This article is contributed as a "Tribute to Andrezj Werner," the Founder of the Jean de Bloch Society in Warsaw, Poland and a fighter for justice and peace.

-Nicholas N. Kittrie, KStJ

PRIVILEGED AND UNPRIVILEGED/ UNLAWFUL COMBATANTS

Some 270 men of various nationalities are still being detained, by mid 2008, at the United States Army's Guantanamo Bay detention center, located in Cuba. The legal basis for these people's detention, which for some has lasted over six years, is their classification as "unlawful enemy combatants." Who are these "combatants"? Most have been brought to Guantanamo after having been picked up by United States and other officials in diverse countries throughout the world, rather than on the battle fields of Afghanistan and Iraq.

In the law of war, subsequently renamed the "Law of Armed Conflict" and more recently emerging as the "International Humanitarian Law," "distinction" is a cardinal principle. Alluded to in early customary law, confirmed by the United States in the Civil War's lieber Code ( 1863 )l and acknowledged by the international Declaration of St. Petersburg (1868),2 "distinction" serves to draw a firm dividing line between military personnel, which consist of combatants or belligerents who are subjected to the harms of warfare, and the non-warring civilian populations, which is to be protected from the ill effects of armed conflicts.

Whether derived from the chivalrous practices of medieval warfare, or deliberately adopted later to serve growing reciprocal humanitarian objectives, the prevailing international customs and laws of war guarantee captured and confined combatants-who had taken part in international armed conflictslenient, secure and respectful treatment. This humane policy was codified by the Hague Convention in the late nineteenth century and by the four Geneva Conventions of 1949.3

Customary international humanitarian law grants several important privileges to surrendered and captured, as well as to sick and disabled combatants (as distinguished from non-combatants), whether located on the battle field or in captivity. These privileges typically include: ( 1 ) international immunity from punishment for legally sanctioned wartime acts of violence and destruction (but not "war crimes"); (2) prisoner of war status, with its accompanying benefits, while in captivity; and (3) a post-conflict right to repatriation.

The Inter-American Commission on Human Rights had poignantly pointed out that in the conduct of hostilities, "the combatant's privilege... is in essence a license to kill or wound enemy combatants and destroy... enemy military [installations]."4 Disabled, surrendering or captured combatants may therefore not be refused quarter, nor be killed, wounded5 or prosecuted for their wartime hostilities, even if such conduct would have constituted serious crimes if carried out by non-combatants, or was undertaken by combatants in time of peace. This immunity from prosecution has been derived from the doctrine of Jean Jacques Rousseau who perceived war as a conflict between "public entities, not between individuals,"6 thus placing the responsibility for all wars on the state rather than on the individual combatants.

Combatants therefore remain immune from punishment for their very participation in hostilities, whether or not theirs is a "just" or an "unjust" and "aggressive" war in violation of the principle of jus ad helium. They must, however, in their wartime activities comply with the rules pertaining to the conduct of war, the jus in hello.

The 1907 Hague Convention on Land Warfare specified the qualifications of privileged combatants (referred to in the 1907 document as belligerents).7 To come within this category one need be a member of either a recognized country's armed forces or affiliated militia (as long as the latter is under responsible command and its members are identified by distinctive insignias, carry their arms openly and comply with the laws and customs of war). Citizens spontaneously rising against an invading army (the so-called levee en masse) also qualify as lawful combatants as long as they carry their arms openly and comply with the laws and customs of war.

The Geneva Prisoner of War Convention,8 the third of the four new humanitarian conventions adopted in 1949, similarly specified in Article 4 (A) comparable requirements for entitlement to the prisoner of war status. To qualify as a Prisoner of War (POW) one must have served in the armed forces of a party to a military conflict, or in a militia or volunteer corp under responsible command, wearing distinctive insignias, carrying arms openly and conducting their operations in accordance with the laws and customs of war.

With an ever increasing number of post-World War II armed conflicts consisting not of international wars but of internecine or intra-national hostilities, between sub-national political, ethnic and religious groups, or between them and the national governments, a new concern for the humane treatment and humanitarian law rights of the greatly enlarged body of nonstate belligerents had been manifested. How is international humanitarian law to respond to demands for combatancy status and prisoner-of-war privileges by domestic dissidents and human rights advocates, on the one hand, and by religious extremists and ethnic fanatics and terrorists, on the other? What should be the law's response to possible claims for privileged combatancy, for POW status and for repatriation by members of the Irish Republican Army, by Afghanistan's Taliban and Bin Laden's al-Qaeda loyalists, by Lebanon's Hezbollah militia-men and by Palestinian Hamas suicide bombers-or by other belligerents who altogether reject the customary and international laws of warfare?

Should these latter groups of non-state actors engaged in anti-state warfare and criminality, who usually defy all rules of international law of war, be considered combatants or international offenders? And if prosecuted should they be proceeded against exclusively under domestic criminal law rather than international humanitarian law? Moreover, could some of the abbreviated detention and trial institutions and procedures developed for the military forces, in conjunction with the law of war, be utilized to by-pass the cumbersome individual rights safeguards mandatory under traditional domestic or international criminal law? The United States retort to the Twin Towers bombing through a declaration of "war" on terrorism was undoubtedly due, at least in part, to the administration's quest for the least cumbersome procedures permitting the detention, confinement and interrogation of individuals on the mere suspicion of terrorist connections.

SHOULD SUSPECTED TERRORISTS BE TREATED AS POWs OR AS WAR CRIMINALS?

Despite repeated references by American government officials, military personnel, courts, legislators and the mass media to "unlawful combatants" and their detention, trial and punishment, the term "unlawful" combatant does not appear in the treaties and conventions that codify or modify the international law of war. Neither does the proposed alternative term "unprivileged combatants," preferred by the International Committee of the Red Cross (ICRC) and by counsel to the detainees, surface anywhere in the official terminology of international humanitarian law. Under the first and "unlawful" nomenclature, non-conforming combatants are perceived as virtual war criminals and are subject to military or martial law. Under the second and "unprivileged" nomenclature, members of this class may be entitled to some, if not all, of the prisoner of war and combatancy privileges or similar humanitarian safeguards. The unresolved controversy regarding the meaning, the legal requisites for, and the specific privileges or disabilities associated with either one of the two combatancy designations ("unlawful" versus "unprivileged") is clearly motivated by ideological as well as by practical considerations. But the disagreement may be attributed also, in great part, to the law of war's definitional imprecisions regarding both the combatancy and "prisoner of war" status.

It is with regard to these unlawful or unprivileged combatants-members of a category nowhere expressly mentioned or defined in the laws of war-that a legal and policy contest, commenced over 50 years ago, has been reignited after New York City's traumatic events of September 11, 2001.

It had long and generally been assumed in United States Military justice circles that belligerents in armed conflicts who were not acting on behalf or under the authority of a proper national sovereign, who otherwise failed to be properly identified by uniforms, insignias and weapons, or who violated the international laws of war, had forfeited their claim to combatancy status. It was likewise deemed reasonable that when belligerents surreptitiously carried out acts of espionage or sabotage, or engaged in perfidious practices, they also relinquished their claims to prisoner of war status and the derivative immunity from prosecution. By failing to comply with the requisite standards of combatancy the non-conforming belligerents were deemed unlawful combatants. Such status of unlawful combatancy had been considered, under prevailing United States legal doctrine, sufficient not only to deprive a combatant of a prisoner of war status and its derivative privileges but also to constitute him an offender against the law of war.

The United States Supreme Court, in the Ex Parte Quirin (1942)9 and Johnson v. Eisentragen (195O)10 decisions, adhered to that point of view. Exparte Quirin'ssix armed German-born individuals landed during World War II from German submarines at various United States Eastern seaboard locations. After discarding their German military uniforms the newly arrived proceeded in civilian dress to carry out multiple sabotage assignments. Captured, charged and tried before a military commission for (1) "being enemies... [they] secretly and covertly passed, in civilian dress, contrary to the law of war, through the military defenses of the United States for committing hostile acts";11 (2) violating Article 81 (giving intelligence to the enemy) and Article 82 (spying) of the United States Articles of War (emphasis supplied); and, (3) conspiring to commit these acts.12 All of the accused were found guilty and sentenced to death.

In reviewing their appeals, the United States Supreme Court noted that "from the beginning of its history this court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as enemy individuals."13 Addressing the conduct of enemy individuals during armed conflicts, the Supreme Court noted that the international law of war draws a sharp distinction between the armed forces of belligerent nations (members of which the court, alternatively and without differentiation, referred to as "combatants" or "belligerents") and their peaceful populations, or civilians. Distinguishing unlawful combatants from the lawful, and emphasizing that the latter were subject to detention as prisoners of war upon capture, the Court pointed out that unlawful combatants were to be tried and punished by military tribunals for acts which rendered their belligerency unlawful. According to the Court, "familiar examples of belligerents who are generally deemed...to be offenders against the law of war [and] subject to trial and punishment by military tribunals"14 included the spy without uniform who penetrates military lines in war time, or an enemy combatant who secretly and without uniform comes through the lines in order to destroy life or property. The Supreme Court enumerated other categories of unlawful belligerents listed in the War Department's 1914 Rules of Land Warfare: armed prowlers, saboteurs, destroyers of bridges, roads or canals, robbers of the mail and cutters of telegraph wires.15 The War Rules specified more generally, in paragraphs 348 and 351, that "men... who, without being lawful belligerents" commit hostile acts of any kind are not entitled to prisoner of war privileges and are to be punished as war criminals.

UNPRIVILEGED CONTRASTED WITH UNLAWFUL COMBATANTS

The frequently referred to Ex Parte Quirin opinion, which has come to be known as the controlling United States doctrine, had been challenged by several scholarly writers and international humanitarian law experts for over half a century. Many of the critics have favored a significantly different outcome. In an oft-quoted 1951 article on "So-called 'Unprivileged Belligerency': Spies Guerrillas, and Saboteurs,"16 Richard Baxter, a noted academic and international judge, argued vigorously that the so-called "unlawful combatants" (being those who do not qualify as lawful combatants under humanitarian law) should more accurately be labeled "unprivileged combatants." Unprivileged belligerency, Baxter urged, did not constitute an international crime and was not punishable by international law. Only domestic laws and tribunals, he asserted, had the authority to proscribe and punish as domestic crimes such instances of unprivileged belligerency.

In essence, Baxter distinguished between violations of the customary and convention derived rules that define lawful combatancy, which are punishable only in domestic law, and the commission of grave offenses against the laws of war (such as willful killing, or the destruction of the environment) which constitute internationally proscribed war crimes. Only for grave violations of the laws of war, according to him, may unlawful as well as lawful combatants be subjected to international prosecution as war criminals.

Both former United States Ambassador George H. Aldrich, in a 2002 article,17 and a 2002 American Society of International Law Task Force report, by Robert Goldman and Brian Tittemore,18 had taken strong exceptions to the United States Supreme Court's historical position in Ex parte Quirin. In their disagreement with the Ex Parte Quirin decision, the ASIL Task Force members reiterated that "unlawful" combatancy denoted only the accused lack the lawful combatant's privilege to take part in the hostilities. But "[m]ere combatancy by such persons is not tantamount to a violation of the [international] laws of armed conflict, although specific hostile acts may qualify as such."19 For their conclusions the ASIL reporters relied heavily on Article 44 (2) of the 1977 Protocol 1, hitherto unratified by the United States, which reiterates that "the sanction for a combatant, who fails to distinguish himself when so required, is trial and punishment for a breach of the laws of war, but not loss of combatant and prisoner of war status."20

The United States post-September 11 debate regarding the legal status of detainees was further complicated by the challenge to the very applicability of the international law of war to individuals suspected of connections with terrorist organizations. The United States administration, although conceding that the proclamation of a "war on terror" was without legal significance, had continued to claim that the United States was engaged in an armed conflict with Al Qaeda.21 At the same time a majority of military and political commentators have posited that the United States could not be engaged in an armed conflict, in the technical sense of that word, with Al Qaeda. Being an international organization engaged in hostilities against the United States, and constituting a "quintessential non-state actor," Al Qaeda possessed neither the necessary international legal personality nor the legal capacity to ratify and become a party to the Geneva humanitarian law conventions.

What indeed have been the practical implications of the controversy regarding the status of these unlawful/unprivileged combatants? What different outcome is to be derived from labeling such combatants as "unprivileged" rather than "unlawful"? Under Exparte Quirin only lawful or privileged belligerents qualify for prisoner of war status, while unlawful ones are not entitled to that designation. Protocol I of 1977, on the other hand, does not draw such drastic distinction between the lawful and the unprivileged combatants regarding the prisoner of war entitlement. Protocol I specifically provides that any person "who takes part in hostilities" and is captured "shall be presumed to be a prisoner of war" and no such prisoner of war status is to be terminated until such time "as his status has been determined by a competent tribunal."22

What is so significant about the combatancy and the POW status to account for the deep and continuing breach between Ex Parte Quirin and its opponents? The combatancy designation and the POW status clearly afford their beneficiaries significant privileges and safeguards against abuse. Furthermore, the interrogation of POWs is proscribed by implication by Article 9 of the 1907 Hague Convention.23 The detaining powers are obliged, moreover, to accord prisoners of war in their captivity "conditions as favourable as those for [their own]... forces..." and to provide them with daily food rations sufficient to keep them in good health.24 Similar guarantees are provided regarding prisoners clothing, hygiene, medical attention, religious and physical activities.25 Prisoners of war are also entitled to special assistance from the International Committee of the Red Cross and from other relief societies.

It is no surprise, therefore, that broadening the category of humanitarian law's beneficiaries is favored by human rights advocates. The ICRC undoubtedly also sees its specially recognized accessibility to disabled and surrendered combatants and POWs not only as an effective safeguard against the abuse of these captives but also as a unique recognition of its global moral authority.

THE END OF RECIPROCITY: PRIVILEGES WITHOUT RESPONSIBILITIES?

The quest for granting prisoner of war privileges to suspected belligerents in detention, whether or not they had complied with all the Hague and Geneva requisites for combatancy (which includes an undertaking of compliance with the laws and customs of war), has been vigorously resisted on several grounds, particularly for its lack of reciprocity. Insistence on reciprocity, meaning mutuality of duties as well as of privileges by all parties to international agreements, has long been considered an indispensible requirement of treaty law. The waiver of such reciprocity in the interest of securing a higher degree of humaneness for non-conforming belligerents, regardless of their own non-compliance, remains a highly contested objective. Especially in the face of adversaries who proclaim their disdain for all standards of international humanitarian law, such concession is likely to advance neither the credibility nor the universality of humanitarian law. Expanding the prisoner of war ranks by according privileges to participants in domestic armed conflicts will not only reward with impunity violators of humanitarian law but is also likely to contribute to an increase and intensification of violent domestic struggles against established regimes. Such self-defeating generosity cannot be expected from most governments in power.

The resolution of the "unlawful"/"unprivileged" combatant's status may not occur soon. But, especially in an age in which unorthodox and unrestrained combatancy of all types-including genocide and terrorismhas broken all bounds, where innocence is denied and indiscriminate violence is the order of the day, any relaxation of the laws of war which will lessen the duties and liabilities of the warrior community-particularly that made up of "unprivileged/unlawful" combatants-is likely to and indeed will send the wrong message.

REACHING BEYOND CRIMINAL LAW AND BELLIGERENCY: THE SPECTER OF PREVENTIVE DETENTION

A recent and most pressing opportunity for reassessing the standing, in international and domestic law, of organizations, collectives and individuals (so called "non-state actors") suspected of waging war against member nations of the international community came up in the aftermath of September 11, 2001. Taking notice of the United States non-official declaration of "war" against the Al Qaeda organization, a self-admitted culprit, America's Department of Justice, as well as the Department of Defense, were confronted with the difficult dilemma of what system of law should be applied against individuals and organizations suspected of this or other terrorist activities, memberships or sympathies. Was United States domestic and peacetime criminal law to be the legal instrument of choice? Or would a resort to the law of war (as codified by The Hague, Geneva and other conventions) provide a more appropriate and effective system for the detention, investigation, trial and punishment of terrorist culprits? By resorting to the "enemy combatants" label, the Bush Administration boldly and possibly hastily decided to proceed under the law of war.

The "enemy combatants" designation has ever since dominated the debate over how America's legal system is to best deal with terrorism suspects. The United States Administration's policy, based on the law of war's military modality, had appeared to offer the nation's security agencies comfortable and defensible opportunities for long-term detentions and interrogations of suspect "enemy combatants." In great part the government's decision was in response to a desire for wider presidential discretion and greater executive powers in the war against terrorism. The "war" was, alternatively, to be conducted in accordance with the criminal law modality, the various constitutional requirements under the 4th, 5th and 6th Amendments would have been invoked to block governmental power. In that case the detention of criminal suspects would have been limited by the requirement of magistrate-issued warrants. Arrest and search warrants would have needed a showing of "probable cause," and warrantless "searches and seizures" could not have been carried out unless in compliance with the limits of "reasonableness."

Furthermore, those in confinement would have been protected from interrogation without the presence of counsel, unless counsel was voluntarily and knowingly waived. Early preliminary hearings would have been required for those detained, including the opportunity to be released on bail. But these and other traditional constitutional safeguards were considered, at the time, as unreasonable barriers to the operations of national security by many law enforcements agencies. To effectively prevent terrorism's contemplated and future acts of violence (as contrasted with the criminal law's mission of punishing offenders for crimes already committed) it was considered imperative to follow up and investigate all national security leads and suspicions-whether probable and reasonable or not-as well as to confine and interrogate all suspects until their danger to national security had been disproven.

The "enemy combatancy" approach was clearly a deliberate departure from the criminal justice modality, relying instead on a modified law of war framework, which arguably fell under the Commander-in-Chief powers. The resulting procedures, with few if any safeguards against abuse, offered great temptations of power to those vested with responsibilities for national security and defense. It appeared that only under the law of war could alleged combatants be subjected to speedy capture and long term confinement. Only military procedure would allow the detention and interrogation of persons without establishing probable cause or reasonableness, without being blocked by recurring judicial reviews.

The deliberate choice of military justice after the tragedy of September 11, 2001 was substantially legitimated by Congress through the passage of the Military Commission Act (MCA) in 2006. The MCA identified "unlawful enemy combatants" (to include persons associated with the Taliban, Al Qaeda and specified terrorist organizations) and thereby denied their entitlement to the internationally recognized privileges of combatancy, such as immunity from prosecution for war-connected violence, and protection against extensive interrogation.

Terrorists, who operate secretly, who do not carry their weapons openly, who fail to identify themselves by insignias or uniforms, and who otherwise do not seek to comply with other internationally mandated criteria required for privileged combatancy status, have been designated by both the United States executive and legislative branches as unlawful enemy combatants, rather than criminal offenders against United States criminal law. As "unlawful enemy combatants," they were to be entitled to few of the privileges of lawful combatants and were to be burdened with tremendous liabilities; they could be seized without compliance with constitutional safeguards. They could be interrogated, held without trial until the government chose to release them, and were to be denied access to judicial review and counsel.

The law of war route appeared highly desirable and reasonable to the legal architects of America's war on terrorism. Not only did the approach seem proper under domestic law, but it also gave the appearance of complying with the law of war as pronounced during World War II by the United States Supreme Court in Ex parte Quirin (1942).

What the architects of the "enemy combatant" approach failed to appreciate was the complexity of international humanitarian law, the strength of the opposition, and the unending energy and litigiousness of their colleagues in the international humanitarian and human rights bars. There have been a series of cases questioning the Administration's application of a modified law of war or military framework for the purpose of detaining terrorist suspects. Among the most noted has been the case of Jose Padilla, a United States convert to Islam who was arrested at Chicago's O'Hara airport on May 8, 2002, upon his return from a trip that started in Pakistan. Padilla was suspected of involvement in a "dirty bomb" plot and of returning to America for the purpose of locating radioactive material that could be dispersed with conventional explosives. First detained on a non-criminal material witness warrant, Jose Padilla was transferred to a military brig in South Carolina. Insisting on his right to have his confinement reviewed through a habeas petition, his claim was finally upheld by the United States Supreme Court. Padilla was then returned from his military custody for trial in the civilian criminal justice system. After his five-year odyssey, Padilla was eventually tried and convicted, on August 15, 2007, in Federal District Court and was found guilty of conspiracy to commit violence and providing material assistance to terrorist organizations.

Responding to Padilla's conviction, retired Judge Michael B. Mukasey, who had originally ordered Padilla's 2002 arrest on the material witness warrant, wrote that "[tjerror trials hurt the nation."26 Mukasey, who subsequently became the United States Attorney General, recited the history of the Padilla litigation and found that "Padilla's case helps illustrate in miniature the inadequacy of the current approach to terrorism prosecutions."

This inadequacy was in part due to the difficulty of the Administration's legal architects in finding the appropriate legal arena as well as the process through which to combat terrorism. The difficulty was in choosing wisely between the traditional criminal process and an expedited law of war. This difficulty was well-demonstrated, as Judge Mukasey noted, by the proceedings in the Padilla case. The charges against Padilla originated in New York federal court; Padilla was then transferred to military custody in South Carolina where without benefit of legal counsel he allegedly confessed to the dirty bomb plot. From there he was transferred back to the criminal justice system to be tried, and ultimately convicted, in a Florida federal court, on different charges than those set forth in the initial New York criminal matter. Frustrated by this chain of events, Judge Mukasey saw the future thusly: "[Padilla] will appeal. By the time his appeals run out he will have engaged the attention of three federal district courts, three courts of appeal and on at least one occasion the Supreme Court of the United States."27

A still more direct challenge to the Administration's decision to rely on the law of war and the "unlawful" combatancy model came, in the case of Ali saleh Kahlah Al-Marri, from the United States Court of Appeals for the 4th Circuit. A citizen of Qatar and a legal resident of the United States, Al-Marri had been detained in military custody as an enemy combatant. Al-Marri's challenge of his detention, through a habeas corpus petition, was denied by the federal district court on the ground that the Military Commissions Act expressly disallowed judicial review of habeas corpus petitions by alien detainees held as enemy combatants. But the 4th Circuit Court decision, through Judge Motz, concluded that since Al-Marri could not correctly qualify as combatant under the law of war, he could not be properly deprived of his habeas corpus rights by the Military Commission Act which was specifically tailored to apply to enemy combatants.28

Relying on a previous United States Supreme Court decision in Hamden (2006),29 where the court found that the conflict between the United States and Al Qaeda in Afghanistan was not of an international character because it was not between two nations, Judge Motz found that conflicts not of an international character are governed by common Article 3 of the Geneva Conventions which nowhere mentions, recognizes, or authorizes a category to be known as "combatants." In the absence of a "combatant" category in conflicts not of an international character, the court concluded, Al-Marri could not be designated and detained as an "enemy combatant." By denying altogether the category of "combatants" (and as a consequence the designation of "enemy combatants") in non-international war, the AlMarri decision has challenged the very foundation on which the United States relied in making the law of war a key instrument in the legal campaign against terrorism.

Further undercutting the Administration's detention powers under the law of war modality, the 4th Circuit reiterated: "Of course, a person who commits a crime should be punished, but when a civilian protected by the Due Process Clause commits a crime he is subject to charge, trial and punishment in a civilian court, not to seizure and confinement by military authorities."30

It is no wonder then that those who had sought to rely on the principles and practices of the law of war to authorize the seizure and detention of suspected terrorists and their supporters received the 4th Circuit decision with great alarm. Describing the decision as granting "Impunity for Al-Qaeda," two Washington writers, David B. Rivkin Jr. and Lee A. Casey, the first having served in the United States Justice Department during the Ronald Reagan and the second during the George H.W. Bush administration, claimed that "the Al-Marri case was deeply flawed, and if widely adopted it would undermine a fundamental purpose of the laws of war: avoiding impunity for war crimes. .. .Only if the laws of war apply can the United States lawfully take the offensive against Al-Qaeda, seeking out and attacking with deadly force its operatives in Afghanistan, Iraq and elsewhere."31

Yet while the contest between the traditional post-hoc criminal justice law enforcement modality (ridden with many constitutional safeguards) and the exigency-driven and prevention-oriented law of war approach (supposedly burdened with less constitutional protections) is still going on, other, more experienced and what appear on first glance to be more moderate voices have entered the debate. One of the most prominent of these voices belongs to Judge Mukasey, speaking before his appointment as United States Attorney General, to the effect that the prosecution record against Al Qaeda and its affiliates since the first World Trade Center bombing in 1991 had been unsatisfactory.

The Attorney General puts forth three arguments for a new approach. First, "[C]riminal prosecutions have yielded about three dozen convictions, and even these have strained the financial and security resources of the federal courts near to the limits."32 Second, traditional criminal prosecution, the process of which is open to the press and public, "risk disclosure to our enemies of [our] methods and sources of intelligence33... [and] also discourages allies abroad from sharing information with us lest it wind up in hostile hands." Thirdly, Judge Mukasey asked his readers to "consider the distortions that arise from applying to national security cases generally the rules that apply to ordinary criminal cases."34 These distortions were nowhere specified by Judge Mukasey and are therefore left to speculation.

Judge Mukasey has been evidently dissatisfied with the use of the ordinary criminal law process for the legal pursuit of terrorists. He was keenly aware, likewise, of the previous roadblocks-evidenced by the avalanche of opposing lawyers, cases and legal decisions-in response to continuing efforts to deal with security suspects through resort to the military process and the combatancy model. He also took further notice of the United States Supreme Court's growing interventions in this arena which "may end up making [military] commissions...no longer possible."35

In conclusion Judge Mukasey asked: "What is to be done?" Answering his own inquiry he referred to several proposals "for a new adjudicatory framework."36 One such proposal was for the creation of a new and separate national security court "to deal with the full gamut of national security issues from intelligence gathering to prosecution."37 Judge Mukasey mentioned next, "more limited proposals" which "address principally the need to incapacitate dangerous people, by using legal standards akin to those developed to handle civil commitment of the mentally ill."38

But Judge Mukasey and the other authors of proposals referred to by him have not been the lone proponents of a new system of justice specifically designed to deal with national security suspects and issues. Two highly respected lawyers, Jack L. Goldsmith of Harvard Law School and Neal Kaytal of Georgetown Law Center, the first a former official of the United States Department of Justice in the George H. W. Bush administration and the second a counsel for the Guantanamo detainees before the United States Supreme Court, had floated in the press a similar plan for a "Terrorists' Court" that would implement a national system of preventive detention for suspected terrorists. After all, these later writers claimed, Congress and the Supreme Court have "long approved preventive detention for people who are dangerous to society-the insane, child molesters, people with infectious diseases, and the like-but who have not committed crimes."39

Judge Mukasey had not dismissed these proposals outright. Instead, he appeared to speak favorably of Britain's and France's laws authorizing the "investigative detentions" of terrorist suspects. Yet the recent proposals which had cropped up in America had gone beyond the European "investigative detentions" to propose "preventive detentions." These proposals amounted to granting governments the authority to detain, interrogate and hold for indeterminate lengths of time individuals for whom there was no evidence "beyond a reasonable doubt" that they had actually committed a terrorist crime, but where there was only an unspecified suspicion that they might commit such a crime in the future.

America's laws allow for such preventive detentions of the mentally ill through the so-called involuntary "civil commitments" to mental institutions. This model had been advocated and was experimented also with for the "treatment" of drug addicts, alcoholics and "sexual deviants" in earlier decades. It has also been upheld by the United States Supreme Court in recent times through reliance, considered by some as highly questionable, on the "civil" designations and the "treatment" assertions accompanying these physical confinements to justify their departure from the traditional safeguards of the 4th, 5th and 14th amendments to the United States Constitution.

It was a similar claim of national exigency, and very similar jurisprudential reasoning that led the United States Congress to pass the 1950 United States Emergency Detention Act.40 More than half a century ago, in the face of the growing threat of communism, Congress, after overriding a veto by President Harry Truman, passed the McCarran Act. Long forgotten by many contemporary lawmakers, that Act authorized the President, acting through the Attorney General, to detain "each person as to whom there is reasonable ground to believe that such person probably will engage in, or probably will conspire with others to engage in, acts of espionage or of sabotage."41

Although repealed in 1971,42 the McCarran Emergency Detention Act may not be totally dead. It may merely be waiting to be exhumed and revived to serve new wars, including the war on terror. For the time being, however, the law of war and the status of combatancy, whether privileged, "unprivileged" or "unlawful," continue to be highly contested topics calling for domestic as well as international clarifications.

"Preventive detentions" however, are by no means a modern or United States invention. The confinement at times of public exigency for indeterminate periods, of persons deemed to constitute a threat to the authority or security of government or its highest officials, goes far back into history. Subsequently, detention had been utilized by the European colonial powers, domestically by autocratic and military regimes, and for the control of restive overseas populations considered as preventive and social defense rather than punitive measures. These allegedly "non-criminal" practices had been immune to the traditional human rights safeguards attached to the criminal process. With the contemporary growth of the incidence of violence, terrorism, and belligerency worldwide not only newer, developing and less stable governments but also long established, constitutionally firm and developed nations have increasingly resorted to preventive detentions for the maintenance of law, order and national security. Whether designated as "preventive detentions" or "pre-trial detentions" all these measures are substantially similar in that they are implemented without prior judicial scrutiny, require a lesser evidentiary standard than the criminal law and are supported not by evidence of past criminality but by concern and presumptions regarding future misconduct.

There has been recently growing questioning, grave concerns and harsh criticisms of the expanding resort to preventive detentions, the substantial extension of the reach of existing laws, the lengthening of maximum detention periods,43 and the abuses permitted and promoted by these developments, voiced by numerous international human rights and allied advocacy groups. But current developments in international law have failed to vigorously address these troublesome developments.44 While the International Covenant on Civil and Political Rights (ICCPR),45 to which the United States is a party, recognizes the right of people to protection from "arbitrary arrest or detention" (Article 9), the rights specified by that article are not included in the list of non-degradable rights detailed in Article 4 of the ICCPR.46 This failure of inclusion appears to render arbitrary arrest and detention acceptable provided that a state officially declares an existence of a "time of public emergency which threatens the life of the nation" [ICCPR, at Art. 4 (1)].

Also generally unavailable or unexplored, thus far, as restraints against the procedural and substantive overreach of preventive detention, laws and practices, have been the diverse provisions for the protection of liberty contained in the United States Constitution. Insisting on a fundamental distinction, a distinction which has been increasingly demonstrated to lack substance, between the criminal process and civil commitments, United States legislatures and courts have on several occasions been willing to uphold preventive detentions as a non-criminal but civil process designed not to punish but merely to assist in society rehabilitative and social defense roles and therefore requiring less stringent constitution scrutiny. The involuntary commitments of the mentally disabled to institutions in an alleged effort to prevent harm to themselves or others, of the chronic alcoholics and drug addicts, under currently discredited treatment programs, and the more recent detention programs for sexual offenders, who had served the prison sentence imposed on them in the criminal process, have continuously gained the approval of the highest courts in the land, including the United States Supreme Court.47 It is therefore not too unlikely that a primary weapon, forged over fifty years ago in the face of America's war on communism, might be resuscitated in order to try out a new, if questionable, set of tools for pulling the contemporary and hitherto heavily burdened and not too successful legal campaign against terrorism and fanatic Islam out of the legal morass.