Holding prisoners of war isn’t “preventive detention”

A captured Taliban or al-Qaeda fighter who is innocent, or at least can’t be proven guilty, of war crimes can still be held as a PoW. That isn’t new.

All right-thinking people are shocked and horrified that the Obama Administration is thinking about keeping some suspected al-Qaeda and Taliban fighters locked up even if they aren’t charged with, or are acquitted of, war crimes.

Color me wrong-thinking.

Whether someone has committed war crimes, and can be proven to have committed them beyond reasonable doubt under the rules of evidence that apply in a criminal trial, is one question. Whether he’s a fighter for the other side in a war is a completely different question. Someone can be innocent of any war crime and still be an enemy fighter.

The basic rule of criminal justice is “innocent until proven guilty.” The basic rule about prisoners of war is that combatants can be held as long as the conflict lasts.

Imagine that the Russians had captured Waffen SS Gruppenfuhrer Klaus Heinrich Schmidt in the summer of 1941 and put him on trial for, let’s say, ordering the massacre of civilians. And imagine that he was acquitted, because he was able to show that the massacre was actually ordered by another Gruppenfuhrer named Heinrich Klaus Schmidt.

Now what? Should the innocent Gruppenfuhrer Schmidt be sent back through the lines so he can resume fighting? I don’t think so. He goes to a PoW camp, to be held until the war is over. As a PoW, he has certain rights (he can’t be pressed for information other than name, rank, and serial number, or be forced to work) but the right to go back to fighting is not among them.

There was nothing criminal about fighting for the Taliban when the Taliban was the de facto government of Afghanistan. So it’s not hard to imagine that there are Taliban captives who are not war criminals. Arguably it was criminal to be a member of al-Qaeda, which was an organization devoted to mass murder, but proving membership and the requisite scienter (that he knew, or had reason to know, what his group was up to) with respect to any given individual might be hard, for example if the evidence is tainted by torture.

But not being a criminal is not the same as not being an enemy.

There’s a real problem about people being held as Taliban or al-Qaeda fighters who weren’t in fact combatants at all, but were merely turned in by bounty-hunters. But that’s a question for a status-determination hearing, not a trial.

And there’s the equally real problem that the fight against the Taliban and al-Qaeda is likely to go on for a long time; “until the war is over” could turn out to mean “until the Twelfth of Never.”

None of the huffing and puffing about “preventive detention of innocent people” makes those hard problems any easier. It’s not “preventive detention” to hold a PoW, and the fact that the PoW wasn’t wearing a uniform when captured doesn’t change that.

There is a class of people to whom the label “preventive detention” properly applies; people (who could be U.S. citizens or not) who have the intention to be terrorists but who aren’t members of any terrorist group with which we’re currently in armed conflict. You could make an argument that the special circumstances of terrorism necessitate a statute that would allow holding such people even if they can’t be proven to have committed the “overt act” that would turn their contemplation into conspiracy as the law understands it. That’s a case where civil liberties and security may clash head-to-head, and I’m prepared to come down on the civil-liberties side.

But the folks still at Gitmo aren’t in that category. Some of them are there due to mistake, and ought to be released; the others were members of groups engaged in warfare against the United States, and should be held as long as the conflict lasts, even if that turns out to be forever.

Update Lots of email on this, all of it (politely) very critical. Some of it sharpened my thinking, and some of it showed me I needed to sharpen my writing. Here goes:

1. The Taliban is more or less an army. It was an insurgent army, then it was part of the armed forces of Afghanistan, now it’s an insurgency again. Much of its activity involves deliberately killing civilians, which is a war crime, but being a Taliban fighter doesn’t make one a war criminal. We’ve been at war with the Taliban since our invasion in 2001; that invasion was triggered by the fact that the Taliban, as the government of Afghanistan, allowed Afghan territory to be used by al Qaeda as a location from which to organize the 9-11 attacks. That war might end; we might defeat the Taliban, the Taliban might drive us out of Afghanistan, or there might be some political compromise.

2. Al-Qaeda isn’t the army of any state, or of an insurgency that is trying to take over any state. But it is an entity devoted to carrying out attacks on both civilian targets (which is, generally, a war crime) and military targets such as the USS Cole (which is not, generally, a war crime, though al-Qaeda’s lack of uniforms, a formal command structure, and a government to report back to may make even its attacks on military targets unlawful). Al-Qaeda has been waging war on the United States at least since 1998. That, too, might end, though only if al-Qaeda ceased to exist as an organized entity.

3. Just thought of as enemy combatants, Taliban fighters can lawfully be held until the Taliban is no longer at war with the U.S., and al-Qaeda fighters until al-Qaeda is no longer at war with the U.S. The metaphorical “war on terror” is neither here nor there; if we settled our differences with the Taliban, we would be obligated to release Taliban fighters other than those who might be tried for crimes; we couldn’t just hold on to them on the theory that they might decide to join some other terrorist group. The same applies to wannabees; if they haven’t committed any crimes, and haven’t joined any armies, then they can’t be held.

4. Some of the people held at Gitmo and Bagram weren’t fighters at all; they were victims of mistaken identity or cynical bounty-hunting. They ought to be released, even if they’re now so mad at us that they would then pick up guns and come at us. Figuring out who’s who isn’t easy, and they’re certainly entitled to hearings at which they get to present evidence, but those hearings aren’t criminal trials, and the rules of criminal procedure don’t apply.

5. Others were fighters, or auxiliaries (e.g., drivers) but aren’t worth holding. That’s where the question of continued danger arises: not in legally justifying holding someone (which is based on his past conduct and membership) but in deciding whether it’s worth the effort. That’s still not “preventive detention.”

Now it’s possible that the Obama Administration has deferred to the desire of the Pentagon and the CIA not to release people who could, if released, tell about the horrible things that were done to them. To the extent that’s true, I disapprove. But the claim that, if we don’t at once release every captive we can’t convict of a war crime, the President will have the power to point at anyone and say “He’s a terrorist; let’s lock him up forever without a trial,” is nonsense. The Bushies were claiming those powers, but the current crew isn’t making any such claim.

Second update: Andrew Sullivan writes:

if these detainees are prisoners of war, they should surely be given full prisoner of war status. And their detention should be tied to how long the wars in Afghanistan and Iraq last, not to the Global War On Terror, which was designed to be never-ending.

I entirely agree. We’re at war with al-Qaeda and the Taliban; there is no fighting force called Terror, so we can’t be at war with Terror. When and if our fights with those specific organizations end, so should the captivity of their members. And the logic of treating captives as combatants rather than criminals dictates that they be given Prisoner of War treatment.

If there’s any evidence that the Obama Administration believes otherwise or is acting otherwise, I’ll be happy to join in the criticism. As far as I know, there isn’t, and in the absence of such evidence I don’t see any reason to attribute the mendacity and brutality of the Bush Administration to the Obama Administration.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com