Byline: David B. Rivkin Jr. & Lee A. Casey, SPECIAL TO THE WASHINGTON TIMES
In recently striking down military commissions, the Supreme Court has given Congress a golden opportunity to resolve once and for all how enemies captured in the war on terror should be processed. Despite the various claims made about the breadth of the Hamdan v. Rumsfeld decision, the court ruled narrowly that the current military commissions failed to comply with a statutory requirement mandating absent a showing of impracticability that their rules and procedures must be the same as those in regular courts martial. In fact, there are compelling practical and principled reasons for not running the courts martial and military commissions in the same manner, and Congress should amend the law accordingly.
Courts martial are bodies before which American service members, and other "lawful combatants" entitled to prisoner of war status under the Geneva Conventions, are tried for transgressions against the laws of war and military regulations. Lawful combatants, even those accused of the most serious misconduct on an individual basis, comply with the basic requirements of the laws of war as a whole. Most importantly, they distinguish themselves from the civilian population by wearing uniforms and carrying their arms openly. They do not target civilians for attack, and, indeed, conduct their operations in ways designed to minimize injury to civilians and civilian property. These measures put lawful combatants at greater risk of injury or death, and make accomplishing their missions more difficult. However, compliance with these basic rules also alleviates much wartime suffering; these rules were developed over centuries with that fundamental goal in mind.
By contrast, unlawful combatants, like members of al Qaeda and the Taliban, do not distinguish themselves from surrounding civilians. Indeed, they purposefully use the civilian population as cover for their operations and when it suits their purposes deliberately target civilians for attack. Unlawful combatants throughout the ages have been considered the enemies of humanity. Such is the danger posed by unlawful combatants to civil society, and so compelling is the need to deter this behavior, that simply taking up arms with an entity like al Qaeda regardless of an individual's actual contribution to the group's efforts has traditionally been considered a grave offense.
Accordingly, unlawful combatants have not earned treatment identical or substantially similar to that accorded to lawful combatants, and it should not be given to them gratis. To do so would only allow al Qaeda to benefit from its own illegal conduct, and it would also serve to legitimize its despicable methods of "asymmetric" warfare. Congress can and should make this clear by itself establishing military commissions to try captured unlawful combatants, and by specifying that …