July 13, 2007
By James Jay Carafano, Ph.D.
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
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
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
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
Carafano is senior research fellow on national security issues
at the Heritage
First appeared in the National Review
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.
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
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