The rule of law

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...

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