The more we move along, the more it seems that we are going outside whatever legal framework we have for dealing with various kinds of crimes. Because when Bush initially proposed the military commissions, it seemed to me, the suggestion was that these were people who were likely to be charged with committing war crimes. They could be judged by a military tribunal because that is what is provided for in the international law of war; they didn’t have to be brought before a domestic American court. But at this stage it doesn’t seem as though in fact they’re going to be charged with war crimes. It seems that they’re going to be charged if at all with a conspiracy to commit terrorism. Then the question is, under what body of law would these charges take place? Is there international criminal law under which these charges would take place? Is there domestic law in the United States? And I don’t think the administration has yet identified a body of law under which charges would proceed. So I think the whole thing at this stage is in a kind of legal limbo.

If we find some new framework, to meet what is said to be a new set of circumstances, I don’t think it can be simply detaining these people without any kind of proceeding. And then the question is, what would actually be charged against them in a proceeding. And I would imagine that if you’re going to proceed in a way that adheres to at least principles of law, if not the actuality of law, you’d have to prove the following: That al Qaeda, or whatever organization they’re alleged to be associated with, is a criminal organization, that they are members of this criminal organization, that in affiliating with this criminal organization they were aware of the crimes that were committed by al Qaeda or that al Qaeda conspired to commit, and that their membership in al Qaeda was a conscious combination to be involved in such a criminal conspiracy. I mean that would be analogous let’s say to what the United States Supreme Court ultimately determined with respect to Smith Act prosecutions. That is, that it’s not enough to be a member of the criminal organization, you have to have knowledge of the crimes that were committed or that are to be committed, and have the intention of being a member of the conspiracy for those purposes.

It is a high standard of proof, but if you revert to an earlier period, and you say that there was an international Communist conspiracy to overthrow the government of the United States, would it have been sufficient to say that someone is proven to be a Communist and therefore can be imprisoned on those grounds? That’s what the courts essentially said in the United States in cases like Dennis dealing with the conviction of the top Communists, but subsequent Supreme Court rulings said that’s not sufficient, you have to know about the conspiracy and have the intention of the acts which were attributed to the conspiracy. If one doesn’t do that, then you could get an awful lot of people who could be rounded up and held indefinitely – why these people and not a great many other people who could be detained in this way?

With regard to the proof you would need beyond mere membership – ordinarily with a conspiracy, you’d want to show a certain number of overt acts, and I think a training camp would in fact be such an overt act. Whether that’s sufficient for the purpose of demonstrating knowledge – if you’re engaged in a training camp that shows you how to blow up buildings or how to carry out assassinations, I think that’s a significant overt act.

As far as the detention of people without trial or after acquittal, until the end of hostilities – that seems to import the laws of war, but I don’t think you can have it both ways. I think you can charge people with crimes of war, if you’re going to proceed on the theory that their crimes are related to the armed conflict, and then holding them until the end of the armed conflict would be consistent with the laws of war. But it looks to me as though the administration has moved away from crimes of war, and intends not charging them with things related to the actual hostilities, but charging them with respect to an international terrorist conspiracy, and defining that as being something that is outside the laws of war. So importing that concept from the laws of war looks to be a sort of, choose one from column A and one from column B, and whatever is most harmful to the people who have been apprehended is what we’re going to go with.

I think they have to make some kind of choice. I don’t think it’s altogether unreasonable to say that we’ve got a new situation, and we’ve got to improvise, but if you improvise, I think there’s a fidelity to the principles of law that you still have to maintain and just reaching out and taking that one thing from the laws of war, and not providing any of the benefits of the laws of war to the defendants, doesn’t seem to me to accord with principles of law.

Clearly the administration should be seeking an international consensus for its proceedings, on at least two grounds. Number one, I think that would provide a greater spirit of lawfulness to what is done. Beyond that, I think that it is politically in the interests of the United States to convey the impression that what it is doing is legitimate, and I think it arouses cynicism about professions of lawfulness by the US if we act unilaterally in these circumstances. So I think there’s a political interest in approaching this multilaterally and a legal interest in approaching it multilaterally.

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