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Impunity for al-Qaeda
The Implications of a Bad Ruling on 'Unlawful Enemy Combatants'

By David B. Rivkin Jr. and Lee A. Casey
Monday, July 2, 2007

The federal appeals court in Richmond should quickly grant the Justice Department's request that it reconsider last month's decision in the case of Al-Marri v. Wright-- a decision that denied the existence of the legal category "unlawful enemy combatant" in America's conflict with al-Qaeda. (This question is not, it should be noted, at issue in the Guantanamo detainee cases that the Supreme Court has just agreed to hear in the fall.)

The reasoning in the Al-Marri case was deeply flawed, and if widely adopted it would undermine a fundamental purpose of the laws of war: avoiding impunity for war crimes. The ruling not only weakened America's national security but opened the possibility that no body of law applies to conflicts between non-state actors -- which would make it impossible, for example, to prosecute the Hamas gunmen who recently murdered Fatah fighters and wantonly killed Palestinian civilians in Gaza.

The case involved the detention of Ali Saleh Kahlah al-Marri, a man the United States believes to be an al-Qaeda agent and has held since 2003 as an enemy combatant. Two of three 4th Circuit judges concluded that because al-Qaeda is not a state, Marri must be treated as a civilian criminal defendant. They claimed this position was supported by the Supreme Court's statement in Hamdan v. Rumsfeld that the war in Afghanistan is only an internal conflict -- and further claimed that the legal classification of enemy combatant, as opposed to civilian, does not exist in such conflicts.

Their sole authority for this conclusion was a 2005 statement by the International Committee of the Red Cross (ICRC), a persistent critic of America's war on terror, that "[i]n non-international armed conflict combatant status does not exist." Ironically, for years the ICRC tried to achieve some type of combatant status for non-state participants in internal conflicts, fearing that most countries would treat them far more harshly as civilian criminal defendants. Moreover, its 2005 assertion that combatant status does not exist in internal conflicts -- especially as construed in A l-Marri-- is inconsistent with its own earlier (and more authoritative) commentary on the Geneva Conventions.

In 1960 the ICRC addressed Geneva's "Common Article 3" on internal armed conflicts and acknowledged that "the conflicts referred to in Article 3 are [generally] armed conflicts, with armed forces on either side engaged in hostilities -- conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country." "Armed forces" and "hostilities" are legal terms that imply -- indeed, require -- recognition that the category of enemy combatant exists in internal armed conflicts.

The court made an equally serious error in suggesting that the United States can be at war with al-Qaeda only when that group is affiliated with a foreign government. Although nations rarely invoke the laws of war with regard to non-state actors, the legal basis of such conflicts is well established. The Supreme Court has held that the United States could be at "war" with non-state entities such as Indian tribes. It also recognized during the Civil War -- another conflict between the United States and a non-state -- that whether the United States is at war, and with whom, is a question reserved to the political branches, in particular to the president. Under the Al-Marri reasoning, everyone fighting for the South during the Civil War was a civilian because none was "affiliated with recognized nation states."

To distinguish A l-Marri from its earlier decision involving alleged al-Qaeda operative Jose Padilla, who was an enemy combatant, the court asserted that Padilla fought alongside the Taliban -- and characterized the Taliban as the "de facto" government of Afghanistan. This is a type of diplomatic recognition that the United States (and the international community generally) denied to that barbaric militia. The Constitution, of course, gives the president the right to grant or withhold such recognition. More important, under the 4th Circuit's rationale, the United States is not now engaged in a legally cognizable armed conflict with al-Qaeda -- with its Taliban patrons on the run, al-Qaeda has no governmental affiliation, except the self-styled "Islamic State of Iraq."

The implications are profound. Application of the laws of war governs the detention of enemy combatants but also creates the legal justification for the initial use of armed force. Only if the laws of war apply can the United States lawfully take the offensive against al-Qaeda, seeking out and attacking with deadly force its operatives in Afghanistan, Iraq and elsewhere. Congress's post-Sept. 11 authorization for the use of military force properly invoked this legal regime. Moreover, if the laws of war do not apply to conflicts involving non-state actors, there is no legal regime governing conflicts between groups in areas -- such as Gaza -- where there is no recognized state authority. This is true impunity.

By substituting its will for that of Congress and the president, the court's decision would strip the initiative from U.S. forces and transform the war on terror into a reactive policing function -- exactly the posture America was in on the morning of Sept. 11, 2001. As Justice Robert Jackson wrote long ago, for all its obvious virtues the Constitution is not a suicide pact. The court should quickly overturn this decision so that Jackson's words will continue to be true.

The writers are Washington lawyers who served in the Justice Department during the administrations of Ronald Reagan and George H.W. Bush.

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