Confusion Can Give Captured Terrorists Additional Legal Rights

FAYETTEVILLE, Ark. — By confusing the rhetoric of war with the reality of war in its approach to terrorism, the United States government risks giving terrorists far more legal rights than they would have as common criminals, according to University of Arkansas law professor Steve Sheppard.

Since Lyndon Johnson declared war on poverty in 1964, Americans have become accustomed to politicians using military rhetoric to describe domestic initiatives, from the war on cancer to the war on drugs to the war on Internet spam. For politicians and media alike, declaring war on something has become shorthand for "we’re really serious about this." But when the military actually becomes involved, the situation can become confusing.

"We don’t need to confuse war with criminal law," said Sheppard. "Merely using the military doesn’t make it a war."

Sheppard explores the ramifications of confusing war rhetoric with the legal definition of war in "Passion and Nation: War, Crime, and Guilt in the Individual and the Collective," which appears in the current issue of the Notre Dame Law Review.

"The war against terrorism runs the risk of adding stature to the enemy," explained Sheppard. "When the enemy is a criminal, it is entitled to treatment as one. When the criminal is an enemy at war, it is entitled likewise to treatment as one, in the same manner as a sovereign nation. Some legal scholars believe that merely the designation of the actions against terrorists as a war is enough to cloak terrorists, such as the members of al Qaeda, with the special protections given to combatants under the laws of war."

In the United States, individuals accused of criminal activity have certain rights under the law, but combatants in a war are entitled to treatment as a prisoner of war (POW) under the Geneva Convention Relative to the Treatment of Prisoners of War, to which the United States is a signatory.

This accords more far extensive rights to POWs. In addition to being entitled to humane treatment, health care, clothing, food, tobacco, practicing their religion and "all civil capacity that they enjoyed at the time of their capture," among many other things POWs

cannot be killed or their health endangered
must be protected from acts of violence, intimidation, insults or public curiosity
must not be subjected to physical or mental torture, or any other form of coercion, to obtain information of any kind whatever — POWs that refuse to answer questions "may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind"
must not be kept in penitentiaries or held in solitary confinement — POWs must be kept in dormitories with others of their nationality, language and customs, provided adequate heat, light and other facilities equivalent to those provided to the military
are subject to repatriation at the end of hostilities
"There has been increasing argument, even prior to President Bush’s declaration in 2001 to treat the prosecution of counter-terrorism as the prosecution of war," Sheppard said. "Yet these arguments consistently fail to persuade either why the laws of war should apply to the benefit of terrorists or why the military is best suited to investigate acts of terror and locate their perpetrators. Many of these arguments tend not to be seeking so much a military solution as a diminished standard of care in a legal solution."

Sheppard points out that the U.S. government is trying to avoid any classification of either the military actions in Afghanistan as a war or designate the prisoners as criminal suspects. He calls this effort to blur these distinctions "unnecessary" and uses two precedents from American history — the Barbary Pirates and Pancho Villa — to illustrate the difference in the use of the military for war and for criminal response.

The Barbary Pirates were mercenaries working for the rulers of Algiers, Tunis, Morocco and Tripoli. They captured American ships, took prisoners and demanded payment of tribute for safe passage. In 1815, Congress declared war on Algiers and the U.S. Navy captured the pirates and destroyed their fleet. The captured soldiers and sailors were treated as POWs and repatriated after the war.

"This illustrates the treatment of the acts of individuals as war. The United States treated the seizures of American shipping and property as acts of war, although it considered acts of piracy by others to be crimes," Sheppard explained. "The distinction is simple: piracy committed by or for a state was an act of war, but piracy committed by an agent not acting for a state was piracy."

In the instance of Pancho Villa, the Mexican revolutionary crossed into Texas and raided the town of Columbus, robbing a bank and killing 17 Americans. With the consent of the Mexican government, the U.S. sent troops into Mexico to apprehend him. Like Osama bin Laden, Villa escaped from the military by hiding in caves. However, the soldiers captured 21 of his men, who were returned to the United States, tried for murder and given the death sentence.

"Despite the rhetoric of war against Villa and the fact that he was sought by military forces, acting under executive orders and with the consent of Congress, this was not a war in any traditional sense under American law," said Sheppard. "Villa’s troops were regarded as criminals, subject to arrest and not to repatriation. The military left the trials of these matters in civilian hands, where the criminal law was carried out."

According to Sheppard, the modern definition of war under law is a state of armed conflict between or among states or groups of like states capable of supporting a uniformed military.

War is between states, or between forces within a state battling for its control.

"While war is not always easily defined. It becomes easier in considering who does not engage in it — the stateless," he said. "This isn’t hard to understand, but we’ve made it hard."