The nature of modern conflicts force us to enter a multitude of grey areas and force us to confront a number of questions. What authority should the government have to engage enemies abroad or detain adversaries at home? What’s the proper line between law enforcement and war? How do we strike a balance between security and the rights citizens and humanity?
What do we want? What should we want?
It’s a question we all should grapple with. That’s what I’m trying to do here. My goal is to present a basic moral, practical, and legal framework within which policies and actions can be evaluated. In deciding the proper treatment for accused terrorists, suspected militants, or other enemies of the state, I divide them into three basic categories. These categories are differentiated largely by the circumstances under which the targets are operating or process by which they came to be in US custody.
Anyone operating or apprehended on US soil, or in a friendly nation where our law enforcement officials can operate with relative freedom should be treated as a criminal. Regardless of the severity of the accusation, the detainee captured by law enforcement officials should be arrested and tried in criminal court. These individuals should be entitled to all of the rights, privileges, court systems and standards of evidence as anyone else arrested in the United States.
Prisoners of War
An individual, operating outside the US, captured, detained or handed over to the US military, who is thought be engaged of acts of war against the United States or its allies may rightfully be detained as a prisoner of war.
These persons should be treated in accordance with international norms and in a way consistent with our own expectations of how captured US service members are to be treated by other nations.
Only people actively engaged in acts of war, or planning such actions can be rightfully held under this authority. Attempts to kill American soldiers or civilians and similar acts of destruction are adequate qualification. But no amount of preaching, writing, speaking or other non-military act is sufficient.
Prisoners of war should have the opportunity to challenge the circumstances of their detention and to demonstrate that they should not be rightfully held as prisoners of war. They may be held until such time as the relevant conflict has ceased, or they are not longer considered a threat. This may result in an indefinite period of detention.
Prisoners of war may also be charged with crimes, subject to military courts, and thus incarcerated for longer periods of time.
Enemies on the Battlefield
Individuals engaged in acts of war against the US, and not subject to apprehension by military or civilian authorities, may be properly regarded as battlefield enemies. They are legitimate targets and may be targeted and killed by our armed forces.
The above represents relatively straightforward framework. That may or may not be controversial. It does carry several implications that should be called out.
None of these categorizations are dependant upon citizenship. An accused terrorist arrested at Logan airport with a Yemeni passport gets the same access to the courts as an American citizen. Similarly, holding an American passport affords you no protection if you are holding a rifle on a rooftop in Kandahar or organizing militants in a village in Waziristan.
Transparency and Authority
Much of the controversy around military and terror policies stem from questions of transparency and authority. Even if we grant the powers to detain or kill, who gets to decide when they are applied? What level of transparency do we require? Should our government be required to inform us if they’ve decided they are entitled to kill someone?
I’m taking the basic position that the framework outlined here is a moral framework. Issues of transparency and accountability don’t change the morality of the underlying actions. Torture or an extra-legal assassination doesn’t become moral because it is covered up successfully or rationalized to someone’s satisfaction. The acts are moral or immoral, legal or illegal, whether we find out about them or not.
The flip side of that is that, in a democracy, authority is granted by the people. But it is granted. We should not require military commanders or their civilian leaders to publish a list their targets or their protocols. Ultimately, we have to recognize that, with our elections, we are entrusting imperfect people with tremendous power.
We have to elect people we can trust. We have to trust the people we’ve elected. We have observe and evaluate the outcomes and see if that trust has been violated.