Analysis

In the wake of 9/11 public sentiment was vehemently against preferential treatment for any accused terrorist. They were seen as the most insidious of people and the American public’s desire for revenge reached almost racist proportions. However, once emotions settled and every Arab was no longer immediately suspected of a diabolical plot against our country, the question arose as to how those accused foreign terrorists should be arrested, detained, tried, and if convicted, sentenced. The Bush doctrine outlined the basic rights and rules that were to be followed: they would receive a trial by military tribunal, they would be held as persons who are dangerous to the state until trial, they would be represented by a licensed defense lawyer, they can call witnesses on their behalf, and most importantly they are innocent until proven guilty. More recently, the Obama administration has added the right to appeal and the mandatory reading of Miranda Rights during arrest to this list.

Almost as soon as these regulations were enacted, a debate began to rage over whether or not this treatment is fair and just.(Amnesty International) Those who opposed the Bush doctrine do so believing that the accused terrorists should receive the same rights as US citizens as defined by the Boumediene decision. The problem with this decision is that by granting them the same rights as US citizens, they now have access to health care, social security, and even veterans benefits if they were wounded during their capture.(Token Conservative)

The arguments against the Bush/ Obama policies are not limited to declaring accused terrorists US citizens. Another position is that they should be treated as prisoners of war and be granted those rights accordingly. These include protection from military tribunals and the right to be negotiated and released at the conclusion of the conflict. The definition of a POW as defined by the Geneva Convention requires that the captured combatant meet the following criteria (Convention III):

(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.

It is pretty clear however, that those accused of terrorism do not fit all or even most of the criteria. There is no commander directly responsible for his subordinates. Bin-Laden would not count as he is not directly in contact with each member. They do not wear a consistent and recognizable uniform and most of the time they conceal their arms. Finally, the targeting of civilians and police violates the stated laws and customs of war which fails part (d) of the criteria.

So if they are not US citizens and not POWs then how should they be designated? The closest approximation is that of an unlawful combatant or spy (The POW). During WWII Nazi saboteurs who snuck into the United States wearing civilian clothes and carrying concealed weapons with plans to destroy civilian factories were obviously classified as spies and when they appealed this treatment to the Supreme Court (The Middle East Quarterly), the Court decided that they were indeed defying the laws of war and that they should be treated as unlawful combatants subject to military tribunal and held outside the rights of the Constitution.(EX PARTE QUIRIN)