NEW YORK — Is the Bush administration's "war on terrorism" a real war, and thus governed by the rules of armed conflict? Or is it a law-enforcement effort governed by traditional rules of criminal justice?
Two recent rulings by federal appeals courts offered answers to these questions. One involved Jose Padilla, a U.S. citizen who flew from Pakistan to Chicago in May 2002 allegedly to scout targets for a radioactive "dirty" bomb. Rather than prosecute him, President Bush declared him an "enemy combatant" and claimed that the government had the right to hold Padilla without charge or trial until the end of the "war" against terrorism. The U.S. Court of Appeals for the 2nd Circuit, based in New York, ruled that, absent explicit congressional authorization, the president has no such power.
The second case involved several prisoners at the U.S. Naval Base at Guantanamo Bay, Cuba, who sought access to U.S. courts to challenge their detention. The Bush administration claimed that because Guantanamo is leased from Cuba, it should be considered sovereign Cuban territory and thus outside the reach of U.S. courts. The U.S. Court of Appeals for the 9th Circuit, based in San Francisco, rejected this view of Guantanamo, ruling that because the U.S. exercises total control over the base, it is not outside the jurisdiction of U.S. courts.
These kinds of issues stem from the administration's view that the rules for traditional armed conflict should apply to the war on terrorism. Even though, as the president said, "Our war on terror will be much broader than the battlefields and beachheads of the past. The war will be fought wherever terrorists hide, or run or plan."
The president wasn't waxing metaphorical here. To him, the war on terrorism is quite literal, and that is worrisome because governmental powers are much greater in wartime.
In ordinary times, governments are bound by strict rules of law enforcement. For example, police can use lethal force only when facing an imminent threat of death or serious bodily injury. Once a suspect is detained, he must be charged and tried.
In times of war, these rules are supplemented by the more permissive ones of armed conflict. Under "war rules," an enemy combatant can be shot without warning (unless he is incapacitated, in custody or trying to surrender), regardless of any imminent threat. If a combatant is captured, he can be detained without charge or trial until the end of the conflict.
