The argument for lawfare

Thomas B. Wilner:

The Supreme Court heard arguments this month in cases brought by detainees held at Guantanamo Bay. Media reports noted the complicated legal issues involved, such as whether the Constitution extends beyond sovereign U.S. territory, whether foreigners are entitled to constitutional protections and whether habeas corpus would have been available in a place like Guantanamo some 250 years ago under British rule.

Those are all interesting legal questions. But what is at stake here is far less complicated and more fundamental -- the question of whether our government can throw people in prison without giving them a fair chance to defend themselves.

Throughout the civilized world, the right not to be imprisoned without a fair hearing -- one that provides notice of the charges and the opportunity to rebut them before a neutral decision maker -- is fundamental. It is the hallmark of the rule of law.

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If we were fighting lawfare instead of warfare this argument would be more persuasive. Lawfare was what we were engaged in prior to 9-11 and 9-11 was its disastrous consequence. The rules if evidence gave the enemy access to our sources and methods of gatering intelligence on his next attacks, thus bin Laden quit using his satellite phone to communicate with his operatives the way he did in the embassy bombing in Africa.

When it comes to the law of wars, detainees have very different rights than those for criminals under the constitution. If the detainee follows the rules of war, he has protections under the Geneva conventions which proscribes how he must be held. If he does not follow the rules set by the Geneva Conventions he is an unlawful enemy combatant and he has fewer rights. In either case, under the rules of war he may be held for the duration of the conflict. If al Qaeda decided to quit making war against us and entered into a formal agreement with us, they would all be released without any judicial intervention. That is clearly the best way to handle these people who want to engage in mass murder of non combatants. By their conduct they have made themselves ineligible for the treatment Wilner suggest that are entitled to. Gitmo is a good place for them. They get far better treatment than their side gives those they have captured.