The Detention and Trial of Unlawful Combatants
Testimony of James Jay Carafano
Senate Armed Services Committee
July 19, 2006
Mr. Chairman and other
distinguished Members of the committee, thank you for the opportunity to testify before
you today on the U.S. government's proposal to try unlawful
combatants by military commissions in light of the Supreme Court
decision in Hamdan v. Rumsfeld.
What I would like to do in my testimony is: (1) describe how this
decision fits in the context of how America ought to fight the war
on terrorism; (2) make the case that Congress ought to ratify
the president's discretion to use military commissions to try
these types of unlawful combatants and the offenses charged, and
grant the greatest discretion to this and future presidents to
establish just rules for such tribunals consistent with national
security; and, (3) suggest how the Bush Administration's proposal
for commissions could be amended to satisfy legitimate
Winning the Long
My view of what
the Congress should do is tempered by a 25-year military career as
a soldier and strategist. In deciding how to move forward after
Hamdan v. Rumsfeld, strategy matters. While Congress and the
Bush Administration must a find a remedy that is consistent with
the demands of the Constitution, satisfying the rule of law is not
enough. The best solution is one that is consistent with how the
law in free societies should be used in wartime, and an approach
that supports the national strategy.
was right to argue that the concerted effort to destroy the
capacity of transnational groups who seek to turn terrorism into a
global corporate enterprise ought to be viewed as a long war.
Identifying the war on global terrorism as a long war is important,
because long wars call for a particular kind of strategy-one that
pays as much attention to protecting and nurturing the power of the
state for competing over the long term as it does to getting the
strategies that ignore the imperative of preserving strength for
the fight in a protracted conflict devolve into wars of attrition.
Desperate to prevail, nations become over-centralized,
authoritarian "garrison" states that lose the freedoms and
flexibility that made them competitive to begin with.
In contrast, in prolonged conflicts such as the Cold War, in which
the United States adapted a strategy that gave equal weight to
preserving the nation's competitive advantages and standing fast
against an enduring threat, the U.S. not only prevailed, but
thrived emerging more powerful and just as free as when the
stand-off with the Soviet Union began.
The lessons of
the Cold war suggest that there are four elements to a good long
(1) providing security,
including offensive measures to go after the enemy, as well as
defensive efforts to protect the nation;
(2) economic growth,
which allows states to compete over the long term;
(3) safeguarding civil
society and preserving the liberties that sustain the will of the
(4) winning the war of
ideas, championing the cause of justice that, in the end, provides
the basis for an enduring peace.
lesson of the Cold War is that the best long war strategy is one
that performs all of these tasks equally well.
I want to
highlight the elements of long war strategy, because the successful
prosecution of three of them-providing security, protecting civil
society, and winning the war of ideas-will depend in part on well
Congress moves forward after in Hamdan v. Rumsfeld. Congress
should authorize military commissions in a manner that respects
equally all three of these aspects of fighting the long war.
There are three
issues at stake in ensuring the nation has the right instruments
for fighting the long war. First, military commissions must be
conducted in a manner that optimizes meeting national security
interests. Second, the principle of law that protects both U.S.
soldiers and civilians on the battlefield must be preserved. Third,
the power of the Executive Branch to adapt and innovate to meet the
challenges of war should not be encumbered.
In order to
optimize national security interests, I would argue against using
the Uniform Code of Military Justice (UCMJ) as a basis for
authorizing military commissions for trying unlawful combatants.
The UCMJ is structured as a traditional legal system that puts the
protection of the right of the individual foremost, and then adds
in accommodations for national security and military necessity.
Such a system is not at all appropriate for the long war. For
example, Article 31(b) requires of the UCMJ requires informing
servicemen suspected of a crime of their Miranda Rights. The
exercise of Miranda Rights in impractical on the battlefield.
Hearsay evidence is prohibited in court martial. On the
battlefield, much of the collected intelligence that the military
acts on is hearsay. In fact, reliable hearsay may be the only kind
of evidence that can be obtained about the specific activities of
combatants. Likewise, overly lenient evidentiary rules make sense
when trying a U.S. soldier for a theft committed on base, but not
when someone is captured on the battlefield and is being tried for
war crimes committed prior to capture, perhaps in another part of
Rather than seek
to amend courts-martial procedures to address security concerns, I
believe it would be preferable to draft military commissions that
put the interests of national security first, and then amend them
to ensure that equitable elements of due process are included in
I also believe
that for the protection of both soldiers and civilians, the
distinction between lawful and unlawful combatants be preserved as
much as possible. If we respect the purposes of the Geneva
Conventions and want to encourage rogue nations and terrorists to
follow the laws of war, we must give humane treatment to unlawful
combatants. However, we ought not to reward them with the
exact same treatment we give our own honorable
soldiers. Mimicking the UCMJ sends exactly the wrong
Finally, the Executive Branch's power to wage
war ought not to be unduly encumbered. If there is one truism in
war, it is that conflict is unpredictable. Carl von Clausewitz, the
great 19th century Prussian military theorist called it the
"friction of battle." Clausewitz also said that "everything in war
is simple, but in war even the simple is difficult." That is why in
drafting the Constitution, the framers gave wide latitude to the
Executive Branch in the conduct of war. They recognized that the
president needed maximum flexibility in adapting the instruments of
power to the demands of war. In bounding the president's
traditional war powers, Congress should take a minimalist
Respecting the Rule of Law
After September 11, the Bush Administration's
critics framed a false debate that indicated that citizens had a
choice between being safe and being free, arguing that virtually
every exercise of executive power is an infringement on liberties
and human rights. The issue of the treatment of detainees at
Guantanamo Bay has been framed in this manner. It is a false
debate. Government has a dual responsibility to protect the
individual and to protect the nation. The equitable exercise of
both is guaranteed when the government exercises power in
accordance with the rule of law.
In the case of the military tribunals, the
Supreme Court has outlined a rather narrow agenda for Congress to
ensure that the rule of law is preserved. As legal scholars
David Rivkin and Lee Casey rightly pointed out in a June 30, 2006
Wall Street Journal editorial: "All eight of the justices
participating in this case agreed that military commissions are a
legitimate part of the American legal tradition that can, in
appropriate circumstances, be used to try and punish individuals
captured in the war on terror[ism]. Moreover, nothing in the
decision suggests that the detention facility at Guantanamo Bay
must, or should, be closed."
No detainee was ordered to be released. Nor was their designated
status as unlawful combatants (who are not entitled to the same
privileges as legitimate prisoners of war who abide by the Geneva
Conventions) called into question. The Supreme Court did not so
much as suggest that the non-citizen combatants held at
Guantánamo must be tried as civilians in American civilian
courts. Nor did it require that detainees be tried by courts
martial constituted under the UCMJ.
In addition, while the Court held that the
basic standards contained in common Article 3 of the Geneva
apply, it should be pointed out that the Geneva Conventions have
been honored, except-according to the Supreme Court-in the way the
military commissions were established. Common Article 3
requires a floor of humane treatment for all detainees. Granted,
some of the language in Common Article 3 is vague and subject to
varying interpretations. For the purposes of this discussion the
most relevant issue is the interpretation of the phrase that
treatment should include "judicial guarantees which are recognized
as indispensable by civilized peoples." This requires some due
process, such as the type of due process the status review boards
and military commissions provide. If Congress explicitly ratifies
the military commissions, then a majority of the Court would uphold
them as consistent with the Geneva Conventions. This should satisfy
U.S. obligations under the treaty.
Thus there is no reason for Congress to
require courts-martial under the UCMJ, to draft guidelines for new
commission procedures, or to partially overrule or repeal our
ratification of the Geneva Conventions. Congress also appears to
have approved the president's military commissions in the Detainee
Treatment Act in December of 2005, although the Court has ruled
this authorization is not sufficiently specific. I would suggest
that nothing has changed in the past few months that should alter
the sense of Congress.
It should also be understood that military
commissions are intended for limited use. We should not try most
detainees. We should simply
detain most of them until hostilities are concluded or they are no
longer a threat. A separate administrative review process is used
to determine whether further detention is warranted, or for
example, whether the detainee is an innocent non-combatant.
The Court never said detention was improper. We should only try
those who are war criminals, and we have bent over backward to give
them due process-perhaps too much. It might even be best to delay
their war criminal trials, as we have in many wars, until the end
of hostilities. That, however, is something that traditionally has
been, and should be, left to the president's discretion.
Winning the War of Ideas
authorizing military commissions, Congress can also make a useful
contribution to winning the war of ideas. The Court's decision has
been portrayed across much of the world as a huge defeat for the
Bush Administration and a repudiation of its decision to hold
unlawful combatants. The ruling will, no doubt, be used by al-Qaeda
and its affiliates as a major propaganda tool. It will also give
ammunition to America's harshest critics on the international
stage. In particular, the decision is likely to exacerbate tensions
in the trans-Atlantic relationship. Washington has been
increasingly under fire from European Union (EU) officials and
legislators about Guantánamo. The EU's External Relations
Commissioner, Austria's Benita Ferrero-Waldner, has called for the
Guantánamo detention facility to be closed, and the European
Parliament passed a resolution urging the same. The EU's
condemnation of the Guantánamo facility has echoed those of
the United Nations Committee Against Torture and the U.N.'s hugely
discredited Commission on Human Rights, which condemned the
detention facility without even inspecting it. Now, these groups
are trumpeting the Supreme Court's decision.
critics have largely ignored what the Court's decision actually
says. The approval of the Congress and affirmation by the Court
that the commissions represent the will of the American people
demonstrate our resolve both to take the threat of transnational
terrorism seriously and to respect the rule of law.
What Must Be
Also unchanged is
the government's obligation to devise an equitable long-term
solution that fairly executes justice while fully satisfying our
national security interests. What is needed is a process that does
not treat unlawful combatants as regular criminals or traditional
prisoners of war. That would simply reward individuals for breaking
the rules of the civilized world. Most Guantánamo detainees
are not currently set to be tried for war crimes, and they may
continue to be detained with only minor changes to the
administration's status determination proceedings. For those
scheduled to be tried for war crimes, the Bush Administration must
follow existing courts-martial rules or seek explicit congressional
approval for the planned military commissions.
satisfy its legal and national security obligations explicitly by
authorizing the proposed military commission process. What is
critical is that the Bush Administration move forward
expeditiously, demonstrating once again its unswerving commitment
to fight the long war according to the rule of law.
Carafano, Ph.D., is Senior Research Fellow for
National Security and Homeland Security in the Douglas and Sarah
Allison Center for Foreign Policy Studies, a division of the
Kathryn and Shelby Cullom Davis Institute for International
Studies, at The Heritage Foundation. This testimony was delivered
before the Senate Armed Services Committee.
- In deciding how
to move forward after the Supreme Court decision in Hamdan v.
Rumsfeld, strategy matters.
- The lessons of
the Cold War suggest that there are four elements to a good long
war strategy. The U.S. should focus on providing security,
fostering economic growth, safeguarding civil society and
preserving the liberties that sustain the will of the nation, and
winning the war of ideas.
- What is needed is
a process that does not treat unlawful combatants as regular
criminals or traditional prisoners of war.
and the Bush Administration must move forward expeditiously,
demonstrating once again its unswerving commitment to fight the
long war according to the rule of law.