I recently returned from meetings on the law of armed conflict in San Remo and Geneva that provided me the unique opportunity to meet with and discuss various legal issues associated with the Global War on Terror (GWOT). I met with government officials from around the world, nongovernmental organization representatives like Human Rights Watch and ICRC, and international-law scholars. As one might expect, there was sharp disagreement on many issues. But all agreed upon one thing: The U.S. must do something regarding the detainees at Guantanamo Bay–and do something now.
The new world (dis)order in which the U.S. must now function as the sole superpower is terribly complex, and the situation is further exacerbated by the American discomfort in its role as an empire–we appear uncertain how to “behave” among our other nations. We consistently balance our strength and sovereignty while functioning within the international community and attempting to comply with international law. Gitmo offers the perfect opportunity for the United States to resolve her identity crisis and reestablish herself as a noble superpower. The GWOT is going to be a long-term effort and it is critical to maintain the support of the international community and the NGOs.
Though the administration has performed exceedingly well in balancing myriad issues the last four years, some changes are necessary to improve our ability to conduct operations into the foreseeable future. Three crucial steps will help to gain the requisite national support and international consensus: 1) Article 5 tribunals need to be held immediately for all detainees; 2) the U.S. must establish national-security-court apparatus not very different from Great Britain and France; 3) The U.S. needs to lead the effort in modifying Geneva to better handle the legal issues associated with the jihadists.
ARTICLE 5 TRIBUNALS
First, we must admit the current situation in Gitmo at the least, appears unjust. Five hundred detainees with no hearing for over four years seems unfair to our international partners–and becomes a breeding ground for misinformation and propaganda for al Qaeda and jihadist supporters. We need to provide these people, as I was reminded by every person I have spoken with this past week, with Article 5 Tribunals to determine whether they should be afforded POW status. This system is provided for in the Geneva Conventions: an established way of ascertaining the status of those captured. We have refused to give the detainees this option, but these are quick “hearings” and could be accomplished with relative alacrity and few resources. Most, if not all, will not be given POW status, but the appearance of due process is critical to our international partners.
The military commissions, as much as they should have worked (and are constitutional and comply with international law), have not been successful. Although the case most often cited to support the use of commissions, Ex Parte Quiran, is on point, the current use of the courts has been bogged down in procedural problems, evidentiary concerns, and four years without a prosecution (which was clearly never intended). For example, in the Quiran case, the German saboteurs were captured, tried by military commission, had habeas petitions heard by the Supreme Court, were convicted and executed in under 50 days. Currently, we have waited four years for a trial. Although it has just been announced that several commissions hearings will begin in the immediate future, we still need a long term established mechanism to try rapidly the remaining 450 detainees and for inevitable future cases. France, Great Britain, Israel. and others have special terrorist courts in place. These nations, like the U.S., recognize these are not ordinary cases and need to be handled differently than standard criminal prosecutions. The national-security court would function as a hybrid of the military commissions and our federal court system–a decreased expectation of rights at trial but still much more than is currently afforded to the detainees at Gitmo. The courts would be presided over by a recognized law of armed-conflict experts appointed by the president, and if convicted, the terrorist would be sent to military brigs. The U.S. must establish national-security courts to handle these cases expeditiously and resolve the ambiguity and international cynicism surrounding Gitmo. The GWOT will be part of our lives for a generation; these courts will help to prosecute fairly those accused of engaging in international terror.
The asymmetric war we are fighting against terror will continue to dominate geo-political debate in the West. The conflict of the 21st century will likely be fought by this generation’s children and grandchildren. While establishing national-security courts domestically, internationally the U.S. needs to take the lead in calling for modifications to the Geneva Conventions. Drafted in 1949, they were never intended for war like this one on terror. They were drafted during the age of the nation state and thus, al Qaeda and other jihadists retain an ambiguous status as either “warrior” or civilian. My colleagues all seem to agree there is a “hole” in the laws of war and that we are trying to push a “round peg into a square hole.” The U.S. should emerge as calling for a commission to analyze, provide guidance, and attain international consensus as to how best categorize these illegal belligerents.
Thus, the U.S., uncomfortable in its role as the sole superpower in a new, dynamic world, has an opportunity to re-establish itself as the shining city on the hill. This is a new war in a new era: We are all trying to figure out how best to proceed. Let us take Gitmo, a public-relations problem, and turn it around to demonstrate American and Western ideals. The last two weeks in Europe have affirmed, in my mind, that the international community does want us to lead–and we need them in order to win this war. The three steps listed above will start us in the right direction.
–Glenn Sulmasy is an associate professor of law at the U.S. Coast Guard Academy. He specializes in international and national-security law. The views expressed herein are his own.