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Law and War: Competing Visions

By Ronald A. Cass

Our national debate over treatment of terrorists and terror suspects captured abroad, playing daily now in Congress and in the press, is fundamentally a clash between two different visions of law.

On one side of the debate is President Bush, who as Commander in Chief is charged with protecting the lives of American citizens. The other side, in addition to the usual array of Democrats, has included three Senators from the President's own party, John McCain, John Warner, and Lindsay Graham.

Although the President and Republican senators now have reached a compromise, the debate continues. Politics aside, the choice between competing visions of law and contrasting approaches to our fight against terror will affect our freedom, liberty, and safety.

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Law is a critical tool of civilization. A nation's laws and legal system both reflect and define its sense of right and wrong. The clarity, consistency, and substance of its laws (as written and applied) have profound implications for a society's success. But not all law is the same.

Domestic law is, by its very nature, coercive. Individuals can, by the power of the state, be forced to obey the law at risk of loss of liberty, property, or both. The sacrifice of personal autonomy that allows this is justified by the fidelity of those who make and enforce the rules to principles of limited power, legitimacy in law-creation, predictable and impartial enforcement, and respect for liberty. That is the essence of the rule of law.

International law, in contrast, typically lacks any true enforcement mechanism. That fact changes both its meaning and its purpose.

Because it is not backed by coercive authority, government officials can, on behalf of their nations, sign agreements they have no intention of living up to. Look at the list of humanitarian agreements signed by Stalin's Soviet Union or Idi Amin's Uganda, or the non-aggression pact between Stalin and Hitler - the list of examples is endless. These agreements are political, not legal in the usual sense of the term.

Without real enforcement, governments agree to vague terms that could be interpreted in dramatically unappealing ways. That is why so much in the international arena turns on the identity of those who are applying the law. However sensible something is on paper, how many of us would want our own future liberty determined by Muammar Qaddafi, Kim Jong Il, Robert Mugabe, and other such leaders in the community of nations?

International law isn't intended to have the same consequences and enforcement as national law and cannot be read the same way. For the same reason, accords among nations expected to abide by them cannot be read the same way when applied to relations with regimes - or worse, those operating outside any national office - that can be expected to treat international law with the same disdain they show for human rights and human life.

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The current debate over treatment of al-Qaeda partisans captured abroad reveals two different visions of the law. The first group (led by President Bush) sees the law as subordinate to a conflict between good and evil. It can set limits to what we'll do to combat evil, but those limits must reflect our own interests. The second group (opposing the President), seeing law in more universal terms, wants to treat the terrorists essentially like citizens charged with crimes - giving them similar protections against government over-reaching, similar presumptions of innocence and fair play.

President Bush's position is easy to state and to understand: We are facing an enemy that has no national government, obeys no rules, and is dedicated to our destruction. They have attacked us repeatedly over more than a decade. We cannot fight al-Qaeda by destroying its homeland. We cannot retaliate against its atrocities by cutting off trade or attacking their cities.

The obvious corollary of this position is that our fight must focus on prevention and disruption. We should do everything we can short of torture to obtain information about how our enemies work and what they are planning. We should reveal as little as possible to them of what we know. We should not tie the hands of those on our front lines with vague instructions backed by potentially severe penalties.

The opposing position is that America should play by the rules of international law, as set forth in the Geneva Conventions. We should behave as if the law is clear and binding, and we should set standards that we want applied to our soldiers by our enemies. This approach has attracted an odd coalition of those concerned about treatment of captured American soldiers, civil libertarians worried about weakening rights for Americans accused of crime, and hug-a-terrorist liberals who think that playing nice brings out the best in everyone.

One argument on this side should be dismissed out of hand: that the rights we give our current enemies influence the treatment they'll give to captured Americans. The people we are fighting in the War on Terror are not nice people. Among other atrocities, they beheaded Daniel Pearl, Nick Berg, Eugene Armstrong, Kristian Menchaca, and Thomas Tucker, took pictures and videos, and posted them on the Internet and on Al Jazeera so no one would miss the carnage. They delight in killing innocent civilians, as well as our soldiers. For them, 9/11 was a triumph. Anyone who thinks that what we're debating - how we interrogate terrorists, how we gather information, how we determine terror suspects' guilt or innocence - makes a difference to our enemies in this fight is living not just on another planet but in another galaxy.

Civil libertarians' concerns that giving lesser protections to unlawful combatants will erode rights for domestic criminal suspects are not silly - merely unjustified. There are easy ways to distinguish between the two settings and strong legal and practical protections in ordinary criminal law cases.

The serious members of this group offer a different argument: Even if we won't have an impact on al-Qaeda's treatment of any captured American, the rules we set for any conflict can have an effect in the future. Hence, our treatment of all captives, including unlawful combatants, should conform to rules we want applied to Americans held as prisoners-of-war, to encourage similar treatment by other nations in other conflicts.

Some nations might see our treatment of terror suspects as the standard we would apply if their soldiers were in our custody as prisoners of war and downgrade treatment of our soldiers in response. But it is far more likely that, in keeping with historic practice, others will distinguish treatment given to prisoners of war from that given to unlawful combatants.

Prisoners of war are captured soldiers waging war under the flag and laws of their nation. Under long accepted law and practice, terrorists - who act outside the laws of any nation - are entitled to none of the protections afforded prisoners of war. Any national government inclined to respect rules for treatment of prisoners of war would likely recognize America's treatment of prisoners of war, not of unlawful combatants, as setting the standard they should expect for their prisoners.

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Bush's opponents also claim that the Supreme Court's Hamdan v. Rumsfeld decision last summer held that the Geneva Conventions require the safeguards these opponents favor.

The Court might say that, but it hasn't yet.

In Hamdan, the Supreme Court said that Common Article 3 of the Geneva Conventions applies to the conflict with al-Qaeda. The Court did not make clear, however, what protections apply to detainees determined to be unlawful combatants.

The question left on the table is not easily put to rest. There are respectable arguments that, under the Fourth Convention, Common Article 3's protections extend to all persons in custody. Equally strong arguments see that Convention's critical obligations attaching only to non-combatant civilians, otherwise it would give higher protections in some respects to unlawful combatants than are granted to prisoners of war.

Hamdan raises the stakes in this debate by making interpretation of Common Article 3 dependent on its construction by other nations after US accession to the Conventions. Because US law makes it a crime to violate Geneva Convention obligations, US personnel now risk prosecution for actions they cannot reasonably know would be deemed violations of Article 3. When, for instance, does an aggressive interrogation violate Common Article 3's prohibition on degrading treatment?

Some politicians and pundits urge interpretations that stretch the bounds of law and of common sense. They would give sensitive information to terrorists and flatly outlaw aggressive interrogations that might protect us against another 9/11 - not seeing the risk of humiliating terrorists as distinctly less pressing than the risk terrorists pose to innocent American lives.

An expansive Article 3 isn't needed to prevent truly wrong conduct. Interrogating unlawful combatants isn't the first step in the inevitable path to torturing innocents. Those who behead civilians already start at the other end of the path.

Americans are rightly concerned to limit government power that threatens our liberty. But we should not limit government power in ways that make it impossible to protect American lives. And we should not invoke international law as the basis for a self-destructive choice.

Ronald A. Cass is Chairman of the Center for the Rule of Law, Dean Emeritus of Boston University School of Law, and author of "The Rule of Law in America" (Johns Hopkins University Press).

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