July 13, 2007 | Commentary on National Security and Defense

Rights Are Wrong: Dealing with terrorists.

Sure, terrorists may want to blow up your kid's school and decapitate you. But never forget that they have rights. And they'll have even more if some in Congress have their way.

Lawmakers are considering legislation that would give "unlawful enemy combatants" habeas-corpus rights (i.e., the ability to challenge their detention in a civil court). But civil law has never governed the conduct of war - and with good reason.

Warfare isn't the same as civil society. Just as an army cannot function effectively as a democracy ("Okay, boys - how many think we should attack at dawn?"), so the laws of war cannot mindlessly mirror the tenets of civic jurisprudence. They are designed to give soldiers the legal means to deal effectively and humanely with enemy soldiers, civilians, and, importantly, unlawful combatants - those who intentionally violate the rules.

Granting terrorists rights to which they are not entitled wouldn't make the world a safer place and wouldn't win over our enemies and critics. Worse, it would make armed conflicts more dangerous for soldiers and civilians.

The current legal framework allows U.S. armed forces to do their job without hampering military effectiveness or flouting standards of international law. Congress shouldn't undermine their ability to detain unlawful combatants and, if appropriate, try them for war crimes.

Soldiers have several equally compelling responsibilities in war: accomplishing the mission, safeguarding innocents, and protecting their fellow soldiers. These tasks are difficult enough.

Our warriors shouldn't be required to provide to unlawful combatants - in the same manner and to the same extent they'd have to in a civil court - the full array of civil protections afforded to U.S. citizens by the Constitution (along with those created by judges since the 1960s).

For example, it is highly unrealistic to expect soldiers on the battlefield to collect evidence and insure the integrity of the chain of custody for that evidence. American soldiers would effectively face a Hobson's choice: On one hand, win the war, bring fellow soldiers home, and safeguard innocents. Or, on the other, meet novel legal standards that might result in the premature release of war criminals who will go back to the battlefield.

In fact, granting unwarranted legal rights would put soldiers and civilians at risk by rewarding their treachery with privilege. Unlawful enemy combatants - individuals who do not adhere to the traditional laws or customs of war - have never been entitled to Prisoner of War status or the full protections of the Geneva Conventions, let alone unfettered access to U.S. courts. When only one side plays by the rules on a battlefield, that side is likely to disproportionately suffer from illegal acts of war.

And it's not as if today's detainees are being mistreated.

Military authorities are already giving detainees at Guantanamo Bay treatment as good as or better than what U.S.-held POWs typically receive. The only real difference is that Gitmo detainees may be interrogated for more than name, rank and serial number.

Changing the legal framework that governs unlawful combatants is simply unnecessary. The military is already meeting its obligations to deal justly with individuals in its custody.

Since the inception of the Geneva Conventions, no country has ever given automatic habeas corpus rights to POWs. Furthermore, the Constitution doesn't require such action.

The Supreme Court ruled in 2004 that, at most, some detainees were covered by a statutory privilege to habeas corpus. The Court concluded, in other words, that Congress had implicitly conferred habeas corpus rights to certain individuals. However, the Military Commissions Act of 2006 repealed that privilege and, so far, Congress has not acted to restore it. Lawmakers shouldn't do so now.

Imposing U.S. civil procedures over the conduct of armed conflict would damage national security and make combat more dangerous for soldiers and civilians alike. The drive to do so is based on erroneous views about the Constitution, the America's image abroad and the realities of war.

Our enemies are the ones who need to improve their image. They should start abiding by the rules of war. How about no more ambushes with IEDs? No more slaughtering of civilians? No more random mortar attacks on Baghdad's Green Zone?

Simply put, there's no reason to grant our enemies access to our civil rights even as they're trying to kill us - any way they can.

James Jay Carafano is senior research fellow on national security issues at the Heritage Foundation.

About the Author

James Jay Carafano, Ph.D. Vice President for the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, and the E. W. Richardson Fellow

First appeared in the National Review