The Washington Post

July 06, 2003

FIGHTING THE WAR on terrorism has forced the government to confront profoundly vexing questions concerning the people it captures. Are al Qaeda members criminals who should be prosecuted, members of a strange species of foreign army, or somehow both? And if, as U.S. authorities quickly concluded, they are both, when should they be treated as criminals in civilian courts, when should they go before military tribunals and when should they be held with no trial at all and under what circumstances? We would have hoped that nearly two years after the 9/11 attacks, the Bush administration would have made a stab at addressing these questions. And in a sense, it has: It is claiming the authority to unilaterally decide how any captive is legally designated and held -- and to unilaterally change that designation at any time. This system is convenient for the government, offering all of the legitimacy the criminal justice system can confer without any of its discipline. As a legal regime, however, it is unacceptable.

Consider, for example, the disparity between the way the government handled its two big recent terrorism arrests. The Justice Department reached a plea deal with a man named Iyman Faris, a naturalized American truck driver living in Ohio who looked into destroying the Brooklyn Bridge and conducting an attack in Washington on behalf of al Qaeda. Mr. Faris was prosecuted in federal court in Virginia. Federal court, however, was too good for a Qatari student named Ali S. Marri. Like Mr. Faris, Mr. Marri is a suspected al Qaeda operative; he arrived in this country the day before the 9/11 attacks. And like Mr. Faris, he was initially prosecuted using the normal criminal system for lying to the FBI and for credit card fraud. But last week, less than a month before his trial was to start, the Justice Department dropped charges against him, and President Bush redesignated him as an "enemy combatant." His new status allowed the government to whisk him off to a military brig, where he can now be held indefinitely and interrogated. The government can charge him at its leisure in a military tribunal -- if it chooses to. Why the difference? The answer has nothing to do with any recognizable legal principle. The government's position, after all, is that either man could be dumped into either system. The real distinction seems to be that Mr. Faris agreed to cooperate, while Mr. Marri was going to trial and so could not be interrogated for intelligence.

We are not opposed to treating certain al Qaeda prisoners as enemy combatants. The laws of war recognize that governments capture enemy fighters during wartime and keep them locked up -- though the Geneva Conventions mandate procedures that the administration has unwisely failed to follow strictly. The dangers -- both to national security and to civil liberties -- of trying some al Qaeda suspects in federal court are sufficient that some may have to be removed to military custody, as we have urged in the case of Zacarias Moussaoui. But there has to be some principle that guides these decisions -- other than what move best serves the government's interests at any given moment. Otherwise the law becomes a mere instrument of arbitrary state power, not a predictable system of ordered liberty. Among other dangers, the threat of designation as an "enemy combatant" -- and the consequent indefinite detention -- can too easily become a club to threaten defendants who will not plead guilty or cooperate.

More broadly, there has to be some publicly defined process for handling enemy combatants, so that the status is not simply a legal black hole. In a conventional war, enemy fighters are held until the combatant states negotiate a peace, at which point they are repatriated. But this war may never end, and if it does, it will not be with a peace treaty between the United States and al Qaeda. The laws of war provide an incomplete framework for handling the detainees at Guantanamo Bay, Cuba, and the administration is going to have to fill in the gaps. Yet even after being spurred on by complaints from allied governments, it has sent home only about 40 detainees, it has charged none before tribunals and it has not begun to specify what it will do in the long run with those it does not charge but deems too dangerous to repatriate. President Bush last week designated six unnamed detainees as eligible for trial before tribunals, and this is a positive sign. But the administration needs to develop clear standards governing both the legal designation of detainees and what happens to those placed beyond the reach of conventional American law.