Ron Smith: Captives of the War on Terror

In my earlier posting on ‘BreakingViews’ (‘Prisoners and War – Why we need Guantanamo’) I argued that, on the basis of international law, American authorities and, indeed, other Western states, could consider the Christmas Day bomber and any other captives of the ‘war on terror’, as either ‘enemy combatants’ or as criminals. I now want to argue that there are sound prudential reasons for choosing the former and considerable disadvantages in choosing the latter.

To begin with, Umar Farouk Abdulmutallab and those who trained and sent him are clear that they are engaged in holy-war, a jihad. Some in the West, and particularly President Obama, have been reluctant to accept this but it is manifestly the case. Even President Obama seems more recently to have come round to this view.

Similarly, we ought to see that we are engaged in a war. At its conceptual heart, ‘war’ entails the use of violent means to achieve political ends. In the case of the loosely-coordinated jihadist campaign against the West there is a definite, if rather optimistic goal, of bringing the world to Islam and thus ending the threat that the West is thought to pose to traditional Islamic culture. And there really isn’t any doubt that the means involve lethal force. Even if the structure of this movement is very loose, there is a seeming unity of purpose and a level of cooperation and mutual inspiration. It is war for them and it is war for us, even if it does not conform to the more traditional paradigm associated with the major conventional wars of recent history. Our aim must surely be to prevent the goal our adversaries seek from being achieved, by killing or capturing their combatants and frustrating their purposes.

For this reason, captured jihadists need to be held until such time as they would no longer be a threat, if released. On present indications this may be a very long time but our duty to our citizens and our interests demands no less. It is the military equivalent of preventive detention. Looked at this way, the incarceration of captured jihadists requires no legal proceedings, even if they are war-criminals, in the sense that they have breached the laws of war. Their period of detention would be unlikely to be affected by any sentence imposed from such proceedings, other than the death-penalty, and there might be good prudential reasons for not entertaining that.

Particularly, it would seem undesirable to engage in proceedings in domestic civil court. There is a monumental irony in offering the freedoms and chances of a liberal judicial system to those whose purpose was precisely to destroy such systems. More importantly, it needs to be recognised that such proceedings have the potential to compromise security through the opportunity they present to expose security measures and intelligence practices, at the same time as limiting the opportunity of gleaning valuable intelligence from the ‘defendant’ him/herself. Interrogation of Abdulmuttalab lasted less than an hour before he was provided with a lawyer, who advised him to say nothing. Civil legal processes also give captured enemy combatants a golden opportunity to proselytise for their cause and there is always the possibility that mistakes regarding the rules of evidence could give rise to embarrassing outcomes. Why would a country at war risk this?

In addition, there is the question as to where sentences arising from such processes would be served, and what would happen when the prescribed period came to an end. It is clear that if the answer to the first of these questions was in a civil prison, there would clearly need to be special security arrangements. For this reason, it would be absurd if all such prisoners were not held in the same facility, since this security would otherwise have to be expensively duplicated. If the answer to the second question (about the period of incarceration) is that such prisoners would not be released until they were no longer a threat (because the war is over), then why not move directly to this situation by taking the persons concerned to be enemy combatants from the outset. On the other hand, if the intention is to release such persons whilst the conflict was still going on, there is clearly a risk that the fighter returns to the conflict. There are apparently already examples of this from Guantanamo and there is also the well-known case of Mairaid Farrell. Ms Farrell was an IRA operative who was captured in Northern Ireland and served a ten-year prison term for terrorist activities. On release she immediately resumed her activities, only to be shot in 1988 by British Special Forces whilst in the process of attempting to bomb the crowd at a military parade in Gibraltar.

Treating captured enemy combatants as simply prisoners for the duration of the war also has a considerable advantage for partners (allies) in the war on terror. All captives might then be held in a single facility, dedicated to this purpose and all the partners might then play some part in its administration. The alternatives are to determine that no prisoners will be taken, which is contrary to Geneva (which forbids the refusal of ‘quarter’) or to hand over any prisoners that are taken to other parties. This is clearly what is presently happening. If we are concerned on humanitarian grounds, it might be better, though, to handle the incarceration (and the concomitant opportunity for intelligence gathering) ourselves. We can then determine the character of the regime and take responsibility for it, as well as determine when prisoners are released.

The conclusion is the same as last time. The ‘War on Terror’ needs a high-security facility to hold captives until the war is over. Guantanamo Bay is clearly set up to discharge this role and it would be foolhardy to close the facility on what seem to be largely ideological grounds and leave ourselves with alternatives, all of which are worse.