• From: Eric Yost <eyost1132@xxxxxxxxxxxxx>
  • To: lit-ideas@xxxxxxxxxxxxx
  • Date: Tue, 13 Jun 2006 13:52:04 -0400

Findlaw correspondent Joanne Mariner (deputy director of the Americas division of Human Rights Watch) asks, "With rational people now discussing the possibility of terrorists detonating nuclear bombs, is it so terrible to keep suspected terrorists locked up?"


Secretary of Defense Donald Rumsfeld has indicated that some of the detainees, even if acquitted in criminal proceedings, may remain in detention "for the duration of the conflict." When asked to specify when, in his view, this would be, he replied, "when we feel that there are not effective global terrorist networks functioning in the world."

Secretary Rumsfeld's statements have at least an arguable basis in the laws of war. According to the Geneva Conventions, captured combatants may be detained without charges until the end of active hostilities. The justification for this rule is that a government involved in an armed conflict has an obvious interest in ensuring that enemy soldiers are kept away from combat for the duration of the conflict.

In an ordinary war, it is fairly easy to determine when hostilities have ended. This current conflict, however, as least as framed by the Pentagon, is no ordinary war. There has been enormous debate over when the war began - was it with the attacks on New York and Washington, or with the commencement of the U.S. bombing campaign in Afghanistan? - and there is equal controversy regarding when it can be deemed to have ended.

In other words, at what point must the "war on terrorism" be understood simply as a rhetorical formula, like the "war on drugs" (or, back in the idealistic past, the "war on poverty")? And an even more preliminary question is whether terrorism, even in its most extreme manifestations, should be recognized as a form of war.

As Rumsfeld's comments suggest, the Bush administration's views on this issue are fairly unequivocal. U.S. officials claim that the attacks on the Pentagon and the World Trade Center were acts of war; that the war on terrorism is a real war, not a rhetorical device; and, apparently, that the Guantanamo detainees may be held without trial until the war on terrorism is over.

Human nature being what it is, terrorism is probably an inevitable characteristic of the modern world. Developments in technology, communications, and the media make terrorism easier and more attractive than ever before. While the United States may succeed in stamping out particular terrorist groups, and preventing particular terrorist acts, it is hard to imagine that the United States will ever succeed in eradicating terrorism per se.

Thus, as Georgetown Law Professor David Cole put it, to say that we will hold the Guantanamo detainees until the war on terrorism is over means that "we're going to keep them for eternity because there are going to be terrorist organizations as long as there is a common cold."

So the question is, given what is at stake, is eternity too long? It must be acknowledged that the Bush administration's readiness to resort to extreme measures such as indefinite detention without trial is, to a great extent, a reflection of the seriousness of the terrorist threat. With rational people now discussing the possibility of terrorists detonating nuclear bombs, is it so terrible to keep suspected terrorists locked up?

full article at: http://writ.news.findlaw.com/mariner/20020528.html

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