What to Do with Bin Laden and Al Qaeda Terrorists?: A Qualified Defense of Military Commissions and United States Policy on Detainees at Guantanamo Bay Naval Base

Abstract:     
This article, published in a special post 9-11 issue of the Harvard Journal of Law & Public Policy, offers a defense of the view that terrorists such as Osama Bin Laden should be tried, if captured, outside of regular US civilian courts and in some form of military commission.

The article argues that terrorists should be seen as criminals as well as enemies of the United States. Criminals who are simply deviants from the domestic social order are properly dealt with within the constitutionally constituted civilian court structure. Enemies who are not also criminals - legal combatants - are properly prisoners of war. Transnational terrorists are, however, best understood as both criminals and enemies - entitled neither to the full constitutional protections of the domestic political community but also not entitled to the protections as POWs.

The article analyzes the Third Geneva Convention and the requirements to be a legal combatant, as well as the procedures for determining who is or is not a legal combatant, and notes that the literal language of Article 5 of the Third Geneva Convention does not require that a tribunal be constituted to make such determinations although, as a matter of policy, the article urges that 1997 Department of Defense regulations establishing such military tribunals be used.

Keywords: International law, international humanitarian law, Geneva Conventions, laws of war, armed conflict, terrorism, military commissions, constitutional law, prisoners of war, legal combatants, unprivileged belligerent, illegal combatant, Protocol I, Al Qaeda

JEL Classifications: K10, K14, K33

Accepted Paper Series