Congress is considering legislation to extend habeas corpus
rights (i.e., the ability to challenge the legality of detention in
a civil court) to unlawful enemy combatants. Granting terrorists
rights to which they are not entitled will not make the world a
safer place and will not win over America's enemies and critics. Worst
of all, it will make armed conflicts more dangerous for soldiers
The current legal framework allows U.S. armed forces to do their
job without adversely affecting military effectiveness or going
against standards of international law. Congress should not
undermine the United States' ability to detain unlawful combatants
and, if appropriate, try them for war crimes.
Soldiers and the Laws of War
Separate laws regarding the conduct of war were established for
a reason: The environment of armed conflict differs significantly
from everyday civil society. Soldiers must be able to accomplish
the mission and obey rules of conduct while under stressful,
chaotic, and dangerous conditions. The laws of war also give
soldiers the legal means to deal with enemy soldiers, civilians,
and unlawful combatants who intentionally ignore the rules.
Encouraging Lawlessness in Armed
Granting unwarranted legal rights puts soldiers and civilians at
risk by rewarding treachery with privilege. Unlawful enemy
combatants--individuals who do not adhere to the traditional laws
or customs of war--are not entitled to Prisoner of War (POW) status
or the full protections of the Geneva Conventions, let alone
unfettered access to U.S. courts. Summarily granting them these
privileges would cripple the integrity of the laws of war. Enemies
will be less inclined to follow the rules if they suffer no
consequences for breaking them. Contrary views rely on
guilt-ridden, utopian thinking that says America deserves her
enemies and that they will love and forswear violence against her
if only she just meets some indeterminate but much higher standard
of justice and fair play. When only one side plays by the rules on
a battlefield, that side is likely to disproportionately suffer
from illegal acts of war.
Impeding the Effectiveness of Military
Soldiers have a number of equally compelling responsibilities in
war: accomplishing the mission, safeguarding innocents, and
protecting their fellow soldiers. These tasks are difficult enough.
Soldiers should not be required to provide to unlawful combatants,
in the same manner and to the same extent as would be expected of a
civil court, the full array of civil protections afforded to U.S.
citizens by the Constitution and created by judges since the 1960s.
For example, it is highly unrealistic to expect soldiers during
active operations 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
hand, meet novel legal standards that might result in prematurely
releasing war criminals who will go back to the battlefield.
Crippling Intelligence Gathering
Gaining timely, actionable information is the most powerful
weapon in uncovering and thwarting terrorist plots. Requiring the
armed forces to place detainees under a civilian legal process will
severely restrict their access to detainees and, in turn, cripple
their capacity to obtain intelligence through legitimate, lawful
Military authorities are giving Gitmo detainees treatment that
is as good as or better than that typically afforded to U.S.-held
POWs. The only real difference is that Gitmo detainees may be
interrogated for more than name, rank, and serial number.
Changing the legal framework governing 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,
such action is not required by the U.S. Constitution. 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
The Department of Defense already operates two tribunals that
safeguard the legal rights of detainees. The Combatant Status
Review Tribunal (CSRT) uses a formal process to determine whether
detainees meet the criteria to be designated as enemy combatants.
Tribunals known as Administrative Review Boards (ARB) ensure that
enemy combatants are not held any longer than necessary. Both
processes operate within the confines of traditional law-of-war
tribunals and are also subject to the appeals process and judicial
review. In addition, Congress has established a process under the
Military Commissions Act to allow the military to try any non-U.S.
detainees for war crimes they are alleged to have committed.
Imposing U.S. civil procedures over the conduct of armed
conflict will 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 United States'
image abroad, and the realities of war.
U.S. military legal processes are on par with or exceed the best
legal practices in the world. While meeting the needs of national
security, the system respects individuals' rights and offers
unlawful enemy combatants a fundamentally fair process that is
based on that afforded to America's own military men and women.
Having proven itself in past conflicts, the current legal framework
can continue to do so in a prolonged war against terrorism.
Jay Carafano, Ph.D., is Assistant Director of the
Kathryn and Shelby Cullom Davis Institute for International Studies
and Senior Research Fellow for the Douglas and Sarah Allison Center
for Foreign Policy Studies at The Heritage Foundation.
 In his recent
commentary in The Observer, Hassan Butt, a self-confessed
former member of "what is probably best termed the British Jihadi
Network," dismantles the myth that Islamic terrorists are motivated
to engage in acts of terror primarily by U.S. foreign policy
failures or by any (real or supposed) American failures to provide
Western-style due process. Hassan Butt, "My Plea to Fellow Muslims:
You Must Renounce Your Terror," The Observer, July, 1, 2007, at
He writes: "[W]hat drove me and many of my peers to plot acts of
extreme terror within Britain, our own homeland, and abroad was a
sense that we were fighting for the creation of a revolutionary
state that would eventually bring Islamic justice to the world."