Published November 27, 2009
Attorney General Eric Holder’s decision to prosecute five al Qaeda terrorists, most notably Khalid Sheikh Mohammed, in federal civilian court is a mistake on many levels. The prospect is bad enough that, because these men — captured enemy combatants — were not given the rights of civilian criminal suspects, one or more may be acquitted.
By undermining the legal architecture supporting the use of military force against al Qaeda and its allies, this decision carries further profound implications for the United States’ ability to defend itself in the future.
Even as it jettisoned the term “war against terror,” the Obama administration has confirmed that the United States is engaged in an “armed conflict” — an international law term for “war” — with al Qaeda, the Taliban and their allies. President Obama has not withdrawn the United states armed forces from Afghanistan and even plans to increase them.
Characterizing the struggle against al Qaeda as an armed conflict is critical because it is the law of armed conflict that permits the United States to use military force in Afghanistan and elsewhere. If the law of war does not apply here, if al Qaeda and Taliban operatives are not enemy combatants but civilian criminal suspects, then armed attacks by American soldiers against them are illegal.
Such attacks would be war crimes leading to potential criminal liability not only for the individual U.S. servicemen involved, but all the way up the chain of command to the president himself.
These are not merely technical distinctions. Rules governing law enforcement and the use of deadly force differ profoundly from parallel rules during armed conflict. For example, police (or soldiers acting as police) cannot simply attack criminal suspects with deadly force. They must first attempt to effect an arrest and, depending on the circumstances, may even need an arrest warrant.
Moreover, civilian police must permit a suspect to escape if his capture would create any significant risk of injuries to the surrounding population. Under the law of war, while soldiers must also consider such risks, they may go forward so long as likely injuries to civilians (or civilian objects) are not disproportionate to the soldiers’ military objectives.
Above all, if the “law of war” architecture is undermined here, U.S. forces and civilian officials will be exposed to criminal liability for their use of force. Unfortunately, this is exactly what trying terrorists in federal District Court does.
It suggests that even the United States does not believe that it is engaged in a legally cognizable armed conflict, but rather in a widespread law enforcement initiative. This has, in fact, been our European allies’ view since 9/11 itself.
Of course, the Bush administration also tried certain al Qaeda operatives in the civilian courts — including Zacarias Moussaoui (often identified as the “20th” 9/11 hijacker), Jose Padilla (the “dirty bomber”) and John Walker Lindh (the “American Taliban”). However, the decision to try Lindh in federal court was made very early in the conflict, and the other two “defendants” originally were detained in the United States by law enforcement personnel.
That is not the case here. Mohammed and his compatriots were captured overseas and directly involved in active hostilities. These terrorists planned the 9/11 attacks. They are properly subject to military law in military courts.
Whether Mr. Holder’s decision was designed to bolster the president’s base, at a time when Obama is poised to increase U.S. troops levels in Afghanistan, or was a less politically cynical but still misguided effort to enhance our standing with the war-skeptical Europeans, it is a very bad deal for the country.
David Rivkin and Lee A. Casey are partners in the Washington office of Baker & Hostetler LLP and served in the Justice Department during the presidencies of Ronald Reagan and George H.W. Bush.