The Fitzgerald appointment, mentioned in passing by The Washington Times on March 15 and more fully reported by Newsweek on March 19, has at this writing been virtually ignored by almost all other news organizations. But it raises interesting questions.

The lawyers reportedly had private investigators surreptitiously take photos of men thought to be CIA interrogators, and then showed them to at least one of the four men accused along with Khalid Shaikh Mohammed of conspiring to launch the 9/11 attacks. In at least one instance, photos were said to have been found in a detainee’s Guantanamo Bay cell.

The tapping of Fitzgerald, the U.S. attorney in Chicago, may suggest that the Justice Department is taking very seriously an inquiry into the photo situation that was first reported last August by The Washington Post. Fitzgerald is an exceptionally aggressive prosecutor who is known for his investigation of Bush administration leaks of then-CIA agent Valerie Plame’s identity and his corruption indictment of former Illinois Gov. Rod Blagojevich.

The use of CIA operatives’ photos by ACLU-funded defense lawyers reinforces my concern that conventional rules of criminal justice and legal ethics — which tend to support what the lawyers reportedly did — may not be the best way to deal with mass-murder terrorists who wage war against the United States.

A 1982 federal law makes it a felony to knowingly disclose "any information that identifies an individual as a covert agent to any individual not authorized to receive classified information," if done as part of "a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign-intelligence activities of the United States." Other laws and military-commission rules ban disclosure of classified information generally, including covert agents’ identities.

I doubt that any lawyer will or should be prosecuted based on what has been reported so far. But whether this was admirable conduct, and whether we should want defense lawyers using such tactics in terrorism cases, are different questions.

I say this as someone who has denounced the efforts of hard-right conservatives to smear as disloyal several other lawyers now working in the Obama administration’s Justice Department (including a friend of mine) who previously represented Guantanamo detainees.

The investigation now headed by Fitzgerald appears focused on the activities of the John Adams Project, a joint effort of the ACLU and the National Association of Criminal Defense Lawyers. The project reportedly spent $4 million between April 2008 and the fall of 2009, when it was disbanded, to assist military lawyers in defending against military-commission prosecutions of terrorism suspects.

(Holder announced last November that the administration would transfer the 9/11 case from the military commission to a civilian federal court in New York City, a decision that now — according to multiple news reports — seems likely to be reversed.)

Anthony Romero, executive director of the ACLU, told Newsweek last week (as he had hinted to The Post last August) that the John Adams Project hired private investigators to track down and identify CIA operatives involved in "torture."

"It would be an essential part of any defense to cross-examine the perpetrators of torture," Newsweek quoted Romero as saying. He added that "to our knowledge," the 9/11 conspiracy suspects "were not told the identities of the CIA officers."

ACLU spokesman John Kennedy told me that "John Adams Project attorneys at all times adhered to the law and fulfilled their ethical obligations."

Does this mean that a lawyer for a terrorism suspect accused of mass murder has a right — or even an ethical duty — to secretly procure and show his client photos of covert CIA agents who may have interrogated the client?

Maybe so, if such defendants are to be prosecuted under the conventional criminal-justice rules — rules that prevail, by the way, in military commissions as well as in civilian federal courts.

Two leading legal-ethics experts — Monroe Freedman of Hofstra Law School and Stephen Gillers of New York University Law School — told me that (in Freedman’s words) "both ethical rules and Supreme Court precedents require criminal defense lawyers to do everything within reason that is ethically and legally possible on behalf of the client."

Were the photos shared with any of the left-leaning lawyers campaigning for foreign prosecutions of Bush administration officials?

Similarly, a criminal defense lawyer whom I hold in high regard (and who would not speak for attribution because of his relationship with the ACLU) asserts that it would be entirely appropriate for any 9/11 defendant’s lawyer to investigate his client’s CIA interrogators and show their photos to his client. (He added that leaving photos with the client might tempt a prosecutor to bring charges based on the remote chance that they might be smuggled to other terrorists, putting the agents at risk.)

But Kenneth Anderson, an American University law professor who has written widely on terrorism issues, said that the defense lawyers’ reported use of CIA agents’ photos "sickens and disgusts me." Me, too.

Anderson does not claim (nor do I) that anyone violated any law or ethical rule. But he does say that the defense lawyers’ reported conduct "unintentionally supports the position of some conservatives that such cases should treated as matters of war, not criminal law."

The Justice Department investigation began last year after about 20 color photos of CIA officials (according to Newsweek) were discovered in the Guantanamo cell of Mustafa Ahmed al-Hawsawi, one of the five 9/11 defendants.

The August 21 Post article reported that FBI agents had questioned military defense lawyers about whether they had shown their clients photos of covert CIA officials that had been "in some cases surreptitiously taken outside their homes." The Justice Department cleared the military lawyers of any wrongdoing months ago, according to the March 19 Newsweek report by Michael Isikoff and Mark Hosenball. (I am an occasional contributor to Newsweek.)

But the investigation of the John Adams Project lawyers "was given new urgency after the discovery last month of additional photographs of interrogators at Guantanamo," Bill Gertz reported in The Washington Times on March 15.

CIA officials have told the Justice Department that the defense lawyers’ use of the photos could expose agents and their families to terrorist hit squads.

This concern might seem far-fetched if — as the ACLU has suggested — the 9/11 defendants were shown the photos but were given no other information that could lead to exposure of the agents’ names or whereabouts. But Romero’s statement that the 9/11 conspirators were not told the agents’ names "to our knowledge" is not entirely reassuring. Nor is the fact that some of the photos were apparently left with — rather than just shown to — a detainee.

One also wonders: How widely were the photos and names of covert agents disseminated within the defense camp? Were they also shared with any of the left-leaning lawyers who have been campaigning for foreign prosecutions of Bush administration officials for "torture" if the U.S. will not prosecute them? Or shared with the European investigators, human-rights groups, news organizations, and others who have made lists of CIA interrogators, station chiefs, and associates who may have been involved in interrogations?

At least one senior Justice Department official, Donald Vieira, was skeptical of CIA complaints that showing covert agents’ photos to terrorism suspects could jeopardize the agents and their families or amount to a crime, according to Gertz’s March 15 article. But Vieira later recused himself from the case, and now Holder has brought in Fitzgerald to run the investigation.

Fitzgerald did not charge anyone with a crime for leaking the identity of Plame, whose husband, Joseph Wilson, was a vocal critic of Bush. But the special prosecutor did win a conviction of I. Lewis (Scooter) Libby, Vice President Cheney’s former chief of staff, on charges of grand jury perjury, false statements to the FBI, and obstruction of justice.

Holder’s choice of Fitzgerald to lead the current investigation seems wise, because if he ends up deciding that no crime was committed, as I suspect he will (and should), it will be hard for conservative critics to accuse Holder of favoritism toward left-leaning Guantanamo defense lawyers.

But if the lawyers’ conduct becomes widely publicized, "ordinary people will" — and should — "recoil from the idea of sharing CIA agents’ photos with alleged terrorists," in Anderson’s words.

And that may lend plausibility to the view of Benjamin Wittes of the Brookings Institution and Jack Goldsmith of Harvard Law School, in a closely argued March 19 Washington Post op-ed, that the best resolution of the bruising debate over where to try the 9/11 defendants — who can be detained indefinitely as enemy combatants — may be: "Don’t bother trying them at all."

This article appeared in the Saturday, March 27, 2010 edition of National Journal.

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This was perhaps the most chillingly outrageous, widely quoted statement by a government official to be aired by Senate Armed Services Committee Chairman Carl Levin, D-Mich., at hearings last summer and in the committee’s December 11 report on abuse of detainees by U.S. forces.

But the quoted official, CIA lawyer Jonathan Fredman, told the committee on November 18 that he had made no such statement. In fact, Fredman added in a heretofore confidential, five-page memo, he had stressed at the 2002 meeting with interrogators at the Guantanamo Bay detention facility described in the Levin committee’s report, "Interrogation practices and legal guidance must not be based upon anyone’s subjective perception" (emphasis added) but rather upon "definitive and binding legal analysis."

The overall effect of selective reporting by many critics has been to paint honorable former and current officials as a bunch of sadistic war criminals.

Remarkably, the 18-page report issued by the committee (headed "Executive Summary") does not mention Fredman’s vehement — and, in my view, quite plausible — denial of the horrifying words attributed to him in a document of debatable reliability that the report, and Levin, have treated as established fact.

Asked to explain, a staffer said that someone had contacted the committee on Fredman’s behalf in July and that the response was "we wanted to talk to him." However, the committee heard nothing further until Fredman’s memo arrived on November 18, three days before members voted on the report. (The CIA does not usually allow employees to talk to the Levin committee.) The report then went to classification review — most of it is still classified — and only technical edits could be made, the staffer said. The staffer added that Fredman’s memo did not make entirely clear which of the statements attributed to him in the document he denied making.

But the fact remains that the committee had Fredman’s memo in hand 23 days before it issued its public "Executive Summary" without mentioning the denial. If a newspaper did that, it might be on the losing end of a libel suit.

The Levin committee’s shabby treatment of Fredman is illustrative of a pattern. To be sure, the report makes a valid case that the military’s abuse of numerous detainees between 2001 and 2004 "cannot simply be attributed to the actions of a few ‘bad apples’ acting on their own," as Bush apologists have sought to do with diminishing credibility; the abuse was, to some extent, spurred by high-level decisions.

But Levin undermines his own credibility by overstating the evidence of high-level complicity in the most shocking abuses at Iraq’s Abu Ghraib prison and in Afghanistan, and by depicting so many officials as villainous.

One wonders how many other inconvenient facts the drafters of the report chose to omit. And one begins to notice other tendentious passages. Most are accurate as far as they go. But their wording misleadingly intimates that the undoubted approval by top-level Bush administration officials of near-torture (if not torture) of a relatively small number of high-value detainees, and the undoubtedly widespread abuses of a great many more low-level suspects and wrongly detained innocents, were part of a grand and broad conspiracy to inflict sadistic torture and commit other illegal abuses.

Take the report’s conclusion that Defense Secretary Donald Rumsfeld’s December 2, 2002, authorization of aggressive interrogation techniques for use at Guantanamo, on the recommendation of then-Pentagon General Counsel William J. Haynes II, "influenced and contributed to the use of abusive techniques, including military working dogs, forced nudity, and stress positions, in Afghanistan and Iraq."

This is true to a point. And some criticism of Rumsfeld and Haynes is warranted. But the report’s language might also foster an impression, unsupported by the evidence, that Rumsfeld, Haynes, and other top officials intended to encourage the widespread, wanton abuse of prisoners that Abu Ghraib came to symbolize.

And although the report mentions waterboarding — the most notorious interrogation method used by the CIA — it glides past the fact that no military detainee was waterboarded because, on Haynes’s advice, Rumsfeld denied an October 2002 request from Guantanamo’s commander to authorize waterboarding by military interrogators.

Nor does the report mention the fact that in September 2002 and thereafter, leading congressional Democrats including Rep. Nancy Pelosi of California, now House speaker, raised no objection when briefed on waterboarding and other interrogation methods.

The report dismisses with scorn the Bush team’s view that terrorists were unprotected by the Geneva Conventions, while ignoring the fact that this view had deep historical roots and was defended by highly respected scholars.(The Supreme Court rejected this position in 2006.)

The overall effect of such selective reporting by many critics — including human-rights activists, authors, and commentators far less judicious than Levin — has been to paint honorable former and current officials as a bunch of sadistic war criminals. All of this feeds the deeply destructive clamor for "bringing criminal charges" — in the reckless words of a New York Times editorial — against Rumsfeld, Haynes, and perhaps others.

To the contrary, these were public servants seeking to protect the country from terrifying threats, who sometimes went to extremes that seem unwise to people (including me) who have the luxury of judging from the sidelines, with benefit of hindsight.

A closer look at the Levin committee’s treatment of Jonathan Fredman provides a window into the kind of unfairness to which many officials have been subjected.

Fredman’s supposed statements came during a discussion of aggressive interrogation techniques including sleep deprivation, death threats, and waterboarding at an October 2, 2002, Guantanamo staff meeting. During a brief visit to the prison camp, Fredman, then chief counsel of the CIA’s Counterterrorist Center, had been asked to advise about legal restraints on tough interrogations.

Levin’s much-publicized quotation, at a June 17 hearing, of the statement that "if the detainee dies you’re doing it wrong" came months before Fredman’s denial. But how hard did Levin and his staff try to check the accuracy of the allegation before the chairman condemned him?

Fredman’s denial was known to Levin’s staff, and presumably the chairman himself, when they issued the committee’s December 11 report. And there had been reason all along to wonder about the reliability of the document on which the panel relied, headed "Counter Resistance Strategy Meeting Minutes." One of the statements that the "minutes" attributed to Fredman, for example, was absurd on its face and obviously garbled: "In Turkey, they say that interrogation at all, or anything you do to that results in the subject betraying his comrades is torture."

But instead of acknowledging the shakiness of the "minutes" — and despite the fact that the first page states in bold type that "all questions and comments have been paraphrased" — the Levin committee’s report put Fredman’s supposed statements in quotation marks.

"I did not say the obscene things that were falsely attributed to me [by Levin] at the Senate hearing," Fredman told the committee in his November 17 memo. To the contrary, "I … emphasized that all interrogation practices and legal guidance must not be based upon anyone’s subjective perception; rather they must be based upon definitive and binding legal analysis from the Department of Justice; that DOD must ensure that its treatment of detainees is fully lawful and authorized by the military chain of command; … and that comprehensive investigations must be conducted should a detainee pass away."

(The memo was shown to me by a source outside the executive branch. When I called Fredman, he said that under CIA rules, he is not at liberty to comment.)

This is not to suggest that Fredman denies making all of the controversial statements attributed to him in the committee’s report. The report (and the "minutes") may well be accurate in stating that he had described the vaguely written criminal law against torture as banning only physical pain so severe as to cause permanent damage to major organs or body parts and mental pain so severe as to lead to permanent, profound damage to the senses or personality.

These statements — which might reflect badly on Fredman had he come up with them on his own — in fact came almost verbatim from the Justice Department’s advice to the CIA in an August 1, 2002, memo. That memo was widely attacked as extreme and shoddily reasoned (by me, among others) after it leaked in June 2004. But until it was repudiated by Justice in 2004, the memo was binding on CIA lawyers such as Fredman.

As for Fredman’s supposed statement that "if the detainee dies you’re doing it wrong," maybe Levin or his staff did not believe Fredman’s denial or decided that his exact words in 2002 were less relevant than his memo’s admission that he had raised the possibility of a detainee’s dying during interrogation.

That would be a fair point. But it was far from fair to attribute a horrifying statement to a career CIA professional without mentioning his denial that he had ever made it.

This article appeared in the Saturday, January 10, 2009 edition of National Journal.

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David Bowker vividly remembers the first time he heard the phrase. A lawyer in the State Department, Bow-ker was part of a Bush administration "working group" assembled in the panicked aftermath of the September 11 attacks. Its task: figuring out what rights captured foreign fighters and terror suspects were entitled to while in U.S. custody. White House hard-liners, led by Vice President Dick Cheney and his uncompromising lawyer, David Addington, made it clear that there was only one acceptab

David Bowker vividly remembers the first time he heard the phrase. A lawyer in the State Department, Bow-ker was part of a Bush administration "working group" assembled in the panicked aftermath of the September 11 attacks. Its task: figuring out what rights captured foreign fighters and terror suspects were entitled to while in U.S. custody. White House hard-liners, led by Vice President Dick Cheney and his uncompromising lawyer, David Addington, made it clear that there was only one acceptable answer. One day, Bowker recalls, a colleague explained the goal: to "find the legal equivalent of outer space"–a "lawless" universe.

As Bowker understood it, the idea was to create a system where detainees would have no legal rights and U.S courts would have no power to intervene.

The "outer space" line became something of a joke around the office, but Bowker and a handful of his colleagues didn’t find it all that funny. The White House was already planning to fly terror suspects to Guantánamo Bay, Cuba, or other secret U.S. prisons overseas, where they would have no way to challenge their detention. In January 2002, Bowker and other State Department lawyers pushed back. After seeing a Justice Department memo arguing that Qaeda and Taliban prisoners did not even deserve basic protections under the Geneva Conventions, they warned that the administration was inviting an enormous backlash, both from U.S. courts and foreign allies. It would also, they feared, jeopardize President George W. Bush’s plans to try such prisoners in specially created military courts. "Even those terrorists captured in Afghanistan … are entitled to the fundamental humane treatment standards of … the Geneva Conventions," William Howard Taft IV, the State Department legal counselor and Bowker’s boss, wrote in a Jan. 23, 2002, memo obtained by NEWSWEEK. In particular, Taft argued, the United States has always followed one provision of the Geneva Conventions–known as Common Article 3–which "provides the minimal standards" of treatment that even "terrorists captured in Afghanistan" deserve.

But the complaints went unheeded. The hard-liners forcefully argued that in wartime, the president had virtuall…

David Bowker vividly remembers the first time he heard the phrase. A lawyer in the State Department, Bow-ker was part of a Bush administration "working group" assembled in the panicked aftermath of the September 11 attacks. Its task: figuring out what rights captured foreign fighters and terror suspects were entitled to while in U.S. custody. White House hard-liners, led by Vice President Dick Cheney and his uncompromising lawyer, David Addington, made it clear that there was only one acceptab

David Bowker vividly remembers the first time he heard the phrase. A lawyer in the State Department, Bow-ker was part of a Bush administration "working group" assembled in the panicked aftermath of the September 11 attacks. Its task: figuring out what rights captured foreign fighters and terror suspects were entitled to while in U.S. custody. White House hard-liners, led by Vice President Dick Cheney and his uncompromising lawyer, David Addington, made it clear that there was only one acceptable answer. One day, Bowker recalls, a colleague explained the goal: to "find the legal equivalent of outer space"–a "lawless" universe.

As Bowker understood it, the idea was to create a system where detainees would have no legal rights and U.S courts would have no power to intervene.

The "outer space" line became something of a joke around the office, but Bowker and a handful of his colleagues didn’t find it all that funny. The White House was already planning to fly terror suspects to Guantánamo Bay, Cuba, or other secret U.S. prisons overseas, where they would have no way to challenge their detention. In January 2002, Bowker and other State Department lawyers pushed back. After seeing a Justice Department memo arguing that Qaeda and Taliban prisoners did not even deserve basic protections under the Geneva Conventions, they warned that the administration was inviting an enormous backlash, both from U.S. courts and foreign allies. It would also, they feared, jeopardize President George W. Bush’s plans to try such prisoners in specially created military courts. "Even those terrorists captured in Afghanistan … are entitled to the fundamental humane treatment standards of … the Geneva Conventions," William Howard Taft IV, the State Department legal counselor and Bowker’s boss, wrote in a Jan. 23, 2002, memo obtained by NEWSWEEK. In particular, Taft argued, the United States has always followed one provision of the Geneva Conventions–known as Common Article 3–which "provides the minimal standards" of treatment that even "terrorists captured in Afghanistan" deserve.

But the complaints went unheeded. The hard-liners forcefully argued that in wartime, the president had virtually unlimited powers to defend the nation. They may come to wish they’d listened a little more closely to the warnings. In a ruling late last month, the Supreme Court came down squarely on the side of the dissenters. The case involved Ahmed Hamdan, a captured 37-year-old Yemeni who once served as Osama bin Laden’s driver and now sits in a Gitmo cell. The court blocked the Pentagon’s plans to try Hamdan as a war criminal in a military commission authorized by President Bush. The court’s reasoning was complex, but the majority opinion, written by Justice John Paul Stevens, concluded that the military commissions, with their limited protections for the rights of the accused, violated the Uniform Code of Military Justice and the basic provisions of Common Article 3 of the Geneva Conventions–precisely the argument that Taft, Bowker and other State Department lawyers had tried to make four years ago.

Administration officials and Washington lawyers are still digesting the text of the ruling, but it is already becoming clear that it could have ripple effects that extend far beyond the trial of Hamdan and other Guantánamo prisoners. The president has long argued that Congress granted him wide-reaching powers in the days after 9/11, when it passed a resolution authorizing him to use military force against the perpetrators of the attacks. But in his ruling, Justice Stevens took a much narrower view of the president’s wartime powers, rejecting the administration’s argument that military commissions of the kind Bush had created were covered by the resolution. Now other antiterror programs that the president has justified by invoking the same congressional resolution might be vulnerable to serious legal challenge. Some legal scholars and current and former administration officials believe the case could undermine the secret foreign detention centers and the NSA eavesdropping program, two cornerstones of the terror war. "This is an extremely damaging decision for presidential power," says a former senior administration lawyer, who asked for anonymity owing to his intimate involvement in the legal wrangling over prisoner treatment. "And it was largely a self-inflicted wound." The bitter irony: an administration determined to expand executive power may have caused a serious contraction.

Another possible side effect is that other countries, emboldened by the ruling, could use the case to justify efforts to bring war-crimes charges against CIA officers, U.S. service members and traveling government officials who had a hand in authorizing or carrying out harsh treatment of prisoners. Conceivably, those who violate provisions of Article 3–which mandate humane treatment for all captured prisoners–could also be criminally prosecuted by future administrations under a U.S. law known as the War Crimes Act. "This has opened up a can of worms," says Sen. Lindsay Graham, a South Carolina Republican. "You could have a situation if we don’t bring some restraint where anybody who has done anything to an Al Qaeda suspect that’s harsh could be prosecuted." Bowker says he and other State Department lawyers specifically warned about just such a scenario during the early debates. "The implications of this–for potentially being arrested and tried in other countries–is certainly a little scary," says Ted Olson, the former solicitor general.

Defenders of the administration’s position put the blame for any such troubles on a Supreme Court they say is once again meddling where it doesn’t belong. Historically, they argue, courts have given the president wide latitude during wartime. "It shows that the imperial judiciary thinks that, in addition to abortion, affirmative action and religion, war should be within its grasp," says John Yoo, now a Berkeley law professor, who was one of the chief authors of the administration’s antiterror legal doctrines. But other insiders concede that the White House, by going too far, provoked the court to step in.

The court decision’s possible effects have set off an intense debate within the administration over how to respond. One camp, headed by national-security adviser Stephen Hadley and Secretary of State Condoleezza Rice, want to use the decision as the basis for a wide-ranging "fix" that would accept a role for Congress and the courts on detainee issues. That would, at a minimum, require Congress to authorize military commissions under new rules that provide greater protections for the accused–and establish some standards for the treatment and interrogation of terror suspects. (It could also lead to a shutdown of Guantánamo–a goal President Bush has moved toward in recent weeks.)

But hard-liners–led by Addington, now Vice President Cheney’s chief of staff–are fiercely resisting. They, along with some congressional Republicans, want to nullify the court ruling by rewriting portions of the Uniform Code of Military Justice and granting the president the powers the court rejected.

One person closely watching the case, and the fallout, is Hamdan himself. Last week, heavily guarded and shackled with leg irons, he met with his lawyer, Neal Katyal, to review the decision in a Gitmo interrogation room. He was "overcome with joy" that he might have a chance at a trial, Katyal says, and discussed the legal subtleties of the opinion. "He understood it better than most of the lawyers familiar with the case did," Katyal insists. A little farfetched, perhaps. But languishing in the cell, bin Laden’s driver will have plenty of time to sharpen his analysis of the case that bears his name.

The post The Gitmo Fallout appeared first on Stuart Taylor, Jr..

"These detainees are dangerous enemy combatants….They were picked up on the battlefield, fighting American forces, trying to kill American forces." – White House press secretary Scott McClellan, June 21, 2005

"The people that are there are people we picked up on the battlefield, primarily in Afghanistan. They’re terrorists. They’re bomb makers. They’re facilitators of terror. They’re members of Al Qaeda and the Taliban….We’ve let go those that we’ve deemed not to be a continuing threat. But the 520-some that are there now are serious, deadly threats to the United States." – Vice President Cheney, June 23, 2005

"These are people, all of whom were captured on a battlefield. They’re terrorists, trainers, bomb makers, recruiters, financiers, [Osama bin Laden’s] bodyguards, would-be suicide bombers, probably the 20th 9/11 hijacker." – Defense Secretary Donald Rumsfeld, June 27, 2005

These quotes are representative of countless assertions by administration officials over the past four years that all — or the vast majority — of the prisoners at Guantanamo Bay are Qaeda terrorists or Taliban fighters captured on "the battlefield."

The assertions have been false. And those quoted above came long after the evidence of their falsity should have been manifest to Bush, Cheney, Rumsfeld, and their subordinates.

This is not to deny that many of the 500-odd men now held at Guantanamo and some of the 256 others already released (including 76 to the custody of their home countries) were captured on Afghan battlefields or were terrorists, or both. Nor is it to deny the difficulty of knowing with confidence which detainees could safely be released. Indeed, several released detainees have ended up rejoining Taliban forces in Afghanistan.

But reporter Corine Hegland’s exhaustively researched cover story in this issue — studded with probative details and human stories that every serious student of the war against terror should read — provides powerful evidence confirming what many of us have suspected for years:

• A high percentage, perhaps the majority, of the 500-odd men now held at Guantanamo were not captured on any battlefield, let alone on "the battlefield in Afghanistan" (as Bush asserted) while "trying to kill American forces" (as McClellan claimed).

• Fewer than 20 percent of the Guantanamo detainees, the best available evidence suggests, have ever been Qaeda members.

• Many scores, and perhaps hundreds, of the detainees were not even Taliban foot soldiers, let alone Qaeda terrorists. They were innocent, wrongly seized noncombatants with no intention of joining the Qaeda campaign to murder Americans.

• The majority were not captured by U.S. forces but rather handed over by reward-seeking Pakistanis and Afghan warlords and by villagers of highly doubtful reliability.

These locals had strong incentives to tar as terrorists any and all Arabs they could get their hands on as the Arabs fled war-torn Afghanistan in late 2001 and 2002 — including noncombatant teachers and humanitarian workers. And the Bush administration has apparently made very little effort to corroborate the plausible claims of innocence detailed by many of the men who were handed over.

The administration has also disclosed very little about who the Guantanamo detainees are, excepting 1) redacted transcripts of 314 detainees’ hearings before Guantanamo’s nonjudicial "Combatant Status Review Tribunals" or CSRTs; and 2) somewhat more-detailed responses to the federal court petitions filed by lawyers for 132 of these 314 men.

My estimates above are based largely on extrapolation from Hegland’s analysis of these 132 federal court files. They appear to be reasonably representative of the men still at Guantanamo; certainly, the government has given no indication that its evidence is any weaker in these 132 cases than in the other 370 or so.

It is, therefore, quite remarkable to learn (from Hegland) that well over half (75) of the 132 are not even accused of fighting the United States or its allies on any battlefield in post-9/11 Afghanistan or anywhere else.

Indeed, only 35 percent of them (more precisely, of the 115 whose court files specify the locus of capture) were seized in Afghanistan; 55 percent were picked up by Pakistanis in Pakistan.

The government’s case for continuing to detain most of these 75 nonbattlefield captives is that other people of doubtful reliability have said they were associated with the Taliban or Al Qaeda, often in very indirect ways.

The tribunal hearings, based largely on such guilt-by-association logic, have been travesties of unfairness. The detainees are presumed guilty unless they can prove their innocence — without help from lawyers and without being permitted to know the details and sources of the evidence against them. This evidence is almost entirely hearsay from people without firsthand knowledge and statements from other detainees desperate to satisfy their brutally coercive interrogators. One file says, "Admitted to knowing Usama bin Laden," based on an interrogation in which the detainee — while being pressed to "admit" this, despite his denials — finally said in disgust, "OK, I knew him; whatever you want."

Hegland focuses on a self-described teacher of the Koran from Yemen who was arrested by Pakistanis at the age of 17 while fleeing the Afghan war and was later flown to Guantanamo. The only real evidence against him, wrote his nonlawyer "personal representative" (an Army lieutenant colonel), was a proven liar’s claim to have seen the Yemeni — long before 9/11 — with an AK-47 at bin Laden’s private airport in Kandahar.

This, plus something said by one Mohamed al-Kahtani while being driven mad by his tormenters (see below), was evidence enough for the tribunal to brand the Yemeni an enemy combatant.

It’s difficult to know how many of the 750 men taken to Guantanamo were dangerous to Americans when they arrived, let alone how many of the innocent detainees among them may have acquired a lust for American blood from years of being jailed, humiliated, and brutalized by Americans. The administration’s unspoken logic appears to be: Better to ruin the lives of 10 innocent men than to let one who might be a terrorist go free.

This logic would be understandable if the end of protecting American lives justified any and all means, including the wrecking of many more innocent non-American lives. So, too, would be the torture (or near-torture) in late 2002 of the above-mentioned al-Kahtani, after fingerprints had shown him to be the would-be "20th hijacker" turned away by a suspicious immigration agent a few weeks before 9/11.

Al-Kahtani was interrogated for 18 to 20 hours a day for 48 of 54 days; he had water dripped on his head and was blasted with cold air-conditioning and loud music to keep him awake; his beard and head were shaved; he was forced to wear a bra and panties and to dance with a male jailer; he was hooded; he was menaced with a dog, told to bark like one and led around on a leash; he was pumped full of intravenous fluids and forced to urinate on himself; he was straddled by a female interrogator and stripped naked; and more — all under a list of interrogation methods personally approved by Rumsfeld.

Al-Kahtani may well have had valuable information. But it appears that many other detainees who had no information — because they had no involvement in or knowledge of terrorism — have been put through "humiliating acts, solitary confinement, temperature extremes, use of forced positions" in a systematic effort to break their wills that is "tantamount to torture," the International Committee of the Red Cross complained in a confidential report to the government, excerpts of which The New York Times obtained in November 2004.

The Pentagon responded then that Guantanamo was an oasis of "humane" treatment.

Last July, the Pentagon elaborated in a report of an investigation into complaints by FBI agents of abusive interrogation methods. Many of these methods — such as shackling detainees to the floor for hours in painful positions, keeping them shivering cold during interrogations, grilling them for 16 hours nonstop, waking them up by moving them every few hours, using loud music and strobe lights — had been officially approved as "humane," the Pentagon report explained.

Bush has also pledged that the Guantanamo detainees are treated "humanely." At the same time, he has stressed, "I know for certain … that these are bad people" — all of them, he has implied.

If the president believes either of these assertions, he is a fool. If he does not, choose your own word for him.

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I refer here to the pending criminal prosecutions of Osama bin Laden’s chauffeur and three other suspected Qaeda members for alleged war crimes. The prisoners are to be tried by a Bush-created commission with a retired Army judge as presiding officer and four active-duty officers as members. These proceedings are not to be confused with the less formal (and even more slapdash) hearings that began in July before three-officer "Combatant Status Review Tribunals," to determine which of the other 580 or so Guantanamo prisoners — most of whom will not be criminally prosecuted — are "enemy combatants" subject to continued detention.

There is much to be said for using special military tribunals rather than civilian courts to try alleged war crimes by terrorists captured on foreign battlefields. Sometimes, security concerns may call for trials in remote locations, for greater secrecy than civilian courts allow, and for use of hearsay and other evidence that is inadmissible in civilian courts.

But so far, the Bush administration has botched the job. By turning its back on more than five decades of progress in the quality of military justice and instead using a deeply flawed 1942 precedent as a model, the administration has designed its "commissions" in ways that fall short of fairness.

Among the embarrassments at last month’s preliminary hearings:

• Retired Army Judge

Peter Brownback was handpicked to be the presiding officer by his close friend John Altenburg. Defense Secretary Donald Rumsfeld had earlier picked Altenburg to oversee the commission process as the "appointing authority." Military defense lawyers challenged the impartiality of Brownback and other commission members: One of them had gathered intelligence about Qaeda and Taliban forces in Afghanistan, and another had helped coordinate the transport of prisoners to Guantanamo.

• Brownback is the only commission member who has legal training; nevertheless, he at times seemed to share his colleagues’ confusion about the still-uncertain rules he was supposed to enforce.

• The proceedings were marred by sometimes-egregious translation errors, prompting disputes about many things, including the official translator’s interpretation of a supposed confession of Qaeda membership blurted out by a Yemeni defendant.

• While the military lawyers assigned to represent the four defendants were commendably aggressive, they all had to work out of one crowded room, and they were given inadequate access to interpreters, support staff, and other resources, by comparison with the more numerous prosecutors.

• One defense lawyer plans to leave the service because he was passed over for promotion. One wonders: Did his superiors hold his aggressiveness in defending his client against him? It took nearly three years for the Pentagon to bring the first defendant before the first commission, authorized by a hastily drafted November 2001 Bush order. This delay seems especially incomprehensible in light of the Pentagon’s March 2002 letter citing "the need to move decisively and expeditiously" in spurning the American Bar Association’s request for a chance to comment on the draft procedures.

After all this time, the allegations against the first four defendants hardly support Rumsfeld’s description of the Guantanamo detainees as "among the most dangerous, best-trained, vicious killers on the face of the Earth." Take Salim Ahmed Hamdan, another Yemeni, who was Osama bin Laden’s chauffeur and, allegedly, his sometime bodyguard and transporter of weapons. The charges against Hamdan — conspiracy to commit crimes including murder and terrorism — do not allege that he ever participated personally in an attack. Are these really the worst guys we could find among the 600-plus alleged Qaeda and Taliban fighters who have been imprisoned at Guantanamo?

The shaky start-up has highlighted the fundamental flaws in the design of the military commissions. White House and Pentagon lawyers modeled them on the far-from-fair process that President Franklin D. Roosevelt slapped together in 1942 for the secret trials and hasty executions of a handful of "saboteurs" who entered the U.S. off German U-boats. The administration has discarded wholesale the far-more-detailed, far-more-modern, congressionally enacted rules and procedures that have been used for decades in ordinary military courts-martial. The White House has left it to the Pentagon and the presiding officer to make up procedural rules as they go along. Perhaps the most glaring defect is the administration’s evasion of appellate review — which is routinely available to defendants in ordinary courts-martial — by military courts and the U.S. Court of Appeals for the Armed Forces. With five presidentially appointed, Senate-confirmed judges who, by statute, must be drawn "from civilian life" and serve 15-year terms, the court is relatively insulated from fear of presidential or Pentagon displeasure. By contrast, military commission rules route appeals to a three-judge "review panel" handpicked by the same Defense secretary who has pronounced the Guantanamo detainees to be "vicious killers." The final appeal goes either to Rumsfeld or to the same George W. Bush who has said, "I know for certain that these are bad people."There is a better way: Follow all or most of the long-established, congressionally enacted, elaborately detailed court-martial rules and precedents that are used to prosecute our own service members, including those accused of war crimes at the Abu Ghraib prison in Iraq. Indeed, this is precisely the approach that Sen. John Edwards has recently said a John Kerry administration would follow.

While military trials of any kind would draw objections from many libertarians and human-rights groups, the modern court-martial process has earned a reputation for fundamental fairness and de facto independence from political and command influence. And international critics of Bush’s decision to give his military commissions jurisdiction over only foreigners would have less reason to complain if those foreigners got the same (or almost the same) fair-trial protections as do our own soldiers.

The court-martial approach, explains professor Neal Katyal of Georgetown Law School, a critic of the Bush approach, would also require assigning these cases to randomly selected military judges and jurors rather than to people "handpicked by the civilians at the Pentagon."

I have some sympathy for retaining two military commission rules that depart from the usual court-martial process. One allows military commissions to consider hearsay and other ordinarily inadmissible evidence if it "would have probative value to a reasonable person." (The commission rules go too far in appearing to allow testimony obtained through torture.) The other rule provides that, when justified by security concerns, sensitive evidence may be concealed from defendants (although not from their military lawyers) and the public.

But any such deviations from the established rules should be based on proven need and vetted by Congress. Instead, Bush has chosen, in Katyal’s words, to "junk an entity with a proven track record for a speculative gamble that has produced literally no payoffs after three years."

Procedural problems aside, does it make sense to even bring war-crimes prosecutions against such a small-fry as bin Laden’s chauffeur? Such cases may risk trivializing Al Qaeda’s monstrous crimes by focusing on relatively minor accessories who have no blood on their hands. Another risk — especially in the event of acquittals — is increasing the international pressure to release not only the defendants but also other, unprosecuted Guantanamo detainees, even if they still seem dangerous.

On the other hand, the chauffeur surely helped bin Laden’s jihad more than did some defendants who have already been prosecuted in civilian courts, such as John Walker Lindh, the "American Taliban," now serving a 20-year prison term. And credible prosecutions of people such as bin Laden’s chauffeur could send a symbolic message that giving even relatively minor assistance to mass-murder terrorists is a grave crime warranting severe punishment.

Sending such a message is, however, just about the only thing we can accomplish by prosecuting small-fry detainees at Guantanamo, as compared with the alternative of simply keeping them locked up as enemy combatants. And if the trials aren’t seen to be fair, the intended message will be eclipsed in world opinion by a far different one: that America is railroading Arabs, Afghans, and others through a second-class justice system from which it has exempted its own citizens.

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I base my prediction — which some would dispute — on the justices’ questions and comments during the April 20 oral argument in the two consolidated Guantanamo cases, Rasul v. Bush and Al Odah v. U.S . In those cases, the families of 16 Kuwaiti, British, and Australian citizens detained at the naval base claim that their relatives are noncombatant civilians seized by mistake.

It also appears quite possible that the Court will rebuff the president’s denial of due process to two U.S. citizens, Jose Padilla and Yaser Esam Hamdi, whom he has also labeled "enemy combatants" and has kept locked up in a South Carolina naval brig for two years without criminal charges. The Court has set the Padilla and Hamdi cases for argument on April 28. It will probably decide all of these cases by late June. Karl Rove might want to do some contingency planning: A succession of Supreme Court spankings for unnecessarily trashing civil liberties would not do his candidate much good.

During the Guantanamo argument, Chief Justice William Rehnquist and Justice Antonin Scalia predictably embraced the administration’s view that no court in the world can inquire into the president’s dubious claim that all of the more than 600 prisoners at Guantanamo, from 40-some countries, are Qaeda or Taliban fighters. But Justice Stephen Breyer seemed to speak for his three liberal colleagues when he asserted, "It seems rather contrary to an idea of a Constitution with three branches that the executive would be free to do whatever they want — whatever they want — without a check."

Instead, Breyer suggested, courts should open their doors to petitions for habeas corpus on behalf of aliens detained overseas by the U.S., while working out "practical" legal rules to avoid interference with battlefield detentions or other sensitive military operations. (Habeas corpus is the common-law writ that prisoners have been able to use for almost 800 years to challenge the legality of their confinement.) The alternative would be to put Guantanamo, over which the U.S. has exercised complete control under a perpetual lease with Cuba since 1903, completely outside the law.

Bush will lose if the four liberals pick up the vote of either Sandra Day O’Connor or Anthony Kennedy, the two centrist justices. They were harder to read. But O’Connor rejected Solicitor General Theodore Olson’s contention that a 1950 precedent, Johnson v. Eisentrager, bars federal courts from hearing habeas corpus petitions by Guantanamo detainees. (Olson, whose wife, Barbara, died in the 9/11 attacks, has reportedly pushed in internal discussions for the Pentagon to show more respect for due process.) Kennedy, while asking tough questions of both sides, also seemed unpersuaded by Olson.

This is not to suggest that the plaintiffs clearly have the better of the legal arguments. Eisentrager and other precedents offer some support for the administration’s sweeping claims that federal courts have no power to entertain habeas corpus petitions seeking release of aliens detained outside the U.S., and that such prisoners are unprotected by the Fifth Amendment right not to be "deprived of life, liberty, or property, without due process of law." But O’Connor stressed that Eisentrager, which involved German spies convicted by a military commission and imprisoned by the Allied powers in postwar Germany, could be distinguished from the Guantanamo cases, in which there have been no trials or hearings of any kind.

More generally, when presidents push their powers far beyond the legitimate needs of national security, the justices have sometimes put aside their usual deference to the commander-in-chief and pushed back. Bush has foolishly invited such a judicial response ever since his profoundly unwise decision in January 2002 — when the military started flying prisoners from Afghanistan to Guantanamo — to spurn both due process and our nation’s treaty commitments.

The U.S. pledged in the 1949 Geneva Conventions to provide detailed protections for prisoners of war and noncombatants. Bush found these protections inapplicable to Qaeda and Taliban fighters because he said the detainees were "unlawful combatants," who wore no uniforms and systematically murdered and abused innocent civilians. This was correct as to Qaeda terrorists and some, but not all, Taliban fighters.

What made Bush’s position indefensible was his refusal to provide even an informal military tribunal to hear the claims of many of the detainees that they were neither Qaeda nor Taliban, but rather civilian noncombatants. This was a clear violation of Article V of the Third Geneva Convention, Relative to the Treatment of Prisoners of War. It states that "should any doubt arise" as to the status of captives, "such persons shall enjoy the protection of the present convention until such time as their status has been determined by a competent tribunal." This article was designed to protect both POWs and noncombatants from being mistakenly treated as unlawful combatants. The U.S. military has adopted regulations for Article V tribunals and used them in every war since Vietnam, except for the war in Afghanistan.

Had Bush done the same for Guantanamo detainees, some would properly have been freed and most would have been held as unlawful combatants. Any petitions urging federal courts to overrule the military tribunals would have been denied. The courts — including the Supreme Court, if any cases got that far — would almost certainly have held that the Article V tribunals satisfied both the Geneva Conventions and any Fifth Amendment due process requirements.

But there have been no military tribunals at Guantanamo to which courts can defer. (The military commissions established to try a small number of detainees for alleged war crimes are not yet in business and not authorized to hear claims of noncombatant status.) Instead, Bush and his lawyers have insisted that no Article V hearings are necessary, because there is no doubt that each and every Guantanamo detainee is an unlawful Qaeda or Taliban combatant. "The only thing I know for certain is that these are bad people," Bush said last July 17.

In fact, there is a great deal of doubt about that claim. A "senior American military interrogator [estimated] that as many as 20 percent of the Guantanamo prisoners were sent by mistake," the CBS program 60 Minutes II claimed last September. Dozens of the detainees "have no meaningful connection to Al Qaeda or the Taliban … according to military sources with direct knowledge of the matter," The Los Angeles Times reported in December 2002. Even Defense Secretary Donald Rumsfeld has acknowledged that "sometimes when you capture a big, large group, there will be someone who just happened to be in there that didn’t belong in there." And the Pentagon has released more than 130 of the Guantanamo detainees, including the two Britons whose petitions are before the Court in Rasul.

If Bush was so sure that all of the men and boys (as young as 13) sent to Guantanamo were dangerous, unlawful combatants, why have so many been freed? The evidence suggests that well over 100 were Arab students and charity workers, other noncombatants, and Taliban conscripts with no loyalty to that now-defunct regime. Some were mistakenly seized in the fog of a war in which there were no uniforms. Others were sold by Afghan and Pakistani bounty hunters to U.S. forces dangling millions in rewards.

One might speculate that all of the detainees who would have benefited from Article V tribunals have already been freed. But that seems unlikely. And speculations are no excuse for lawlessness.

The Pentagon detailed in February a painstakingly careful, multilayered screening process that it said it uses now before sending new detainees to Guantanamo. It also sketched plans for annual administrative reviews to release any detainees found not to be dangerous. These are welcome steps, but too little and too late. They came only after the administration felt the hot breath of the justices on the back of its neck. And they could be abandoned if Bush wins the absolute power he seeks.

The administration argues that even deferential judicial oversight would hurt the war against terrorism. I think that it would help. It would show the civilized world — which has been horrified by Bush’s lawless treatment of foreign prisoners, to the detriment of the alliance against the jihadist barbarians — that America’s judiciary still respects the rule of law, even if the president does not. 

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A key purpose of Blair’s visit was to seek assurances of fair trials for two British citizens whom Bush had designated on July 3, along with an Australian and three other men, as eligible to be tried under his specially created military-commission regime for as-yet-unspecified war crimes.

Fair trials? After Bush has cluelessly insulted his guest by declaring the "certain" guilt — or, at least, the evil character — of all prospective defendants? The commissions are to be staffed by military officers whose futures could depend on pleasing their commander-in-chief. At no point will any independent tribunal review any conviction. If the boss is already so certain, why bother with trials at all?

In fact, Bush is not bothering with trials — or with hearings, or with any other semblance of due process — for the vast majority of the men who have been bound, gagged, and hooded, and then flown around the world from Afghanistan to be kept in solitary confinement and held virtually incommunicado for as long as 18 months. A few boys, as young as 13, are also at Guantanamo.

Some of the procedures to be used by Bush’s military commissions are seriously flawed. And the concessions this week to ease Blair’s concerns — no death penalty, and slightly better access to counsel, for the two Brits and the Aussie — were underwhelming. But the far more fundamental injustice is Bush’s lawless, indefinite incarceration of hundreds of men, with no reliable process for separating those who are terrorists from the dozens or even hundreds who may be harmless.

Whatever the six designated candidates for trial may have done, there are reasons to suspect that a substantial percentage of the 660 were Arab students and charity workers, other civilian noncombatants, or hapless Taliban conscripts who were simply in the wrong place at the wrong time. Examples:

U.S. officials, including one senior official, "have privately acknowledged to me that at least a third of the detainees at Guantanamo are completely innocent and don’t belong there," says Thomas B. Wilner, a Washington lawyer who represents the families of the 12 Kuwaitis detained at Guantanamo. "And when I say innocent, I mean neither Taliban nor Al Qaeda, nor terrorists nor combatants. I mean students and the like swept up in a bounty hunt."

The administration has tacitly acknowledged the harmlessness of 64 Guantanamo detainees by releasing them. Here is how David Rohde of The New York Times described one after his return to Afghanistan last October: "Faiz Muhammad said he was 105. Babbling at times like a child, the partially deaf, shriveled old man was unable to answer simple questions. He struggled to complete sentences and strained to hear words that were shouted at him. His faded mind kept failing him."

Greg Miller of the Los Angeles Times reported last December 22: "The United States is holding dozens of prisoners at Guantanamo Bay who have no meaningful connection to Al Qaeda or the Taliban, and were sent to the maximum-security facility over the objections of intelligence officers in Afghanistan who had recommended them for release, according to military sources with direct knowledge of the matter. At least 59 detainees … were deemed to be of no intelligence value after repeated interrogations in Afghanistan….

"Dozens of the detainees are Afghan and Pakistani nationals described in classified intelligence reports as farmers, taxi drivers, cobblers, and laborers. Some were low-level fighters conscripted by the Taliban…. None of the 59 met U.S. screening criteria for [prisoners to be] sent to Guantanamo Bay, military sources said. But all were transferred anyway, sources said, for reasons that continue to baffle and frustrate intelligence officers."

A Newsweek investigation last summer into the Kuwaitis at Guantanamo concluded that at least five of them "may be little more than volunteers for their society’s versions of faith-based charities" who had told their families that they "wanted to help Afghans suffering from drought and famine — and then from the war … but discovered, once the conflict began, that they could not get out. And as the war turned against the Taliban, the Afghan people turned against the Arabs, no matter what had brought them to the country." As these five sought to flee, they were "sold" by a local tribal leader to Pakistani forces.

Some or even all of these claims of innocence and noncombatant status may be false. But the administration has cited no specific evidence at all to justify its detention of these — or any — Guantanamo detainees. Bush has simply announced that all of them are "unlawful combatants," and thus ineligible for prisoner-of-war status under the Third Geneva Convention of 1949. How does he know that? Well, administration lawyers stress, the detainees were not wearing uniforms when captured.

But quite a few of the billions of people in this world who don’t wear uniforms are harmless civilians. And many of the Arabs now at Guantanamo were fingered by Afghans and Pakistanis who had even more to gain from lying than your typical jailhouse snitch: U.S. forces had dropped leaflets promising "millions of dollars for helping … catch Al Qaeda and Taliban murderers … enough money to take care of your family, your village, your tribe for the rest of your life." Any Arab unlucky enough to find himself in Afghanistan in late 2001 was, as Wilner puts it, "a very valuable commodity."

Instead of having military tribunals separate bad guys from good guys, Bush has marooned all 660 detainees in a legal no man’s land. They have been charged with no crimes and given no chance to prove their innocence to any impartial arbiter. This appears to be a flagrant, ongoing violation of Article V of the Third Geneva Convention and other international law rules against arbitrary detentions. Article V states that "should any doubt arise" as to the status of a captive, "such persons shall enjoy the protection of the present convention [as prisoners of war] until such time as their status has been determined by a competent tribunal."

The Bush administration has said it needs no tribunal because it has no doubt that every detainee sent to Guantanamo was an unlawful combatant. Nonsense. Anyone who believes that the bounty hunts and interrogations that routed hundreds of these men to Guantanamo amount to a foolproof fact-finding process is unqualified to be a small-town sheriff.

But under Bush’s notion of justice, these men and boys have no legal rights. None. Even if acquitted of any war crimes by military commissions, they could remain incarcerated as enemy combatants. For that matter, even if Bush were to announce today that all 660 would be lined up and shot on August 1, no court in the world could intervene.

Bush won’t do anything like that, of course. But he has already deprived hundreds of quite possibly innocent men of liberty for many months, under conditions so dispiriting that 18 have attempted suicide.

Bush’s claim that U.S. courts have no power to review anything he and his subordinates do to the Guantanamo detainees is based on a legalistic argument: The naval base remains under Cuban sovereignty, even though the U.S. has complete control under a perpetual lease. Wilner plans to ask the Supreme Court to review this claim of absolute, unaccountable power, which a federal appeals court upheld in March.

Whatever the outcome, Bush’s refusal to give hearings to these detainees has been "unworthy of a nation which has cherished the rule of law from its very birth," says the generally pro-American Economist. This travesty of justice has done nothing to make us more secure. Rather, it has put us in greater danger. By making our preachments about human rights seem the rankest hypocrisy, Bush is pouring gasoline onto the flames of anti-Americanism abroad and turning potential friends into enemies.

The Pentagon says it is "constantly reviewing the continued detention" of these 660 men. But Wilner and some other critics suspect that the administration has not released many whom it knows to be harmless because Bush, Donald Rumsfeld, and others are unwilling to admit how wrong they have been. I prefer not to believe that. Surely the president of the United States would not keep innocent men behind bars indefinitely just to save face. Would he?

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LARRY THOMPSON: Nothing that we have been done has been enacted in secrecy. Every measure that we have undertaken is out in the open. Every measure that we have undertaken has had the sunlight of public attention. And almost all measures are not done unilaterally by members of the Department of Justice. These measures are subject to judicial review by judges and other judicial officers.

MARGARET WARNER: But let me just ask you for instance, the chief immigration judge, who just explained to our viewers also is part of the Department of Justice, Michael Creppi, issued an order saying, and I’ll just read it to you, that these hearings, these deportation hearings, were to be held in secret, "no visitors, no family, no press, not even confirming whether it’s on the docket."

LARRY THOMPSON: The only thing that has been secret, if you will, has been the list of the individuals and the actual hearing itself. But the fact that an individual was taken into custody, the fact that he or she was in a particular detention facility, that was open to the public, if you will, to their friends, to their relatives, they could make phone calls.

This was not done in the dark of night. People do not disappear in this country and we have really not done anything in secret, if you will. The actual administration of justice with respect to some of these cases was done, what we call in camera, because of national security and other concerns, and even that has been subject to judicial review, but nothing has been done in secret.

MARGARET WARNER: A senior member of your staff out of your criminal division, Michael Chertoff, was at the ABA Convention last month– and the ABA has been critical of some of these measures– and his answer was, essentially, this is a time of war. Is that the basic underpinning here?

LARRY THOMPSON: Well, we are at war and we do face the threat of terrorist activity every day, but the fact of the matter is that the measures that we have enacted we believe are balanced, we believe they are consistent with the applicable laws and as I mentioned to you earlier, they have been enacted out in the open.

MARGARET WARNER: So does that mean these measures are temporary or are these measures things that Americans will have to learn to live with indefinitely?

LARRY THOMPSON: Well, I don’t think that there are measures that we will necessarily have to learn to live with indefinitely, but there are measures that are appropriate as long as we are at war and as long as we face the terrorist threats that we do.

Every day, every day since 9/12, I go to work early in the morning and am confronted with a real and credible terrorist threat, and then you have to deal with how do you react to that, and we think that our underlying mission at the Department of Justice, our overwhelming priority, is the prevention and disruption of future terrorist attacks. That’s what we think the American people expect of us. We know that’s what the president expects of us and that’s what we want to try to do.

GWEN IFILL: Now to pick up where the deputy Attorney General left off, we turn to four legal experts here to discuss the impact of September 11 on the justice system. We’re joined by: Loretta Lynch, the former U.S. Attorney for the Eastern District of New York; Stuart Taylor of The National Journal; William Barr, who served as Attorney General under the first President Bush; and Laurence Tribe, Professor of Law at Harvard University.

Professor Tribe, a year after 9/11, do we believe that the justice system is as balanced? Has the right balance been struck, I guess, between civil liberties and war time footing, on a war-time footing?

LAURENCE TRIBE: Gwen, I don’t think the balance really is what it ought to be primarily because the twin pillars of our fundamental system of liberty under law have both been eroded. The sky isn’t falling. It’s not quite as bad as what FDR did with Americans of Japanese origin. It’s not like what Lincoln did. It’s not as bad as it might be, but the twin pillars first of checks and balances.

And second– excuse me– of public accountability and of openness have both been eroded. You just had an interview with the Deputy Attorney General who kept saying that the laws were enacted in the open, but nothing, he said, is in secret, if you will.

Well, that’s simply not the case. The U.S. Court of Appeals for the Sixth Circuit, which I think said quite rightly that democracies die behind closed doors, emphasized that there is in place a routine rule even for the most trivial deportations of someone who has overstayed his visa that as long as the Attorney General says it’s to be heard in secret, it’s heard in secret. When the Deputy Attorney General says it’s only the actual hearing that is in secret, I shudder.

Now the other pillar is checks and balances. We were told that judicial review is always available, but the fact is– and I think it cannot be denied– that the position of the administration is that when they say someone is an enemy combatant, even if it’s an American citizen arrested in an American city like Jose Padilla, that person has no access to court, no right to a hearing, no access to counsel. That, I think, erodes checks and balances. As I say it’s not as bad as it might be but it’s pretty scary.

GWEN IFILL: Professor Tribe, let Mr. Barr get a chance to respond to that same question about whether we’ve struck the right balance.

WILLIAM BARR: Absolutely. The danger to our civil liberties comes from the terrorists, of people who are afraid to get blown up by terrorists, not the government’s actions. I think the government’s actions have been restrained, moderate, well within the law and pose no genuine civil liberties concerns.

Larry is confusing two separate and distinct realms. The criminal justice realm deals with the rules that we set within a society to discipline recalcitrant members who break the rules and what’s involved there is a process involved in the punishing of those members of the body politic. It’s a wholly separate issue when our society is under attack by a foreign organized force. In that situation, we’re in an armed conflict. We’re at war.

The Constitution doesn’t give civil liberties to our enemies. The Constitution is concerned with us winning the war by either killing or incapacitating those who are trying to kill us. And so I’m afraid that many of the so-called civil libertarians are suggesting that we apply the rules that relate to the criminal justice system and apply them to armed combatants who are fighting a war against us.

That’s never been done in our history and it’s totally inappropriate. Let me just say that as to the people we have dealt with under the criminal justice system, those people who have been detained for immigration violations or have been treated as material witnesses, we have gone through the criminal justice process. They have access to lawyers. That process is in full swing. There’s no derogation of civil liberties. There is a dispute over whether hearings can be secret in immigration cases. That’s going to be sorted out by the Supreme Court.

GWEN IFILL: Okay. Let me interrupt you because I want to get around to everybody one time here. Stuart Taylor, civil liberties, should that be a flexible concept?

STUART TAYLOR: I think it should be a flexible concept. I agree with the first thing Bill Barr said. I think I agree with most of the rest of what Larry Tribe said. I’ll take it from an Alexander Hamilton quotation. The vigor of government is essential to the security of liberty. Their interests can never be separated.

What he meant and I think what Mr. Barr means is if our enemies are able to blow up people at will in the United States and terrorize us, the freedom not to be wire tapped isn’t really worth very much and the government needs the investigative powers– and I agree they need broader investigative powers– to deal with that. Where I think the administration has gone off the rails– and I’m not the only one who thinks so.

I’ve talked to some conservatives who are similarly troubled – is in their detention policies and in particular in two cases they have people in military detention, American citizens, one arrested in the United States, Jose Padilla, who have not been allowed not only to see lawyers. They haven’t been allowed to see judges. They will never for the rest of their lives according to this administration’s policy be able to go in front of a judge and say, "Here’s my story. They got the wrong guy." No right ever to do that. That is the administration’s policy. I submit that is an outrageous policy that the courts – the Supreme Court I hope would reject.

As to the 1200 detainees that were discussed – and we saw the Attorney Genera on camera talking about if you overstay your visa one day – one thing that I think he tends to fudge and I think people lose sight of is the vast majority of those, 99 percent, had nothing to do with terrorism. It proved. They may have violated some immigration law.

They may have overstayed… but he’s sort of assume inning the way he talks about them that they’re all terrorists. The way they were treated while in detention is consistent with that assumption. They were thrown in with accused criminals or criminals. They were strip searched, manacled. I think the detention policy is way beyond what’s necessary to protect our security needs.

GWEN IFILL: Loretta Lynch, as a former prosecutor how handy is it as you’re trying to investigate these kinds of cases especially in a time of war, I suppose, is it to have access to greater latitude on wire tapping and how much do you have to walk the line to make sure you’re not going too far in violating individual rights?

LORETTA LYNCH: Well, actually that’s a line that you walk in every case. I mean, every case particularly one involving electronic surveillance where you are essentially surveilling people in private situations has got to be reviewed carefully. They are still reviewed by the courts even under the new laws that are passed this most recent year under the Patriot Act.

The issue really that’s been pointed out by the previous speakers is the tension that’s arisen in our current situation. You know, we’re having… we really are experiencing a switch in the law enforcement paradigm in this country. It primarily was reactive. Let’s catch someone, adjudicate the case and convict them.

We are really switching into a deterrence mode. The nature of the threat requires that we try and actually prevent actions before they occur. And that actually does call for a greater use of certain types of techniques.

What it also calls for, however, under our system is the same accountability when you expand these techniques as you used before. One thing that we have to remember is that the system works primarily by the cooperation of everyone involved in it.

One of the problems with excessive detention, for example, of large members of one community or another is it ultimately it’s going to backfire because ultimately we may need cooperation and information from some of the very members of that community that we may not have treated with the way that we would like to be treated ourselves if we were detained. And that’s something that requires foresight and discretion. I mean, everything that the government does– I don’t think anyone doubts their purpose and their goal is to protect us.

However, as they strive to do that, we have to keep in place the essential accountability that law enforcement and government has always got to be subject to.

GWEN IFILL: Professor Tribe, when we talk about the cases of the most notorious cases the one that’s being prosecuted now in criminal court of Zacarias Moussaoui and of the Americans, the American detainees, Jose Padilla and Yasser Hamdi, what is the difference? People begin to think of them all as people who are suspects and should be held. But is there a difference when they’re American citizens and they’re detainees and when they’re not?

LAURENCE TRIBE: So far the courts have treated the fact that someone is an American citizen as entitling that person to better treatment in some respects. But when it comes to the fundamental right to talk to a lawyer, to talk to a judge, not to have the government unilaterally by its own say so draw the boundary between these two models, the preventive wartime model and the reactive judicial model, when it comes to that, there’s really no difference between citizens and non-citizens.

I’m struck as I hear my friend Bill Barr say that I’m simply confused about the difference between war and justice. But I think Bill is confused about who in our system ultimately answers those questions. Of course when it is admitted that someone is an unlawful enemy combatant, that person is not entitled to be treated as a prisoner of war and not entitled to be treated as a criminal defendant.

But striking the balance between war and justice, deciding whether someone who, for example, went to a meeting of a cell of al-Qaida as an American citizen can simply be written off by a unilateral stroke of the executive pen and detained indefinitely– and it is indefinitely– that’s not a function for the president alone. And I do want to stress just a few months ago in May, the deputy attorney general said in a candid– and I think honest– moment, he said there will never be another normal.

This is not like any other war. It’s not like the Civil War, the Revolutionary War, World War I or II. This one by definition can go on forever like the war on cancer or the war on drugs. Because that’s right, we have to be unusually careful about checks and balances and about openness and accountability — just as Ms. Lynch said.

GWEN IFILL: Let me ask Mr. Barr this question which is what is the proper role for the courts in all this? Some courts have been digging their heels in and putting on the brakes at some of the administration’s request. What should the proper role of the courts be?

WILLIAM BARR: I think that’s the core question as we try to determine which is the applicable model. I think Larry is right that– and it’s important to recognize– that when someone is an armed combatant against the United States they don’t have legal rights. They’re not entitled to a lawyer. No charges have to be brought against them.

There were approximately 300 American citizens who were imprisoned in the United States as members of the Varmacht in the Italian army in World War II. They didn’t have access to judges. The president didn’t have to prove they were members of the Vermacht. They were prisoners of war because they were enemy combatants.

The question comes up can the president willy-nilly decide who is an enemy combatant and say I’m going to treat you as an enemy combatant, rather than on the law enforcement side, and what is the role of the courts? I think this is really the crux of the issue. My view is that it’s the president’s responsibility in the first instance to make that determination. That’s important to the power to wage war. The commander in chief has to be able to make the initial decision. This is an enemy combatant and we’re putting him and treating him as a prisoner.

The role of the courts in my view is quite limited. I think Larry was exaggerating when he said these people have no access to the courts. In fact, writs of habeas corpus have been sought in the Hamdi case and the issue is being presented as to what is the role of the judge. In my view, the judge is not to make the decision and it’s not the judge’s determination as to whether in fact this person was or was not a member of al-Qaida. The issue is whether the President has made that determination.

There’s some evidence to support it. It’s made in good faith. You can’t have judges second guessing fundamental decisions during a war as to who the enemy is.

GWEN IFILL: Stuart Taylor.

STUART TAYLOR: I think the reality is illustrative. What we’re talking about here at least in some cases is maybe the Northern Alliance picked up somebody, this fellow Hamdi, hands him over to somebody who hands him over to the Americans. He goes through a chain of people and at the end of the process, a two-page declaration by someone named Michael Mobs in the Pentagon is presented to a judge saying this guy is an enemy combatant and we know it and here’s why.

The administration’s position is, "this guy never gets to go in front of the judge." Some lawyer from outside hired by his father may be able to run into court and say habeas corpus but the guy never gets to go before a judge and tell his story let alone have the… any testing. Now, when the guy is picked up in Afghanistan, that’s one thing. But they could do it to you or to me. Under their position, we’d never be able to see a judge.

GWEN IFILL: Loretta Lynch, quickly and finally, do you think as Deputy Attorney General Thomson said that these changes are now permanent ones?

LORETTA LYNCH: Well actually I hope not, because that would mean that the threat would remain permanent and our sense of fear and insecurity, which led to this quite frankly, would remain permanent. I think there’s always got to be a constant review, a constant scrutiny over the effectiveness of the provisions that we adopt in times of emergency.

I think people understand that the Administration may want to change certain procedures but as I said before the Administration has always got to be able to explain that to the people who are going to be subject to those provisions. Many of the new laws that were passed are not meant to be permanent. There are procedures in place for them to be reviewed in the next three to five years, which is a good thing. Also I think judicial review is important as well. As we learn more about this, as we strike this balance, then I think we’re going to know.

GWEN IFILL: Thank you all very much.

The post NewsHour: Liberty vs.Security – September 10, 2002 appeared first on Stuart Taylor, Jr..

The unfortunately named Osama Awadallah was not the only one. Not by a long shot. Despite the unprecedented secrecy imposed by Attorney General John D. Ashcroft, evidence has mounted that his Justice Department has put hundreds of harmless Muslim men from abroad behind bars for far too long, treated many of them worse than convicted criminals, and arguably violated their constitutional rights-all without finding enough evidence to charge a single one of those arrested since September 11 with a terrorist crime or conspiracy.

One federal judge has ruled illegal the government’s use of the "material witness" statute to incarcerate Awadallah. Another has found unconstitutional Ashcroft’s effort to impose blanket secrecy on deportation proceedings. A New Jersey judge ordered release of the names of detainees in that state. (The Justice Department is appealing all of these decisions.) Judges have also questioned other government actions, and the media have published numerous accounts of gratuitous mistreatment and verbal and physical abuse. It’s time to shed the sunlight of public hearings on these detentions, which have swept up between 1,100 and 2,000 Muslim foreigners (if not more), the vast majority of whom have eventually been deported or released as harmless.

Congress should call on Ashcroft to explain and justify the incarceration of so many people, for so long, in such harsh conditions, under such unprecedented secrecy, and with so little apparent progress in finding terrorists. I say this as one who believes that the novel dangers we face may warrant novel governmental powers to detain suspected terrorists (for a few days) even when the initially available evidence is too thin to warrant any criminal or immigration charge.

But the Ashcroft detention regime appears more and more disturbing the more we learn about the meager justifications for the vast majority of these detentions and their apparent ineffectiveness in fighting terrorism. Using alleged immigration violations as pretexts, the attorney general has assumed powers that Congress never gave him to lock up apparently harmless people with no real justification beyond possible links to terrorism-and to keep them locked up until the FBI satisfies itself that they are harmless.

Our law has historically shunned such "preventive detention" of people accused of no crime, based on a mere suspicion of possible dangerousness. There have been lamentable exceptions, such as the internment of more than 100,000 Japanese-Americans during World War II. But "in our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception," the Supreme Court held in 1987. The Court has ruled that no mentally competent citizen can be locked up for more than 48 hours without bond unless he or she is both charged with a crime and shown to present either a risk of flight or a danger to the community. Immigrants and foreign visitors enjoy the same rights, except that they can also be detained based on noncriminal immigration charges-if (and only if) combined with proof of flight risk or dangerousness-until the deportation proceedings have been resolved. ("Unlawful combatants" captured on the battlefield abroad, on the other hand, are properly subject to long-term detention even if implicated in no completed crimes. See my April 27 column.)

Ashcroft proposed a drastic lunge down the preventive detention road in the draft anti-terrorism bill he sent to Congress in September. But Congress balked, and Ashcroft had to settle for a less radical (albeit still controversial) provision authorizing detention of suspected terrorists without charges for no more than seven days. But he has never invoked this new power. Instead, he has ushered in his detain-until-proven-harmless approach by using at least four different rationales-all of questionable legality-to incarcerate Awadallah and hundreds of others for far more than seven days, based on far-from-solid evidence of possible ties to terrorists.

First, the Justice Department has locked up more than 700 people for alleged immigration violations that are not crimes and carry no penalty besides possible deportation. Ashcroft’s sweeping secrecy rules make it difficult to gauge the quality of the evidence used to justify most of these detentions. But a growing number of largely uncontradicted accounts by dozens of detainees who have been released suggest that the government had little basis for classifying them either as dangerous or as flight risks. Absent such evidence, they were legally entitled to prompt release pending any deportation proceedings. Instead, many were held for weeks or months.

Second, in at least 87 cases, according to a February 18 New York Times report and a class-action lawsuit by former detainees, the Justice Department continued to incarcerate foreigners charged only with the noncriminal offense of illegally entering or remaining in the United States even after they had agreed to leave or had been ruled "deportable." In the words of Lee Gelernt of the American Civil Liberties Union: "Holding visa violators after the completion of their immigration proceedings solely for the purpose of investigating them criminally is a form of preventive detention, is patently unlawful, and is profoundly at odds with our nation’s basic notions of fairness."

Third, in some smaller number of cases, the Justice Department has invoked the federal "material witness" statute as a basis for incarcerating people charged with nothing at all-not even with overstaying their visas-for the supposed purpose of securing their grand jury testimony. Judge Scheindlin ruled that this was a misuse of the statute, which, she found, authorized detaining material witnesses only for criminal trials, not for grand jury testimony. "Relying on the material witness statute to detain people who are presumed innocent under our Constitution in order to prevent potential crimes," she said, "is an illegitimate use of the statute."

Fourth, Justice has apparently detained several dozen foreigners for weeks under a stunningly open-ended September 20 regulation that extends the Immigration and Naturalization Service’s power to detain foreigners without charges, during emergencies, from the previous maximum of 24 hours to an indefinite "reasonable" period.

Meanwhile, more and more former detainees have told harrowing tales of being held for weeks or months without explanation and with minimal access to lawyers, family members, or telephones, and of being treated worse than the convicted criminals with whom many have been incarcerated.

Ashcroft’s shaky, shifting rationales for cloaking in secrecy the reasons for and details of these detentions, as well as the conditions of confinement, have not impressed the courts. U.S. District Judge Nancy Edmunds of Detroit, for one, held on April 3 that the order closing all deportation proceedings to the public was a clear violation of the First Amendment. This was consistent with our law’s traditional abhorrence of unnecessary secrecy-a convenient cloak for abuse-in legal proceedings. Other challenges to Ashcroft’s secrecy orders are pending.

Public concern about Ashcroft’s detention regime has been muted by the facts that the foreigners cannot vote and that the rest of us have not been affected. But our history shows that "measures initially targeted at noncitizens may well come back to haunt us all," writes David Cole, a leading civil-liberties litigator who teaches law at Georgetown University.

An aggressive, when-in-doubt-detain approach was understandable in the immediate aftermath of September 11, amid fears that hundreds more Al Qaeda terrorists might be plotting new attacks. But after eight months, the record suggests that the 1,100 to 2,000 detentions since September 11 have not netted enough evidence to charge a single person with a conspiracy or other crime involving terrorism. (Zacarias Moussaoui, the alleged "20th hijacker," was in jail on immigration charges for weeks before September 11.) This does not negate the likelihood that Al Qaeda "sleepers" remain at large in this country, or that some may have been among the detainees. (The FBI has linked at least two identified detainees besides Moussaoui to Al Qaeda.) But the record does seem to suggest that we gain precious little safety by detaining so many people based on so little evidence.

Perhaps Ashcroft can show otherwise. Congress should invite him to try.

The post Legal Affairs – Congress Should Investigate Ashcroft’s Detentions appeared first on Stuart Taylor, Jr..

It should do neither. Al Qaeda suspects who have already committed or clearly conspired to commit provable crimes should, of course, be prosecuted. But it would be a mistake to cook up new theories to bring charges against those we cannot prove guilty of conduct widely recognized as amounting to war crimes, terrorist acts, or criminal conspiracies.

The better course would be one hinted at by Defense Secretary Donald Rumsfeld but not publicly acted upon by the Pentagon. That would be indefinite detention, without criminal prosecution, of people captured on the battlefield who appear to be would-be terrorists but have not so far committed any provable crimes.

At first blush, the idea of indefinite "preventive detention" of people convicted of no crime may seem harsh and un-American. Indeed, it has (and probably should have) no basis in domestic U.S. law, with narrow exceptions such as civil commitment of the dangerously mentally ill. Prolonged detention based solely on a suspected propensity to commit future crimes may well be unconstitutional.

But in the current wartime context, these moral objections and legal obstacles are not insuperable. As a legal matter, the president has broad power to decide what to do with terrorists and others captured overseas by the U.S. military. In addition, military prisoners held abroad do not have the same rights under U.S. law as civilian prisoners in the United States. And there are international-law precedents for detaining "unlawful combatants" and members of terrorist organizations until they are no longer dangerous, as well as for detaining prisoners of war until the war is over.

As a moral matter, preventive detention is the least-bad option for dealing with many captured Al Qaeda jihadists. It’s better than setting would-be mass murderers loose to prey on our people or prosecuting them without solid evidence implicating them individually either in war crimes or in specific terrorist conspiracies.

Detainees in this category should not be criminally sentenced but rather locked up for as long as they remain dangerous. That could be many, many years. Both fundamental fairness and respect for international law and opinion would require careful, individualized proceedings to prove that each such detainee has in fact joined the jihad. We don’t want to be locking up some 19-year-old Afghan or Pakistani who once passed through an Al Qaeda camp with the sole purpose of fighting for the Taliban against the Northern Alliance.

Unfortunately, Pentagon officials are reportedly focusing on prosecuting the Guantanamo detainees, despite their apparent inability to squeeze much incriminating information out of them. Officials are considering "a new legal doctrine that would allow prisoners to be brought before military tribunals without specific evidence that they engaged in war crimes," Neil A. Lewis reports in The New York Times; for example, senior Al Qaeda members could be held responsible for war crimes committed by other members of the same units.

An even broader theory of prosecution could invoke the long-established law of criminal conspiracy against anyone who knowingly signed on to Al Qaeda’s global terrorist jihad. Under federal law, a person who agrees to collaborate in a succession of murders can theoretically be convicted of murder conspiracy even if he or she has as yet done little or nothing to carry out the conspiracy and is unaware of what other co-conspirators are doing. So any Al Qaeda member could theoretically be charged with conspiring to murder Americans and others. And the same evidence that shows dangerousness would go at least part of the way toward proving conspiracy.

But such a prosecution could present formidable problems of proof. The only evidence against many of the detainees may be that they were non-Afghans fighting in Al Qaeda or Taliban units that committed war crimes in Afghanistan, or that they trained in Al Qaeda camps, as evidenced by captured documents. Criminal prosecutions based solely on evidence as thin as that would stretch the law of conspiracy and its military analogues, including "command responsibility," to unnecessary extremes.

Al Qaeda is a vast, worldwide collection of loosely affiliated groups. Killing Americans is not the only thing that it does. And jihadists do not carry membership cards. So a defendant’s membership in Al Qaeda might be hard to establish. And proof of membership alone might not be very convincing evidence that the individual member had conspired to kill Americans or to commit any traditionally recognized war crime.

This could explain why the administration did not charge Taliban member John Walker Lindh, an American, with conspiring to kill Americans in the United States on September 11, or ever: Although he had trained at Al Qaeda camps, and had met with Osama bin Laden, he turned down an opportunity to undergo intensive training for terrorist attacks overseas, choosing instead to fight on the Taliban front lines. Whether he had become a member of Al Qaeda seems debatable. (The charges against Lindh do include conspiracy to murder Americans in Afghanistan.)

Prosecuting hundreds of Arabs and Muslims before military commissions, without proof beyond a reasonable doubt of personal involvement in recognized war crimes or terrorist acts, might result in many acquittals. And any convictions might not be persuasive enough to rebut the inevitable chorus of "kangaroo-court" complaints in Europe-where we need all the help we can get in our war against Al Qaeda-and elsewhere.

It’s also possible (if unlikely) that federal courts would seek to overturn convictions of doubtful merit, especially if Guantanamo fills up and some such prisoners are moved to the United States. And therein lurks a risk of dangerous confrontation between the courts and the commander in chief.

We need not strain so hard to convict every suspected Al Qaeda jihadist of some crime. Instead, the administration should align its legal grounds and process for locking up so-far-inactive would-be terrorists with the real reason for locking them up. The real reason is not to punish them for past crimes. It is to prevent future crimes. And the same evidence of knowing association with Al Qaeda’s terrorist agenda that could provide a weak basis for criminal prosecution would provide a solid basis for preventive detention.

Here’s how such a process could work: President Bush or the Pentagon could assign the special military commissions that Bush authorized in November to not only try criminal charges but also, in appropriate cases, order indefinite detentions of dangerous people captured on the battlefield. Such detention orders could be based upon clear and convincing evidence that the detainees pose serious threats to the lives of Americans or others, and could continue for as long as the detainee remains dangerous. Given the fanatical thirst of many detainees for American blood, that might end up being for as long as Al Qaeda continues to wage war against us. Or longer.

A preventive detention regime along these lines should pass muster under a reasonable interpretation of either of two international-law doctrines. One has been detailed in decisions of the European Court of Human Rights upholding Britain’s right to detain (but not to mistreat) Irish Republican Army members suspected of terrorist plans. The other is the long-established rule approving detention of prisoners of war and unlawful combatants.

To be sure, the prisoner-of-war rules have been applied to nation-states, not terrorist groups, and require that POWs be repatriated promptly once the war is over (because they no longer pose any danger). But Al Qaeda has more capacity than most nation-states to inflict carnage on the United States and its people. And while the war in Afghanistan may soon be over, the war against Al Qaeda will not. The world has changed. International law should adapt.

Preventive detention would also avoid the sticky problem of deciding what sentences to impose. Convictions based on weak evidence, or for relatively minor crimes, would not provide compelling justifications for long prison terms (let alone death sentences). So absent preventive detention, we might find ourselves letting would-be mass murderers loose after a few months or years. Why would we want to do that?

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