This week, retired Gen. Wesley Clark and UCLA law professor Kal Raustiala penned what might be the least persuasive op-ed of the new millennium in the New York Times. Clark and Raustiala argue that we shouldn't treat members of al Qaeda as enemy combatants because such a designation is too high a compliment. "Labeling its members as combatants elevates its cause and gives al Qaeda an undeserved status," they argue. Therefore, they conclude, "the more appropriate designation for terrorists is not 'unlawful combatant' but the one long used by the United States: criminal."

They do not address the fact that under our system of law, "criminal" is the most advantageous designation a terrorist can get. It comes with all sorts of rights and rules terrorists can exploit: Miranda, speedy trials, the right to see classified evidence, the benefit of a reasonable doubt, the right to remain silent, etc.

We did not designate al Qaeda "enemy combatants" to elevate their status but to lower it. Under current treaty obligations, if we viewed al Qaeda as actual soldiers, they would be entitled to the protections of the Geneva Conventions even though they reject those conventions themselves.

And if we treated them like criminals under American law, we'd have to launch CSI: Kabul, collecting evidence for every "arrest." Clark and Raustilia say al Qaeda terrorists are more like pirates. But last I checked, Blackbeard wasn't interested in imposing a worldwide theocracy, and his henchmen weren't keen on blowing themselves up to achieve it.

If treating terrorists like any other criminals is such a good idea, why don't they recommend such an enlightened approach to Israel? After all, when Hezbollah rains down rockets on your cities, the sagacious response is to issue an arrest warrant and convene a grand jury.

We obviously need rules for dealing with people we capture, which is precisely what the Bush administration has been trying to establish. But saying that we should treat terrorists like criminals is to argue for doing less than nothing.
-- Jonah Goldberg, NRO

Labels: enemy combatants, gitmo, guantanamo, intelligence, interrogation

Hollywood Interrogates Al Qaeda
By KYNDRA ROTUNDA
April 18, 2007; Page A16

CBS's hit series "Criminal Minds" recently aired an episode entitled "Lessons Learned," where FBI agents traveled to Guantanamo Bay and coaxed a confession from a known terrorist detainee that led to the prevention of an anthrax attack on a Northern Virginia shopping mall. The point of the story was that the regular interrogation tactics (pictured as brutal assaults on the prisoner) were not working, and that the military should adopt the enlightened methods of the crack interrogators from "Criminal Minds."

Having served as an Army Judge Advocate General's Corps officer in Gitmo, a legal adviser to criminal investigators pursuing leads in the war on terror, and a Military Commissions prosecutor, I have first-hand knowledge and experience about what happens there. And here is the ironic truth: The military has outlawed some of the "Criminal Minds" interrogators' tactics -- in response to pressure by the international community.

On TV, an analyst observed the detainee's behavior from an adjoining room behind two-way glass for revealing body movements and language. Subtle movements and body language signaled which statements were true and which were false, leading to a breakthrough that saved lives. In reality, when such a tactic was used at Gitmo the International Committee of the Red Cross (ICRC) called it "torture." Gitmo authorities used to employ Behavior Science Consultation Teams (BSCTs, pronounced "biscuits"), trained psychologists/psychiatrists who did exactly what the TV analyst did: used psychology to help interrogators learn the truth. But the ICRC considered their role in planning and assisting with interrogations "a flagrant violation of medical ethics." The military responded by curtailing the role of BSCTs.

On TV, CIA and FBI interrogators used the detainee's religion to gain leverage. The CIA interrogators refused to allow the detainee to pray; then the FBI allowed the prayers but adjusted them to manipulate the detainee's sense of time. Because of the manipulation, the detainee admitted responsibility for an attack that he incorrectly believed had already occurred, allowing the attack to be thwarted. In reality, the U.S. does not manipulate detainee's religious practices. In Gitmo, everything stops, including interrogations, so detainees can pray. The Islamic call to prayer is broadcast, several times a day, over loudspeakers. Everyone in and around the detention camp is forced to listen.

On TV, the interrogators give the detainee a prayer mat and point out the direction to Mecca to win his gratitude. In reality, the U.S. gives religious items such as prayer mats, prayer caps, prayer oil, prayer beads and Qurans to all detainees. They don't need anyone to point out the direction of Mecca because the U.S. paints black arrows on the ground pointing toward Mecca in every cell and around the camp.

In fact, at Camp Bucca, a U.S.-run detention camp in Iraq, the U.S. erected a tent as a makeshift mosque and designated it off-limits to prison guards so that detainees could pray in solitude. The detainees used their privacy to turn the "mosque" into a weapons cache, and then attacked the prison guards. This led to a battle for control of the camp that lasted four days.

Despite the debacle at Camp Bucca, the military still designates some items (such as the Quran) as "off-limits" to prison guards, even though detainees misuse the Quran to conceal illegal contraband, including prescription pills. U.S. forces in Gitmo go to these great lengths despite the fact that the Geneva Conventions provide for POWs to practice their religion only "on condition that they comply with the disciplinary routine prescribed by military authorities."

On "Criminal Minds," the detainee glanced toward bottles of water lining a table, and said, "They line it up to show what I cannot have." In reality, detainees at Gitmo receive ample food and water, including Halal meals and imported seasonal fruits and nuts from their native countries for special occasions.

While the crime show's creators must resort to fiction to depict interrogations, they don't have to fictionalize the contempt that most detainees show for Americans. Hollywood gets that part right. On TV, the fictional detainee said of killing innocent Americans: "There is no such thing, they were infidels . . . they hurt me by existing! The infidels will fall at the hands of the righteous, and that is when the jihad will end."

In reality, according to Gitmo's Web site, one detainee said, "The people who died on 9/11/2001 were not innocent . . . my group will shake up the U.S. and the countries who follow the U.S." Another told military police officers that he would "come to their homes and cut their throats like sheep." Yet another detainee threatened, "I will arrange for the kidnapping and execution of U.S. citizens living in Saudi Arabia. Small groups of four of five U.S. citizens will be kidnapped, held and executed. They will have their heads cut off." These real statements make one thing clear: life in Gitmo has not broken the detainees' spirits.

Hollywood sets unrealistic expectations for many things. The "Criminal Minds" episode represents one instance where truth is tamer, and many would argue stranger, than fiction.

Ms. Rotunda teaches at George Mason School of Law and is director of the law school's clinic that provides pro bono legal assistance to military families. She is currently writing a book about legal issues in the war on terror

Labels: al qaeda, geneva, gitmo, guantanamo, interrogation, tribunals