NEW HAVEN It makes no sense to win a trial but lose the war. With this in mind, a majority of the American public favors giving President Bush the option to use military tribunals against the Qaeda terror network.
The tribunals are designed to permit a "full and fair trial" of war crimes without compromising our ability to track the network's future plans. Al Qaeda's skill at countersurveillance has made plain the need to protect sensitive intelligence sources at trial.
But some international-law scholars suggest that President Bush's plan for military tribunals itself violates international law. This view is based on a serious misreading of international treaties on how wars should be fought.
Afghanistan and the United States have a few things in common. Each has ratified the third Geneva Convention of 1949, which sets out basic protections for prisoners of war. But such prisoners must be defined as lawful combatants for the treaty to apply.
There are four key prerequisites. First is being part of a fighting force that adheres to an organized structure of command, so someone can be held responsible. Second is wearing a distinctive military uniform or insignia so that the other side can spare civilians without fearing counterattack by disguised fighters. Third is carrying arms openly. And fourth is reciprocal respect for the laws of war. To claim the protection of the law, a side must generally conduct its own military operations in accordance with the laws of war.
Al Qaeda has violated these laws at every turn, and certainly in the Sept. 11 attacks. In protecting and harboring Osama bin Laden and his operatives, the Taliban leadership has also become party to the violations.
The traditional fate of unlawful combatants has been nasty, brutish and short, in tribute to their chosen form of warfare. Francis Lieber, a Columbia University professor and founder of the modern law of armed conflict in America, bluntly advised the Union Army in 1863 that guerrillas, spies and saboteurs could be summarily shot.
It was more than 100 years later, in the politically fraught setting of the 1970's, that Lieber's rule of lawful combatants came under scrutiny. It was challenged in negotiations on a new protocol for international war. Some countries favoring the overthrow of regimes of "colonial domination and alien occupation" the language used in the protocol argued for a new indulgence of guerrilla tactics, where combatants are disguised in a sea of civilians.
The illusory "step forward" of the draft 1977 protocol was to suggest that P.O.W. privileges should be accorded to combatants even when they disguise themselves as civilians. The United States refused to ratify this protocol, arguing that it lessens protections for civilians as well as for American forces. (Afghanistan also failed to ratify it.)
But this hard legal fact has not stopped some scholars of international law from asserting that President Bush's plan to create military tribunals should be rejected on the grounds that it violates international law as applicable to prisoners of war.
In any event, critics should be assuaged by the fact that the proposed rules for military tribunals will incorporate many legal principles that apply in American courts. According to recent news reports, the tribunals will allow some form of appellate review or petition for Qaeda suspects. The legal standard for proof of guilt is that it be beyond a reasonable doubt. Defendants will be able to select civilian counsel, which will serve alongside military defense counsel. They cannot be subject to the death penalty except by unanimous decision.
But it would be a mistake to demand for Al Qaeda and the Taliban leadership the full protections accorded armies that respect the law of war. The military tribunals established by the presidential order are required to provide "full and fair" justice, but they should not be measured by a false standard.
The recent event involving the near ignition of a shoe bomb on an airplane is a strong reminder that the threat of terrorism still confronts us, whether from Al Qaeda or other groups. Al Qaeda has chosen tactics that specifically target civilians. The extraordinary protections that we provide in domestic trials, including trials under the Uniform Code of Military Justice for disciplinary offenses, should not be granted to combatants who have trampled on the laws of war.
Ruth Wedgwood is a professor of international law at Yale Law School and Johns Hopkins University.