The war against terrorism is too important to be left to the military. Though President George W. Bush cast a wide net in declaring that war, he seems content to leave critical legal and diplomatic questions to military judgment. The Pentagon’s decision to hold certain Taliban and Al Qaeda prisoners at the U.S. naval base in Guantánamo, Cuba, has raised a storm of protest, particularly among our closest allies (Britain has demanded that three of its citizens be returned for trial there). This is in line with objections to the administration’s earlier plan to put captured terrorists before secret military tribunals where they would be subject to the death penalty (see, Anne-Marie Slaughter, "Terrorists on Trial," December 7, 2001). As the Justice Department and legal experts worked on that proposal, there has been steady backtracking, and the two men thus far indicted for terrorism, Zacarias Moussaoui and Richard Reid, will be tried in U.S. civil courts.
Objections now extend beyond the tribunals to the status and treatment of "unlawful combatants," the 158 prisoners at Guantánamo and 302 others still held in Afghanistan. Defense Secretary Donald Rumsfeld and the Pentagon currently refuse to designate them prisoners of war according to the Geneva Accords, or to provide hearings that would distinguish among them (it is possible that the Taliban, though not Al Qaeda combatants, would qualify). Rumsfeld dismisses the criticism by claiming that the treatment of the men held at Guantánamo is equivalent to that of prisoners of war. That is not true at least in this respect: interrogation-a primary reason for holding the men-would be severely limited.
At his January 22 press conference, Rumsfeld made as reasonable a case as he could for his decision on their status and for the eight-by-eight-foot cyclone fence pens in which the prisoners are held, calling their treatment "humane." Rumsfeld and the Pentagon seem convinced that they are preserving important legal distinctions between prisoners of war and unlawful combatants, and that they will acquire important information about terrorist plans and networks. These are important issues, but more is at stake.
The status and treatment of these "unlawful combatants" is subject to international law and to worldwide scrutiny. Secretary of State Colin Powell, attuned to the diplomatic and international legal issues, has asked the White House to apply the Geneva Accords’ criteria to help distinguish between those who qualify as prisoners of war and those who do not. Powell understands that the rule of law is at stake in the war against terrorism, as is "a decent respect for the opinions of mankind." The president is reconsidering. The image of prisoners kept in the equivalent of animal pens seems not to have penetrated the sensibilities of the president or his secretary of defense. War criminals and terrorists though they may prove to be, the prisoners are entitled to one of the protections agreed to in the Geneva Accords-a hearing to decide whether they qualify for POW status. The president’s decision here inevitably figures in whether we are seen as a nation that respects international law or acts as if it is above that law. The struggle against terrorism is far too important to be left, in this case, to the narrow focus of the Pentagon and to the image of animal pens in Guantánamo.