Dr. Walid Phares
Are We at War or Prosecuting Criminals?
November 28, 2008

Last Thursday’s order by a federal judge to release five Algerian detainees from Guantanamo Bay prison reopens the complex debate about the principle of holding prisoners of war during wartime. But, and this may be even more important, it also reopens the debate inside the three branches of government in the United States over whether or not our nation is actually at war.

The case at hand will certainly be discussed by legal specialists on both sides of the debate. Here is the chain of legal events that will be scrutinized: The first "civilian court” ruling -– for terrorism suspects who have challenged their detention –- found that the five men "could not be held indefinitely as enemy combatants.” Thus, in this instance U.S. District Judge Richard J. Leon has essentially informed the government that failing an official and legally declared war, one cannot detain individuals who have not been proven guilty of crimes or of material participation in terrorism.


Last summer the Supreme Court granted the Guantanamo detainees (see the Boumediene case) "the right to challenge their imprisonment.” The real statement there was that since there is no legal basis for the War on Terror, the so-called "prisoners of war” are in fact detained under the principles of criminal law not the international law of war.

So when U.S. forces arrest individuals suspected of being enemy combatants the government must prove that each individual was actually waging war. But since civilian courts do not recognize the "existence” of such war, the government must prove that each person detained was physically involved in an illegal act leading to violence against the United States or its allied interests.

Judge Leon ruled that the U.S. government "failed to prove that five of the six Algerians held at Guantanamo Bay since January 20, 2002, were enemy combatants headed to Afghanistan to fight against the United States.” According to FOX News, "a senior Department of Defense official said the government’s case was hampered because the CIA would not hand over the classified information it had obtained in interrogating the 6 suspects.” If the CIA had released the evidence, would the court have ruled otherwise?

What these legal developments tell us is that the United States’ counterterrorism campaign is squeezed between two worlds: On the one hand, our nation’s leaders have been acting as if we are in a state of war with an enemy; and on another hand the Judicial system is telling us that it is basing its rulings solely on criminal law.

Meanwhile the Jihadists are winning. They meet U.S. forces on the battlefield and ask to be treated under the Geneva Conventions — which they do not recognize to begin with. If they are apprehended and brought into custody, they expect to swim through the legal system. In conventional wars, when a unit from the enemy forces is captured, the courts do not rule on each fighter’s particular posture at the time of capture. When you listen to the judges’ rulings on the detainees’ individual cases, they appear to be on solid ground, upholding the Constitution. But when you contrast their rulings with the government’s view then the process seems tragicomic.

A state of war with an enemy has its own logic and its own procedures. Enemies are kept under the Geneva Conventions’ protection until the conflict ends. War criminals are tried under international law. Fighters or enemy combatants cannot be tried in civilian courts as criminals. But if there is no state of war, then there shouldn’t be detention centers to begin with. Apprehended criminals are processed under the laws of the land and courts are sovereign in dealing with the fate of each and every suspect under arrest. In short we can’t have two legal tracks at once. — Either the U.S. is at war with a global enemy or is it not.

The Bush administration has struggled with the legal consequences of its War on Terror. The Obama administration will inherit the issue and must make a decision. It can continue with the hybrid system we have now, perhaps pushing it further towards a criminal procedure while U.S. forces wage a full-fledged war in Afghanistan –- if not elsewhere. If America won’t withdraw from the region as requested by Al Qaeda and Iran –- she will continue to find herself in a confrontation with her enemies some of whom may be captured. What lies ahead for the United States will be more complicated than even our current situation.

My advice to the forthcoming administration is to begin at the top, where the current administration has stopped: Identify the enemy and take a stand on the global conflict.