Why Al Qaeda Members Should Not Be Treated As Enemy Combatants

News that Sulaiman Abu Ghaith – son-in-law of Osama bin Laden and a top al Qaeda spokesman – has been brought to the United States after his capture in Jordan and charged with conspiracy to kill Americans has met with opposition among neoconservatives. Senator Lindsey Graham said: “I think we are setting a new precedent that will come back to bite us. It's clear to me they snuck him in, if he is here, under the nose of Congress.” Senator Kelly Ayotte agreed, saying: “If you are that close to bin Laden, we want to develop all the information that person has.” Instead of being tried on criminal charges in a United States court, these opponents of the Obama administration’s move wish Abu Ghaith to be detained at Guantanamo Bay and tried – if at all – by a military tribunal.

The strategy of fighting terrorism since 9/11 has been decidedly schizophrenic. At times members of al Qaeda and its “associated forces” are treated as criminals while at other times they are treated as “enemy combatants.” Justification for treating Islamic terrorists as “enemy combatants” is typically sought in the 2001 Authorization for the Use of Military Force (AUMF). According to those who view the resolution as a legitimate declaration of war by Congress, the United States declared war against al Qaeda. Such a declaration of war against an organization – which is not even specifically named in AUMF – is unprecedented and likely incoherent.

Treating al Qaeda as akin to a belligerent nation state during a time of war is dubious and illogical. Those who planned and carried out the 9/11 attacks and seek to plan and carry out further terrorist attacks are criminals. Plain and simple. While declaring members of al Qaeda and “associated forces” as being "enemy combatants" allows the federal government to get around the due process of the Fifth Amendment, such a move may preclude some terrorists from being justly tried in any way, shape, or form.

Can members of al Qaeda be charged with war crimes? The modern precedent for this began with the Nuremberg Trials and related trials in 1947 following the end of World War II. The Nuremberg Principles were created by the International Law Commission of the United Nations in order to codify the legal principles underlying the Nuremberg Trials of Nazis following the war. Principle VI of the Nuremberg Principles codifies crimes under international law which are associated with war. It contains three types of crimes: Crimes against peace, War crimes, and Crimes against humanity.

Principle VI
The crimes hereinafter set out are punishable as crimes under international law:
(a) Crimes against peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
(b) War crimes:
Violations of the laws or customs of war include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
(c) Crimes against humanity:
Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war crime.

If the “War on Terrorism” is considered a war, can members of al Qaeda be charged with Crimes against peace? This depends on whether the 9/11 attacks are to be considered part of a “war of aggression.” The problem is that “war of aggression” is a vague expression. The military campaigns initiated and carried out against Poland, France, the United Kingdom, the Soviet Union, and much of the rest of Europe is the paradigm case of a “war of aggression.” Unlike the acts of war carried out by the Axis Powers during World War II, the 9/11 attacks cannot logically be viewed as the beginnings of an attempt to conquer the United States in order to acquire territory or to carry out the subjugation of the American people. The reasons for the 9/11 attacks can best be ascertained through the words of a Osama bin Laden when he declared a Jihad against “Jews and Crusaders” in 1998:

                                    First, for over seven years the United States has been occupying the lands of Islam in the holiest of places, the Arabian Peninsula, plundering its riches, dictating to its rulers, humiliating its people, terrorizing its neighbors, and turning its bases in the Peninsula into a spearhead through which to fight the neighboring Muslim peoples. If some people have in the past argued about the fact of the occupation, all the people of the Peninsula have now acknowledged it. The best proof of this is the Americans' continuing aggression against the Iraqi people using the Peninsula as a staging post, even though all its rulers are against their territories being used to that end, but they are helpless.

                                    Second, despite the great devastation inflicted on the Iraqi people by the crusader-Zionist alliance, and despite the huge number of those killed, which has exceeded 1 million... despite all this, the Americans are once against trying to repeat the horrific massacres, as though they are not content with the protracted blockade imposed after the ferocious war or the fragmentation and devastation. So here they come to annihilate what is left of this people and to humiliate their Muslim neighbors.

            Third, if the Americans' aims behind these wars are religious and economic, the aim is also to serve the Jews' petty state and divert attention from its occupation of Jerusalem and murder of Muslims there. The best proof of this is their eagerness to destroy Iraq, the strongest neighboring Arab state, and their endeavor to fragment all the states of the region such as Iraq, Saudi Arabia, Egypt, and Sudan into paper statelets and through their disunion and weakness to guarantee Israel's survival and the continuation of the brutal crusade occupation of the Peninsula.

Viewing the 9/11 attacks as part of a war of self-defense is dubious. However, these declared reasons for Jihad center around American troops in Saudi Arabia – which remained stationed there until 2003 – and the waging of war against Iraq during the Gulf War. Even if unjustifiable as self-defense, it could be viewed charitably as quasi-self-defense. It becomes difficult to differentiate al Qaeda’s Jihad from many of the wars that the United States has engaged in since the end of World War II. It is difficult to conclude that the Korean War, the Vietnam War, or the Iraq War – whether carried out under the authority of the United Nations or not – were wars of self-defense.

Can members of al Qaeda be charged with War crimes or Crimes against humanity? The 9/11 attacks could be considered War crimes if the deaths caused are considered murder or if the destruction of the World Trade Center and of the airplanes used as missiles are considered “devastation not justified by military necessity.” Likewise the 9/11 attacks could be considered Crimes against humanity if the deaths are considered murder.

The problem is that the killing of civilians and the destruction of non-military targets have become so commonplace in modern war that it becomes difficult to differentiate murder and unjustified devastation from “collateral damage.” If the Allied bombing campaigns on Tokyo and Dresden, the atomic destruction of Hiroshima and Nagasaki, the bombing of Hanoi, and the bombing of Baghdad did not constitute War crimes or Crimes against humanity, then it becomes difficult to determine why the 9/11 attacks should. There must be more of a justification than that the winners write the history. Might makes right cannot be embraced as an ethical or legal principle.

Furthermore, while al Qaeda has clearly committed many murders and atrocities apart from the 9/11 attacks, the 9/11 attacks themselves did not rise to the level of the Holocaust or other systematic atrocities carried out by the Nazis.

The Supreme Court case Ex parte Quirin (1942) – which has been used as a precedent to justify treating members of al Qaeda as “unlawful combatants” to be tried before military tribunals – might provide some clarification. The case involved eight Germans who traveled to the United States during World War II in an attempt to commit acts of sabotage. While they wore military uniforms prior to landing, they disposed of them and were wearing civilian dress when captured. The Supreme Court upheld the jurisdiction of United States military tribunals over the saboteurs. The eight men were convicted and six of them were eventually hanged. According to the Court:

By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

In a war against a nation state, this distinction makes sense. However, al Qaeda is not a nation state and its members wear no uniforms. Treating all of its combatants as “unlawful combatants” seems bizarre when no combatants can be considered “lawful.” If al Qaeda decided to start wearing uniforms, would this suddenly make their vicious acts “lawful” acts of war? It is also important to note that the hijackers on 9/11 would be equivalent to the German saboteurs, but they were killed during the attacks – with the possible exception of Zazarias Moussaoui. However, can the leadership of al Qaeda be charged as “unlawful combatants” in the attack? The leadership did not come secretly into the United States for “the purpose of waging war by destruction of life or property.” Furthermore, many of the al Qaeda members captured were not actually engaged in combat at the time. The fact that they are not in uniform at the time is akin to a German military officer wearing civilian clothing when he was on active duty.

There is no practical downside to treating al Qaeda members and other terrorists as criminals. The United States has successfully convicted hundreds of terrorists in federal criminal courts while the military tribunals perform their work slowly if at all. There is no evidence that these trials present a danger of being targeted by terrorist attacks. Furthermore, evidence suggests that penalties handed out by judges in criminal courts are more severe than many handed out by military tribunals. The upside is that there is no risk of clothing the leadership of al Qaeda with the dignity afforded to the leaders of warring nation states. Osama bin Laden was not Jefferson Davis. Said al-Shihri was not Robert E. Lee. They were mass murderers. Treating al Qaeda and other terrorist organizations as the criminal enterprises that they are allows for any and all members to be prosecuted without risking any erosion of Fifth Amendment rights.