The Pirates Challenge Obama's Pre-9/11 Mentality - Distinctions between lawful and unlawful combatants go back to Roman times

The Pirates Challenge Obama's Pre-9/11 Mentality. By Mackubin Thomas Owens
Distinctions between lawful and unlawful combatants go back to Roman times.
WSJ, Apr 11, 2009

When Somali pirates hijacked the U.S.-flagged Maersk Alabama this week and took 20 Americans hostage, President Barack Obama refused to comment. It seems that our new president is desperate to do everything he can to distance himself from his predecessor, which is why his team has launched a campaign to rebrand the War on Terror. The results are mystifying. "Overseas contingency operations" is the new name for the war, while "man-caused disasters" is a euphemism for terrorist attacks.

In this new rhetorical regime, the administration criticizes President George W. Bush for his "illegal" policies with respect to the detention center at Guantanamo Bay, and claims that the treatment of the detainees themselves constitutes "torture."

But while they've certainly made cosmetic changes, many claim the Obama administration has left the substance of Bush's approach intact.

Attorney General Eric Holder added to this perception when, after visiting Guantanamo, he acknowledged that the facility is very well run and that implementing Mr. Obama's promise to close it down will be difficult. While renouncing the term "enemy combatant," the Obama administration acknowledges the reality that no matter what we call those detained at Guantanamo, the detainees are still not entitled to prisoner-of-war status because they have violated the laws of war by killing civilians and fighting out of uniform. Instead of calling the detainees enemy combatants, the administration has opted to refer to them as "individuals captured in connection with armed conflicts and counterterrorism operations," or "members of enemy forces," or "persons who [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for the September 11 attacks."

Though these changes might seem superficial, unfortunately, they represent a substantive shift. They signal a return to the policy mindset that existed before 9/11, and the consequence will be material harm to U.S. security.

First, in holding that the president's power to indefinitely detain without legal charges is derived from Congress's authorization for the Use of Military Force Act (passed in the aftermath of 9/11), the Justice Department has undercut the president's own war power under the Constitution. This is an inherent executive power that has been recognized since at least the presidency of Abraham Lincoln.

As Lincoln wrote to James Conkling in August 1863, "I think the Constitution invests its commander-in-chief, with the law of war, in time of war." In addition to the commander-in-chief clause of Article II, Lincoln found his war power in his presidential oath "to preserve, protect, and defend the Constitution of the United States."

Second, the various new substitutes for "unlawful enemy combatant" abolish an important distinction in traditional international law. As the eminent military historian Sir Michael Howard argued shortly after 9/11, the status of al Qaeda terrorists is to be found in a distinction first made by the Romans and subsequently incorporated into international law by way of medieval and early modern European jurisprudence. According to Mr. Howard, the Romans distinguished between bellum (war against legitimus hostis, a legitimate enemy) and guerra (war against latrunculi, pirates, robbers, brigands and outlaws).

Bellum became the standard for interstate conflict, and it is here that the Geneva Conventions were meant to apply. They do not apply to guerra. Indeed, punishment for latrunculi, "the common enemies of mankind," traditionally has been summary execution.

Though they don't often employ the term, many legal experts agree that al Qaeda fighters are latrunculi -- hardly distinguishable by their actions from pirates and the like. Robert Kogod Goldman, an American University law professor has commented: "I think under any standard, the captured al Qaeda fighters simply do not meet the minimum standards set out to be considered prisoners of war." And according to Marc Cogen, a professor of international law at Ghent University in Belgium, "no 'terrorist organization' thus far has been deemed a combatant under the laws of armed conflict." Thus al Qaeda members "can be punished for all hostile acts, including the killing of soldiers, because they have no right to participate directly in hostilities." But the Obama administration is about to extend legal rights -- intended to protect civilians -- to the very latrunculi who want to blow them up by considering the possibility of trying them in U.S. courts. Indeed, Attorney General Holder did not rule out trying the Somali pirates.

Some in Congress want to go further than the Obama team. Rather than focusing their attention on the terrorists, these politicians wish to criminalize the behavior of Bush administration officials for actions they took to protect Americans, and that fell well short of those taken by Lincoln in suppressing the Rebellion of 1861. Thus Sen. Patrick Leahy (D., Vt.), aided and abetted by my own Sen. Sheldon Whitehouse (D., R.I), have begun hearings on Mr. Leahy's proposal for a "Truth Commission" to investigate the Bush administration's interrogation policies.

The mantra of Bush critics has been that the previous administration "tortured" detainees. But this is nonsense. At issue is the CIA's waterboarding of three high-ranking latrunculi who had been instrumental in planning and executing attacks that killed thousands of Americans. These individuals had been trained to resist conventional interrogation methods and were thought to have information about impending attacks.

What makes the Leahy-Whitehouse show trials most appalling -- and hypocritical -- is that Congress was briefed on the enhanced interrogation methods in September 2002. At the time, according to the Washington Post, members of Congress from both parties -- including current Speaker of the House Nancy Pelosi -- wanted to ensure that the interrogations were tough enough to get the necessary intelligence from the captured terrorists. As the Post reported, "there was no objecting, no hand-wringing," and according to a U.S. official present during the briefings, "the attitude was, 'We don't care what you do to those guys as long as you get the information you need to protect the American people.'" But of course, according to a source looking back on that period, "the environment was different then because we were closer to Sept. 11 and people were still in a panic."

And therein lies the problem. Too many of our leaders have forgotten that we are at war with latrunculi who wish to destroy us. Anyone who doubts this need only read the recent statement by the five detainees at Guantanamo charged with planning the 9/11 attacks in which they describe the charge that they murdered Americans very clearly -- as a "badge of honor."

Mr. Owens is a professor at the Naval War College and editor of Orbis, the journal of the Foreign Policy Research Institute.