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Are Civilian Courts Appropriate for Prosecuting Individuals Classified as Enemy Combatants?

Discussants: David B. Rivkin, and Karen J. Greenberg
Updated: February 12, 2007


The Bush administration has used the “enemy combatant” designation as an attempt to keep terrorists out of U.S. civilian courts. This strategy suffered a setback in June 2006, when the Supreme Court ruled that the military tribunals set up to try detainees in Guantanamo Bay were illegal. But the Court's decision did not resolve the debate over how to prosecute suspected terrorists.

Legal expert David B. Rivkin and Karen J. Greenberg, executive director of the NYU Center on Law and Security, debate whether civilian courts are the proper place to prosecute these individuals.

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Karen GreenbergMost Recent

February 12, 2007

Karen J. Greenberg

The unfortunate news is that there is yet to be a consistent policy set by the U.S. government on how to charge and try detainees. We have, essentially, ad hoc, piecemeal justice, implemented without regard for either consistency or any overall legal theory. The charges against Padilla have changed repeatedly. The rules of the CSRTs [Combatant Status Review Tribunals] and of the rights of the enemy combatants vis-à-vis legal representation have been altered numerous times. This embrace of inconsistency brands the administration’s position as unreliable and undermines its claims to legitimacy, countering the very nature and purpose of the rule of law in a society.

It is in this context that the military commissions need to be assessed. The claim that the current military commissions conform to the principles and procedures codified under the UCMJ [Uniform Code of Military Justice] are inaccurate. Denying the right of a detainee to hear the evidence against him, the right to a lawyer at the CSRTs, and the right of habeas corpus are not considerations which fall into any of the categories of military commissions as we have traditionally understood them. This tactic has kept defense attorneys and others off balance, but just as important is its impact on the rule of law itself. If you can change the rules at whim, how do we know what the rules are? And if Congress wants to follow the current executive and thinks it is necessary to toss the Geneva Conventions or the UCMJ aside, then they owe us a long-term strategy for going forward, one that does not propose one constitution for wartime and one for peacetime, but gives allegiance to lasting and well-vetted legal principles.

If David Rifkin and his colleagues in the administration want to argue for the use of “war’s distinctive legal paradigm,” then let’s do just that—respect the distinctive legal paradigm rather than change it willy-nilly. And if we as a nation decide that change is warranted, let’s create reforms that reflect a coherent long-term strategy that includes accountability and adherence to the U.S. Constitution. We are in serious times; inconsistent and short-sighted policy decisions seem all too frivolous and unthinking when the times demand so much more.

David Rivkin

February 9, 2007

David Rivkin

After a couple of exchanges, it is unlikely that Karen and I would agree on the key underlying legal issues. However, it would be helpful at least to lay out where the true disagreements reside. First, while the war against al-Qaeda, Taliban, and affiliated entities is not a new kind of war in the historical sense—as described in my previous post—it is a challenge that has not arisen in the recent past. Hence, the natural human tendency is to treat it as new and unprecedented. As to how much, or how little, the Bush administration has done to make the American people understand that we are in a state of war against a tough and resolute enemy and that this war will go on for a long time, this is something reasonable people can disagree about. We know from past history that Presidents have done a variety of things to make people feel that they were at war—most of FDR’s [Franklin D. Roosevelt] rationing policies were not driven by real wartime necessities but were primarily symbolic in nature. I am not sure whether there is an analog for this today. In any case, these are policy matters that have nothing to do with the key question—what is the appropriate legal paradigm for dealing with captured enemy combatants.

Second, I am troubled that, after two exchanges which I believed elaborated upon in some detail both the legitimacy and legality of the wartime’s legal architecture, e.g., the use of a military justice system, detaining captured enemy combatants for the duration of hostilities, etc., Karen can still try to cast what is being done by the Bush administration as a violation of our democratic principles and constitutional traditions. Quite frankly, there is nothing insidious, immoral, or unlawful about a democracy using war’s distinctive legal paradigm whenever it finds itself at war. While much of the rest of the world, including most of our allies, have chosen to grant irregular fighters rights equivalent to lawful soldiers, and vociferously criticizes such basic U.S. wartime policies as detaining enemy combatants at Gitmo for the duration of hostilities, this does not mean that they are right and we are wrong. Incidentally, I do not understand Karen’s reference to “traditional military commissions”; the military commissions in place today are the traditional military commissions, except with a lot more due process thrown in as compared with the military commissions of the Civil War or World War II vintage. Military commissions are, of course, different from courts martial. This is as it should be; as explained in my first post, courts martial deal with lawful combatants, both one’s own and the enemy’s, and are meant to be operating differently than military commissions, which handle unlawful enemy combatants.

Third, and last, our enemies, the Islamists of various stripes, espouse so many alleged grievances—e.g. our resistance to their interpretation of Islam and the reconstitution of an Islamic caliphate; our veneration of democracy coupled with a secular and, at times, promiscuous culture; our engagement with the various Arab governments that they do not find sufficiently devout; our support for Israel; the cartoons allegedly insulting the Prophet, etc.—that I find it utterly implausible that it is the few aspects of our wartime legal policies that are singularly and uniquely responsible for inciting jihadism. Al-Qaeda did, after all, attack us before the Bush administration began detaining their operatives at Gitmo. To put it differently, in the face of the enemy that already hates us for twenty different reasons, adding another reason or two does not a difference make.

Karen GreenbergFebruary 8, 2007

Karen J. Greenberg

I am greatly indebted to David Rivkin for his clarification of the Bush administration’s position. Both in substance and in style his argument is revealing. Mr. Rivkin argues that this is not a new kind of war, but at the same time he argues that measures set up to handle enemies in prior conflicts are not appropriate to this conflict. The idea that nothing has changed but everything has changed has characterized the administration’s message to the American people since the very onset of the war on terror. The American public has been told to live their lives as before, but also that fundamental changes in the balance of power, the role of the courts, and the uses of secrecy must be altered.

This is a war, by the way, which I very much accept and think it is imperative to win. The assertion that my preference for using  traditional military commissions and  civilian courts to try terrorists means that I do not believe we are in a time of war sets up a false dichotomy, echoing all too readily the repeated theme that those who criticize current policy are somehow subjecting the country to greater danger.

The courts are not an exclusive mechanism for counterterrorism; they are one of many tools that can help protect American citizens from harmful enemies. More importantly, the use of the courts signifies a refusal to succumb to the jihadi terrorists’ goal of forcing their enemies to react in ways that violate basic premises of democracy and that, in fear, embrace repression and heavy-handed responses to terror. Citing Nazi Germany and colonial Spain vastly misunderstands the conflict at hand. Our moral superiority and our respect for the rule of law are precisely the characteristics of our national identity that terrorists desire to dismantle. These are the last things we should surrender, not the first ones we should relinquish, in the name of national security. A more appropriate parallel might be the Soviet Union, which succumbed ultimately to the avalanche of ideas, economic prowess, and wise public diplomacy in the face of a repressive and threatening enemy.

In terms of fighting this particular war against al-Qaeda and other jihadi groups, it is important to note that unlike the 9/11 attacks, the subsequent attacks in Madrid, in England, and elsewhere, were not the result of a centralized al-Qaeda structure but of ideologically inspired groups who drew support in part from the U.S. willingness to violate its own laws and traditions. Unwittingly, we supplied a weapon for our enemies in turning our backs on our own codes of law and honor.

In our general urge toward proving we can “take the gloves off,” we have taken our eye off of the strategic agenda. This is a war that will be won on ideological grounds and on creating an international consensus that spans the globe. Civilian courts are but one dimension of this ideological allegiance to our legal and moral heritage. The magnitude of the conflict in which we find ourselves should not be underestimated. Only through a persistent commitment to our own way of life can we win this war, a war that is as much about perceptions and ideology as it is about violence.

David RivkinFebruary 7, 2007

David B. Rivkin

Karen Greenberg and I seem to disagree about pretty much everything—law, policy, and even history. If we are to move this discussion forward, we should at least try to identify crisply what are the key disagreements involved.

First, contrary to Karen’s view, there is nothing particularly new about this conflict. Civilized states have in the past waged armed struggles against non-state groups (e.g. pirates or condottiere) which lasted for years. It does not mean that they are endless or cannot be brought to a successful conclusion; while there may not be a grand surrender ceremony, international law recognizes that a conflict is brought to an end when the ability of one’s enemies—in this case al-Qaeda, Taliban, and affiliated jihadi groups—to offer effective resistance has been eradicated. Ironically, and this is the point that many critics do not seem to understand, failure by the United States to employ all legitimate tools of warfare, including the correct legal paradigm—laws of war—rather than a peacetime criminal justice paradigm, will make this war much longer than it has to be or may even cause us to lose.

Second, the notion that a war can be waged on a global scale, rather than being confined to a few geographically limited battlefields, is also not new. To give but a few examples, the War of the Spanish Succession and World Wars I and II were waged globally. Moreover, unlawful spies and saboteurs—the classic examples of unlawful combatants—have always tended to operate far away from battlefields, often attacking civilian targets. In that, they are no different from [accused dirty bomber José] Padilla or [radical cleric Abu Hamza] al-Masri—two jihadis seized as enemy combatants in the United States since September 11.

Third, the Military Commissions in place today are “richer” in due process and closer to the civilian courts than in any time in the past. The Supreme Court’s Hamdan decision was predicated solely upon statutory grounds, which Congress altered in the Military Commissions Act. Meanwhile, the CSRTs [Combatant Status Review Tribunals] in place today provide captured enemy combatants far greater opportunities to vindicate their rights than the past Article 5-type “competent tribunals” [prescribed in the Third Geneva Convention].

Fourth, the fundamental difference between Karen and me is that, deep down, she does not really accept the proposition that we are at war. This is evident in her remarks about civilian courts having been successful in trying terrorists. This may be true, but enemy combatants captured in time of war are different than peacetime terrorists and should be treated differently. Just like a war cannot be successfully fought without using military force, it cannot be waged properly without employing war’s unique legal architecture.

Karen GreenbergFebruary 7, 2007

Karen J. Greenberg

Granted we are involved in a new kind of conflict, with no end in sight. Nevertheless, the idea of summarily changing our system of trial, both military and civilian, gives up all too easily on the standards of procedure, accountability, and justice that have guaranteed the rights of defendants in the United States. In theory, I agree with David Rivkin on the point that enemy combatants picked up on the battlefield can be tried by military commissions. But to get to his point that military commissions are an apt means of trial for unlawful enemy combatants relies upon summarily asserted redefinitions of legal terms and practices and thus to misleading conclusions. Notably, the battlefield is assumed to extend to anywhere in the globe; enemy combatants are classified as such in relative secret; and the term military commissions is now used to refer to a new kind of military commission that is absent the basic standards of evidence and procedure that have traditionally defined those commissions. The problem is not military commissions per se but these particular military commissions, as the defense argued successfully before the Supreme Court in Hamdan. Nor should the CSRTs [Combatant Status Review Tribunals] be considered an acceptable alternative. The absence of legal counsel, the low evidentiary standards, and the lack of accountability are contrary to traditional military commissions which follow the rules of courts martial.

Yet another weakness of Rivkin’s argument is his dismissal of the civilian courts as a potential tool in prosecuting suspected terrorists: The current trend, as evidenced in the Military Commissions Act, is similarly contrary to the use of the civilian courts as it essentially strips jurisdiction over habeas petitions and gives the courts limited review of CSRT decisions. The question of civilian courts should not be ruled out. There are numerous arguments for empowering civilian courts to try these cases, among them the fact that civilian courts have proven successful in the past in trying terrorists, from the Blind Sheikh and Ramzi Yousef [1993 World Trade Center bombing] to Timothy McVeigh [Oklahoma City bombing].

It is resource intensive to mount such cases in part because it requires transparency and a higher level of proof in defining the enemy, but as the 9/11 Commission Report attested, the amassing of facts in the pre-9/11 cases deepened the law enforcement community’s and the country’s understanding of al-Qaeda and the terrorist threat in unparalleled ways. So, too, the changing of the rules by the United States runs the risk of alienating the cooperation in terms of information collection and extradition from other countries. Ultimately, the use of civilian trials is not about expediency, nor a way of compensating for a lack of knowledge about the accused, but a concern for the careful, long-tested rules and procedures designed to ensure that justice is served.

David RivkinFebruary 6, 2007

David B. Rivkin

Under both international law of war and the U.S. Constitution, individuals classified as enemy combatants are detained and, if appropriate, prosecuted through the military justice system, comprised of two distinct components—courts martial and military commissions. Lawful enemy combatants, entitled upon capture to POW [prisoner of war] status, can only be prosecuted for the commission of war crimes. Moreover, they can be legally tried only by military courts martial, under the same rules and procedures as U.S. servicemen accused of similar offenses. Indeed, to subject them to trial in the U.S. civilian courts would be a serious breach of U.S. international law obligation to treat POWs in the same way as its own troops. Meanwhile, unlawful enemy combatants—individuals who did not comply with the four key criteria of lawful belligerency (did not wear an identifiable uniform or insignia, did not bear their arms openly, did not have a discernable chain-of-command, did not make an institutional commitment to comply with the laws of war)—can be punished for any and all of their unlawful acts, and are subject to the jurisdiction of military commissions.

Significantly, both lawful and unlawful combatants are liable to be detained for the entire duration of hostilities, to ensure that they do not return to the fight. The United States has evolved the world’s most elaborate military system for reviewing the enemy combatant classification decisions, as well as whether their continued detention is advisable. This system, with the Combatant Status Review Tribunals (“CSRTs”) as its key element, while not providing the same degree of due process protections as the criminal justice system, nevertheless furnishes unlawful enemy combatants with more rights than they are entitled under international law.

In the U.S. legal system, the civilian courts play a limited, essentially an appellate, role of reviewing at an appropriate time decisions rendered by the military justice system. Thus, in the famous World War II Quirin case (PDF), involving Nazi saboteurs, the U.S. Supreme Court upheld the verdict of the military commission, which sentenced most of the defendants to death. In another significant post-World War II case, the Supreme Court upheld the death penalty imposed by a military commission on the former Japanese commander in the Philippines, General Yamashita. While traditionally the civilian justice system was not engaged in reviewing the decision to classify an individual as an enemy combatant, and detaining him on that basis, in the post-9/11 legal environment, the civilian courts have begun to review such decisions through a habeas-styled process, albeit using a highly differential standard. Since the enactment of the Military Commissions Act of 2006, the D.C. Circuit has been designated as the court with exclusive jurisdiction to review the decisions of military commissions and CSRTs.

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