The Disappeared

From today's Times:

"WASHINGTON — A federal appeals court ruled Friday that three men who had been detained by the United States military for years without trial in Afghanistan had no recourse to American courts. The decision was a broad victory for the Obama administration in its efforts to hold terrorism suspects overseas for indefinite periods without judicial oversight."

In defense of this decision, Sen. Lindsey Graham:

“Allowing a noncitizen enemy combatant detained in a combat zone access to American courts would have been a change of historic proportions. . . .It also would have dealt a severe blow to our war effort. . . There is a reason we have never allowed enemy prisoners detained overseas in an active war zone to sue in federal court for their release. It simply makes no sense and would be the ultimate act of turning the war into a crime.”

Some would say the war already is a crime, but let that go.

In theory, we agree with Senator Graham's reasoning. During World War II, it would have been ludicrous to Mirandize every German soldier taken prisoner after D-Day (especially since the Miranda warning wasn't written until the 1960's).

Our current conflict, however, is not World War II; it's a war on "terror." What are the rules on prisoners captured in a war on an abstract noun?

In a conventional war, anyone wearing the enemy's uniform may be considered fair game for punitive measures, whether of a lethal or judicial variety. Terrorists, however, wear no uniforms. How can a soldier know, then, who is an appropriate target? We accept the fact that soldiers must be cautious--over-cautious--when dealing with potential terrorists. We understand the need to detain potential threats. But then what?

Again, a comparison to a conventional war is in order. At the end of hostilities, enemy POWs are sent back to their home countries. But as has been noted in numerous places, there can really be no "end" to a war on terror. Prisoners of this war will never have the opportunity to be released upon the cessation of combat. Fine for those who were actually engaged in violent, terroristic acts; not so great for the inevitable innocents swept up in the rush of events.

So, how are we to know who is being held appropriately? Simple answer: trials.

Ungainly? Sure. But the logistical difficulty of a solution is no excuse for not undertaking it. To go back to Sen. Graham's point about "turning the war into a crime," we would point out that the acts that provoked this war were, in fact, crimes. The 9/11 attacks were different in degree but not in kind from the Oklahoma City bombing in 1995. After that attack, a massive criminal investigation was launched, and Timothy McVeigh was ultimately arrested, tried, convicted, and executed. The federal government didn't invade Tulsa and start rounding up random Okies.

The American judicial system is based on the idea of "innocent until proven guilty." If prosecutors cannot make their case, detainees (they don't become "prisoners" until after conviction) must be released in a timely manner. It doesn't matter whether they are arrested in Kabul or Kansas.

Mr. President: Find another way.