This article was first published on the Stratfor website.
The author, George Friedman, is chairman and CEO of Stratfor, the
world’s leading online publisher of geopolitical intelligence.

The five defendants in the 9/11 trial at Guantánamo are shown this sketch by courtroom artist Janet Hamlin. They are, from top to bottom, Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al-Shibh, Ali Abdul Aziz Ali, and Mustafa al-Hawsawi.U.S. Attorney General Eric Holder has decided that Khalid Sheikh Mohammed
will be tried in federal court in New York. Holder’s decision was
driven by the need for the U.S. government to decide how to dispose of prisoners at Guantanamo Bay, a U.S. Naval base outside the boundaries of the United States selected as the camp in which to hold suspected al Qaeda members.

We very carefully use the word “camp” rather than prison or prisoner
of war camp. This is because of an ongoing and profound ambiguity not
only in U.S. government perceptions of how to define those held there,
but also due to uncertainties in international law, particularly with
regard to the Geneva Conventions of 1949. Were the U.S. facility at
Guantanamo a prison, then its residents would be criminals. If it were
a POW camp, then they would be enemy soldiers being held under the
rules of war. It has never really been decided which these men are, and
therefore their legal standing has remained unclear.

War vs. Criminal Justice

The ambiguity began shortly after 9/11, when then-U.S. President George W. Bush defined two missions: waging a war on terror,
and bringing Osama bin Laden and his followers to justice. Both made
for good rhetoric. But they also were fundamentally contradictory. A
war is not a judicial inquiry, and a criminal investigation is not part
of war.

An analogy might be drawn from Pearl Harbor. Imagine that in
addition to stating that the United States was at war with Japan,
Franklin Roosevelt also called for bringing the individual Japanese
pilots who struck Hawaii to justice under American law. This would make
no sense. As an act of war, the Japanese action fell under the rules of
war as provided for in international law, the U.S. Constitution and the
Uniform Code of Military Justice (UCMJ). Japanese pilots could not be
held individually responsible for the lawful order they received. In
the same sense, trying to bring soldiers to trial in a civilian court
in the United States would make no sense. Creating a mission in which
individual Japanese airmen would be hunted down and tried under the
rules of evidence not only would make no sense, it would be impossible.
Building a case against them individually also would be impossible.
Judges would rule on evidence, on whether an unprejudiced jury could be
found, and so on. None of this happened, of course — World War II was a
war, not a judicial inquiry.

It is important to consider how wars are conducted. Enemy soldiers
are not shot or captured because of what they have done; they are shot
and captured because of who they are — members of an enemy military
force. War, once launched, is pre-emptive. Soldiers are killed or
captured in the course of fighting enemy forces, or even before they
have carried out hostile acts. Soldiers are not held responsible for
their actions, but neither are they immune to attack just because they
have not done anything. Guilt and innocence do not enter into the
equation. Certainly, if war crimes are in question, charges may be
brought; the UCMJ determines how they will be tried by U.S. forces.
Soldiers are tried by courts-martial, not by civilian courts, because
of their status as soldiers. Soldiers are tried by a jury of their
peers, and their peers are held to be other soldiers.

International law is actually not particularly ambiguous about the status of the members of al Qaeda.
The Geneva Conventions do not apply to them because they have not
adhered to a fundamental requirement of the Geneva Conventions, namely,
identifying themselves as soldiers of an army.
Doing so does not mean they must wear a uniform. The postwar Geneva
Conventions make room for partisans, something older versions of the
conventions did not. A partisan is not a uniformed fighter, but he must
wear some form of insignia identifying himself as a soldier to enjoy
the conventions’ protections. As Article 4.1.6 puts it, prisoners of
war include “Inhabitants of a non-occupied territory, who on the
approach of the enemy spontaneously take up arms to resist the invading
forces, without having had time to form themselves into regular armed
units, provided they carry arms openly and respect the laws and customs
of war.” The Geneva Conventions of 1949 does not mention, nor provide
protection to, civilians attacking foreign countries without openly
carrying arms.

The reasoning behind this is important. During the Franco-Prussian
war, French franc-tireurs fired on Prussian soldiers. Ununiformed and
without insignia, they melded into the crowd. It was impossible for the
Prussians to distinguish between civilians and soldiers, so they fired
on both, and civilian casualties resulted. The framers of the Geneva
Conventions held the franc-tireurs, not the Prussian soldiers,
responsible for the casualties. Their failure to be in uniform forced
the Prussians to defend themselves at the cost of civilian lives. The
franc-tireurs were seen as using civilians as camouflage. This was
regarded as outside the rules of war, and those who carried out such
acts were seen as not protected by the conventions. They were not
soldiers, and were not to be treated as such.

An Ambiguous Status

Extending protections to partisans following World War II was seen
as a major concession. It was done with concerns that it not be
extended so far that combatants of irregular forces could legally
operate using their ability to blend in with surrounding civilians, and
hence a requirement of wearing armbands. The status of purely covert
operatives remained unchanged: They were not protected under the Geneva
Conventions. Their status remained ambiguous.

During World War II, it was U.S. Army practice to hold perfunctory
trials followed by executions. During the Battle of the Bulge, German
commandos captured wearing U.S. uniforms — in violation of the Geneva
Conventions — were summarily tried in field courts-martial and
executed. The idea that such individuals were to be handed over to
civilian courts was never considered. The actions of al Qaeda simply
were not anticipated in the Geneva Conventions. And to the extent they
were expected, they violated the conventions.

Holder’s decision to transfer Khalid Sheikh Mohammed
to federal court makes it clear that Mohammed was not a soldier acting
in time of war, but a criminal. While during times of war spies are
tried as criminals, their status is precarious, particularly if they
are members of an enemy army. Enemy soldiers out of uniform carrying
out reconnaissance or espionage are subject to military, not civilian,
justice, and frequently are executed.
A spy captured in the course of collecting information is a civilian,
particularly in peacetime, and normally is tried as a criminal with
rules of evidence.

Which was Mohammed? Under the Geneva Conventions, his actions in
organizing the Sept. 11 attacks, which were carried out without
uniforms or other badges of a combatant, denies him status and
protection as a POW. Logically, he is therefore a criminal, but if he
is, consider the consequences.

Criminal law is focused on punishments meted out after the fact. They rarely have been preventive measures.
In either case, they follow strict rules of evidence, require certain
treatments of prisoners and so on. For example, prisoners have to be
read the Miranda warning. Soldiers are not policeman. They are not
trained or expected to protect the legal rights of captives save as
POWs under the UCMJ, nor protect the chain of custody of evidence nor
countless other things that are required in a civilian court. In
criminal law, it is assumed that law enforcement has captured the
prisoner and is well-versed in these rules. In this case, the capture
was made without any consideration of these matters, nor would one
expect such consideration.

Consider further the role of U.S. covert operations
in these captures. The United States conducts covert operations in
which operatives work out of uniform and are generally not members of
the military. Operating outside the United States, they are not
protected by U.S. law although they do operate under the laws and
regulations promulgated by the U.S. government. Much of their
operations run counter to international and national law. At the same
time, their operations are accepted as best practices by the
international system. Some operate under cover of diplomatic immunity
but carry out operations incompatible with their status as diplomats.
Others operate without official cover. Should those under unofficial
cover be captured, their treatment falls under local law, if such
exists. The Geneva Conventions do not apply to them, nor was it
intended to.

Spies, saboteurs and terrorists fall outside the realm of
international law. This class of actors falls under the category of
national law, leaving open the question of their liability if they
conduct acts inimical to a third country. Who has jurisdiction? The
United States is claiming that Mohammed is to be tried under the
criminal code of the United States for actions planned in Afghanistan
but carried out by others in the United States. It is a defensible
position, but where does this leave American intelligence planners
working at CIA headquarters for actions carried out by others in a
third country? Are they subject to prosecution in the third country?
Those captured in the third country clearly are, but the claim here is
that Mohammed is subject to prosecution under U.S. laws for actions
carried out by others in the United States. And that creates an
interesting reciprocal liability.

A Failure to Evolve

The fact is that international law has not evolved to deal with
persons like Mohammed. Or more precisely, most legal discussion under
international law is moving counter to the Geneva Conventions’ intent,
which was to treat the franc-tireurs as unworthy of legal protection
because they were not soldiers and were violating the rules of war.
International law wants to push Mohammed into a category where he
doesn’t fit, providing protections that are not apparent under the
Geneva Conventions. The United States has shoved him into U.S. criminal
law, where he doesn’t fit either, unless the United States is prepared
to accept reciprocal liability for CIA personnel based in the United
States planning and supporting operations in third countries. The
United States has never claimed, for example, that the KGB planners who
operated agents in the United States on behalf of the Soviet Union were
themselves subject to criminal prosecution.

A new variety of warfare has emerged in which treatment as a
traditional POW doesn’t apply and criminal law doesn’t work. Criminal
law creates liabilities the United States doesn’t want to incur, and it
is not geared to deal with a terrorist like Mohammed. U.S. criminal law
assumes that capture is in the hands of law enforcement officials.
Rights are prescribed and demanded, including having lawyers present
and so forth. Such protections are practically and theoretically absurd
in this case: Mohammed is not a soldier and he is not a suspected
criminal presumed innocent until proven guilty. Law enforcement is not
a practical counter to al Qaeda in Afghanistan and Pakistan. A nation
cannot move from the rules of counterterrorism to an American
courtroom; they are incompatible modes of operation. Nor can a nation
use the code of criminal procedures against a terrorist organization
operating transnationally. Instead, they must be stopped before they
commit their action, and issuing search warrants and allowing attorneys
present at questioning is not an option.

Therefore — and now we move to the political reality — it is difficult to imagine how the evidence accumulated against Mohammed could enter a courtroom.
Ignoring the methods of questioning, which is a separate issue, how can
one prove his guilt beyond a reasonable doubt without compromising
sources and methods, and why should one? Mohammed was on a battlefield
but not operating as a soldier. Imagine doing criminal forensics on a
battlefield to prove the criminal liability of German commandos wearing
American uniforms.

In our mind, there is a very real possibility that Mohammed could be
found not guilty in a courtroom. The cases of O.J. Simpson and of
Jewish Defense League head Rabbi Meir Kahane’s killer, El Sayyid Nosair
— both found not guilty despite overwhelming evidence — come to mind.
Juries do strange things, particularly amid what will be the greatest
media circus imaginable in the media capital of the world.

But it may not be the jury that is the problem. A federal judge will
have to ask the question of whether prejudicial publicity of such
magnitude has occurred that Mohammed can’t receive a fair trial. (This
is probably true.) Questions will be raised about whether he has
received proper legal counsel, which undoubtedly he hasn’t. Issues
about the chain of custody of evidence will be raised; given that he
was held by troops and agents, and not by law enforcement, the chances
of compromised evidence is likely. The issue of torture will, of
course, also be raised but that really isn’t the main problem. How do
you try a man under U.S. legal procedures who was captured in a third
country by non-law enforcement personnel, and who has been in military
custody for seven years?

There is a nontrivial possibility that he will be acquitted or have
his case thrown out of court, which would be a foreign policy disaster
for the United States. Some might view it as a sign of American
adherence to the rule of law and be impressed, others might be
convinced that Mohammed was not guilty in more than a legal sense and
was held unjustly, and others might think the United States has bungled
another matter.

The real problem here is international law, which does not address
acts of war committed by non-state actors out of uniform. Or more
precisely, it does, but leaves them deliberately in a state of legal
limbo, with captors left free to deal with them as they wish. If the
international legal community does not like the latter, it is time they
did the hard work of defining precisely how a nation deals with an act
of war carried out under these circumstances.

The international legal community has been quite vocal in condemning
American treatment of POWs after 9/11, but it hasn’t evolved
international law, even theoretically, to cope with this. Sept. 11 is
not a crime in the proper sense of the term, and prosecuting the guilty
is not the goal. Instead, it was an act of war carried out outside the
confines of the Geneva Conventions. The U.S. goal is destroying al
Qaeda so that it can no longer function, not punishing those who have
acted. Similarly the goal in 1941 was not punishing the Japanese pilots
at Pearl Harbor but destroying the Japanese Empire, and any Japanese
soldier was a target who could be killed without trial in the course of
combat. If it wishes to solve this problem, international law will have
to recognize that al Qaeda committed an act of war, and its destruction
has legal sanction without judicial review. And if some sort of
protection is to be provided al Qaeda operatives out of uniform, then
the Geneva Conventions must be changed, and with it the status of spies
and saboteurs of all countries.

Holder has opened up an extraordinarily complex can of worms with
this decision. As U.S. attorney general, he has committed himself to
proving Mohammed’s guilt beyond a reasonable doubt while guaranteeing
that his constitutional rights (for a non-U.S. citizen captured and
held outside the United States under extraordinary circumstances by
individuals not trained as law enforcement personnel, no less) are
protected. It is Holder’s duty to ensure Mohammed’s prosecution,
conviction and fair treatment under the law. It is hard to see how he
can.

Whatever the politics of this decision — and all such decisions have
political dimensions — the real problem faced by both the Obama and
Bush administrations has been the failure of international law to
evolve to provide guidance on dealing with combatants such as al Qaeda.
International law has clung to a model of law governing a very
different type of warfare despite new realities. International law must
therefore either reaffirm the doctrine that combatants who do not
distinguish themselves from noncombatants are not due the protections
of international law, or it must clearly define what those protections
are. Otherwise, international law discredits itself.

George Friedman is chief executive officer of Stratfor, the world’s leading online publisher of geopolitical intelligence. He is a widely recognized international affairs expert and author of numerous...