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Rivkin and Casey: Bill’s Detainee Provisions Reaffirm the Law of War

Gen. David Irvine’s objections to the detainee provisions in the 2012 defense budget bill miss the mark.

These provisions do not change existing U.S. counterterrorism policy, much less challenge the country’s values or character. Rather, they reaffirm measures adopted shortly after 9/11, which the Bush and Obama administrations have rightly seen fit to maintain.

In the wake of 9/11, President George W. Bush concluded that a military response to al-Qaida and its allies was in order, for the obvious reason that the civilian law enforcement system was unable to prevent those devastating attacks. Congress wholeheartedly supported Bush’s decision, adopting a specific Authorization for the Use of Military Force on Sept. 18, 2001.

The United States is, therefore, at war with al-Qaida, its allies and its supporters. U.S. operations against those groups and individuals are governed by the laws of war, which clearly permit U.S. forces to attack al-Qaida’s leadership, operatives, and others who themselves engage in or support hostilities against the United States. In addition, throughout the conflict, the United States is entitled to capture and detain such persons, without criminal charge or trial. Although these detentions may be protracted, they are not “indefinite” because they must end when the fighting does. The Supreme Court has repeatedly upheld the legality of this policy.

It is for this very reason that the 2012 defense authorization bill would reaffirm both the nature of hostilities between al-Qaida and the United States, and these basic rules. In fact, the bill makes clear that detainees’ “disposition” is governed by the law of war — including “long term detention under the law of war without trial until the end of hostilities.”

It also clarifies that U.S. citizens can be held on the same basis but only “to the extent permitted by the Constitution of the United States.”

This is no invitation to remake constitutional law, but the invocation of existing Supreme Court precedent (some dating back to the Civil War and some that are post-9/11) that clearly permits the military detention (and even trial) of citizens who have themselves engaged in hostile acts or have supported such acts to the extent that they are properly classified as “combatants” or “belligerents.”

The bill does not define all of the groups who are al-Qaeda’s “associated forces” — a practical impossibility because of the irregular nature of al-Qaeda’s own organization and its transnational jihad — but makes clear that these forces must be “engaged in hostilities against the United States or its coalition partners.”

This basic limiting factor prevents improper action against groups or individuals who merely sympathize with al-Qaida or its goals.

In no way does the defense bill “militarize our system of justice.” Rather, it makes clear that the primary U.S. response to al-Qaida is, and will remain, military.

For 10 years now, debate has raged about whether a criminal justice approach to al-Qaida would more effectively protect U.S. national interests than a military one. Those who support a law enforcement model, however, have yet to articulate an answer to the most fundamental legal and practical objection to their position: If al-Qaida is to be treated merely as another global criminal organization, then U.S. forces cannot lawfully attack it anywhere in the world.

The legal rules governing law enforcement and war are fundamentally different. Authorities can use deadly force against criminal suspects only in the most narrow circumstances and almost always as a last resort. Unless perpetrators are caught in the act, they can be arrested only on properly issued warrants, and custody of perpetrators in foreign jurisdictions must be secured through the often time-consuming processes of international judicial cooperation.

Once apprehended, criminal suspects enjoy a plethora of rights designed to even the playing field between them and their governmental accusers. Moreover, the entire criminal justice system is based on the assumption that the potential for prosecution and punishment will, for the most part, deter illegal conduct. This system is manifestly unsuited to confronting a worldwide network of zealots who are determined to make war on the United States for their own ideological and geopolitical purposes.

Certainly, terrorism prosecutions in civilian courts can, and have, made a difference in the fight against international terror. However, redefining that fight as solely a law-enforcement problem in which such proceedings are the central mechanism to “defeat” al-Qaida is a recipe for disaster. President George W. Bush and President Barack Obama have rightly chosen not to take that path. Military force, and the body of law associated with it, is the only means by which the United States can degrade al-Qaida’s capabilities and ultimately grind it out of existence.

Force also is the only means by which Washington can effectively protect the American people from future attacks by al-Qaida, its allies and supporters. Demanding that protection does not transform our country into the home of the chicken-hearted. As law and morality make clear: Civilians are not legitimate targets of attack.

The American people have a right to expect that their government will secure them from attack by armed enemies so  that they can continue to enjoy the liberties that define the nation.

David B. Rivkin Jr. and Lee A. Casey are partners in the Washington office of Baker Hostetler LLP, and served in the Justice Department during the Reagan and George H.W. Bush administrations. Rivkin is also co-chairman of the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.

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