri, a man the United States believes to be an al-Qaeda agent and has held since 2003 as an enemy combatant. Two of three 4th Circuit judges concluded that because al-Qaeda is not a state, Marri must be treated as a civilian criminal defendant. They claimed this position was supported by the Supreme Court's statement in Hamdan v. Rumsfeld that the war in Afghanistan is only an internal conflict -- and further claimed that the legal classification of enemy combatant, as opposed to civilian, does not exist in such conflicts.

Their sole authority for this conclusion was a 2005 statement by the International Committee of the Red Cross (ICRC), a persistent critic of America's war on terror, that "[i]n non-international armed conflict combatant status does not exist." Ironically, for years the ICRC tried to achieve some type of combatant status for non-state participants in internal conflicts, fearing that most countries would treat them far more harshly as civilian criminal defendants. Moreover, its 2005 assertion that combatant status does not exist in internal conflicts -- especially as construed in A l-Marri-- is inconsistent with its own earlier (and more authoritative) commentary on the Geneva Conventions.

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There is much more. The courts are really botching the laws of war and attempting to impose the failed lawfare doctrine of the Clinton administration that led to 9-11. These people are clearly enemy combatants and should be detained at Gitmo are elsewhere for the duration of the conflict. Imposing legal rights on these people will lead to their release to commit acts of war against the US and kill innocent non combatants.