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The fine legal line between a civilian and a soldier

`What does it mean to be at war with a terrorist organization? And are the old distinctions between soldier and civilian sufficient, or do we need a new category?'

Before the Sept. 11 attacks, there were soldiers and civilians, and it was pretty easy to tell them apart.

Soldiers fought for countries. If captured, they could be held until the hostilities ended and were generally immune from prosecution for fighting the enemy.

Civilians, on the other hand, could be prosecuted in ordinary courts for grave and politically motivated crimes, like the bombings of the federal building in Oklahoma City in 1995 and of the World Trade Center in 1993.

On Monday, a federal appeals court rejected a new, intermediate category proposed by the Bush administration in 2001: "unlawful enemy combatant," a term intended for people affiliated with the Taliban or al-Qaeda.

The administration had argued that supporters of al-Qaeda represented a novel sort of threat and required a new approach. They are neither soldiers nor civilians, the administration said, and the president should be entitled to have the military detain them indefinitely whether they are captured abroad or in the US.

A divided three-judge panel of the court, the 4th US Circuit Court of Appeals, in Richmond, Virginia, rejected that assertion, at least for people who had been lawful residents in the US. President George W. Bush may not on his own authority, the majority said, "subject civilian alien terrorists within the United States to indefinite military detention."

Last week, two military judges in Guantanamo Bay, Cuba, also underscored the importance of the new category, dismissing charges of war crimes against two detainees there, saying they had not been properly designated "unlawful enemy combatants." Both decisions may yet be overturned. But they have started to bring fundamental questions into focus.

What does it mean to be at war with a terrorist organization? And are the old distinctions between soldier and civilian sufficient, or do we need a new category? John Yoo, an early architect of the administration's legal position, said the Sept. 11 attacks required a new paradigm, one the judges in the 4th Circuit majority failed to appreciate.

The judges, Yoo said, see the terrorists as ambitious criminals. But Yoo argues that they are in fact dangerous combatants whom the government should be free to hold without the constraints of the criminal justice system.

Others say the old distinctions are perfectly capable of addressing terrorism.

Eric Freedman, a law professor at Hofstra University who represents men held at Guantanamo, said it was nonsensical and counterproductive to go to war against a group of terrorists. He offered an analogy.

"The Colombian drug cartel has airplanes and bombs and boats, and it shoots down American airplanes," Freedman said. "They're criminals. You can't go to war against the Colombian drug cartel. If you could, then when they shot down an American military airplane, they wouldn't be guilty of anything. They'd have combat immunity." Supporters of the administration say that analogies like that are not only naive but also prove the need for a third category.

On one hand, they say, terrorists cannot be considered civilians because they could not then be singled out for military attack or assassination or held for intelligence gathering. On the other, they are not entitled to the protections granted to soldiers because they do not fight on behalf of nations or follow the laws of war.

Critics of the administration say that reasoning is convenient, as it gives the government essentially complete discretion to seize and hold anyone it wants without recourse to the courts. On Monday, the 4th Circuit agreed.

"The Constitution does not allow the president to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process," Judge Diana Gribbon Motz wrote for the majority, "and this is so even if he calls them `enemy combatants.'"

Detlev Vagts, professor of international law at Harvard Law School, said the "really puzzling" aspect of the administration's approach was that it applied to people apprehended anywhere in the world.

"The idea that someone who is not captured during battle is an unlawful combatant is new," Vagts said.

Even assuming that a new category is required, some legal experts said, it is hard to know what criteria distinguish enterprises like drug cartels, the Mafia or the men behind the Oklahoma City bombings, which are subject to the criminal justice system, and groups like al-Qaeda, which the administration says it can choose to subject to military law.

Yoo said several factors should be considered in deciding how to classify a given group, including whether its goals were political or financial, the scale of the destruction it caused and whether the purpose of its attacks included wiping out the US leadership.

What is clear, said Glenn Sulmasy, who teaches international law at the Coast Guard Academy, is that the old rules require new scrutiny.

"It is a hybrid warrior we're fighting in a hybrid war," Sulmasy said, "and it doesn't fit neatly in the criminal justice structure or in the law-of-war structure."

Supreme Court justice Sandra Day O'Connor expressed the same frustration in 2004 in her opinion Hamdi v Rumsfeld, which said Congress had authorized the president to detain men captured on the battlefield in Afghanistan.

The court's ruling, she wrote, was informed by its understanding of "longstanding law-of-war principles."

"If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war," O'Connor added, "that understanding may unravel."

"We may be at that point," said Eugene Fidell, an expert in military law in Washington. "It's a very untidy landscape."

"There are category problems, and maybe category errors," he said.
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