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Distinguishing U.S. Prisoners in War in Afghanistan


Ever since the U.S invasion of Afghanistan, proponents of the war have attempted to justify it by saying that the Afghan government “harbored” the people who purportedly orchestrated the 9/11 attacks. In doing so, proponents claim that the U.S. government was justified in invading the country on two grounds: (1) to capture or kill Osama bin Laden and other members of al-Qaeda, and (2) to wage war on the Taliban government for “harboring” bin Laden and al-Qaeda.

When the U.S. government began transferring prisoners from its war in Afghanistan at its prison camp and military “judicial” center at Guantanamo Bay, it conflated two classes of prisoners — Taliban prisoners and al-Qaeda prisoners — and treated them as if they all fell into the same category — “terrorists.”

That conflation has become the standard mindset of those who have supported the U.S. occupation of Afghanistan for the last 13 years. Whenever U.S. forces have captured, killed, maimed, tortured, or incarcerated any Afghan, proponents of the war, along with most members of the U.S. mainstream media, have automatically concluded that the targeted person is a “terrorist.”

That’s the sentiment expressed by many U.S. conservatives regarding the five Taliban prisoners who were recently traded for U.S. soldier Bowe Bergdahl. Outraged over the trade, conservatives said that the president should never have agreed to release those “terrorists.”

The first thing we need to remember is that under our system of government, the U.S. war on Afghanistan was illegal. That’s because the U.S. Constitution requires a congressional declaration of war against a country before the president can legally wage war. Congress never declared war on Afghanistan. Therefore, the president was never lawfully empowered to wage war against the Taliban.

The second issue that arises is: Did the U.S. government have the legitimate authority to invade Afghanistan based on the claim that the Afghan government “harbored” bin Laden and al-Qaeda?

If it could be shown that the Afghan government had foreknowledge of the 9/11 attacks and that it was knowingly providing al-Qaeda with a base of operations from which to launch such attacks, then, yes, that would surely be considered an act of war that would justify going to war over.

But there is a big problem here: U.S. officials never provided us with any such evidence, despite having promised to do so early on. The only reasonable explanation for that failure is that that they never had such evidence.

Thus, the third issue is: Can a nation wage war against another nation simply because people have purportedly orchestrated a terrorist attack while living within that nation?

The answer is “no” because the foreign government did not knowingly participate in the attack or knowingly facilitate it.

For example, consider the attack by Cuban exiles at the Bay of Pigs in 1961. Would that involve the U.S. government? Of course it would because it was the CIA that was secretly planning and orchestrating the attack. The attack at the Bay of Pigs was a bald-faced act of aggression on the part of the U.S. government, given that Cuba had never attacked the United States or even threatened to do so.

But suppose a group of Cuban exiles today entered Cuba and bombed a building, without the consent or knowledge of the U.S. government. In that case, the U.S. government would not have committed an act of war against Cuba.

In fact, proponents of the war on Afghanistan easily forget that all these principles were implicitly endorsed by the Bush administration after the 9/11 attacks. In the aftermath of those attacks, U.S. officials demanded the extradition of Osama bin Laden, which means that they wanted the Afghan government to deliver bin Laden to the custody of the U.S. government.

Would Bush have done that if it had any evidence that the Afghan government had foreknowledge of the 9/11 attacks or that it was somehow complicit in the attacks?

Of course not. In that case, the U.S. would simply have gone to war against Afghanistan.

That’s not what Bush did. Instead, he demanded that the Taliban government extradite bin Laden to the United States.

There was one big problem, however: There was no extradition agreement between Afghanistan and the United States. Without an extradition agreement, Afghanistan was under no legal obligation to comply with Bush’s extradition demand.

Notwithstanding that problem, the Taliban said that it was receptive to sending bin Laden to an independent nation for a fair trial, conditioned on the U.S. providing the Afghans with the type of evidence that would ordinarily be used in an extradition hearing.

Bush said no. His extradition demand was unconditional, and the Afghan government refused to comply.

That’s the reason that the U.S. government initiated its undeclared war against Afghanistan — simply because Afghanistan refused to comply with Bush’s extradition demand, a demand that was not founded on an extradition treaty between the two nations.

Does a nation’s refusal to comply with an extradition demand in the absence of an extradition treaty constitute “harboring” a terrorist?

Of course not. Otherwise, what would be the point of extradition treaties? Under the law, the only time a nation has the legal obligation to extradite a person is when there is an extradition agreement between the two nations. No treaty, no obligation.

Thus, when the United States went to war against Afghanistan, the U.S. government was the lawbreaker from the inception. It was the aggressor.  It was the war-starter, while Afghanistan was the nation defending itself from an illegal war that had been launched against it.

Under legal principles set forth at the Nuremberg War Crimes Tribunal, the U.S. became guilty of waging a “war of aggression” against Afghanistan. That meant that no U.S. soldier, including Bowe Bergdahl, had the legitimate authority to kill any Afghan citizen pursuant to such a war. In fact, that may have been one of the things that Bergdahl began realizing prior to his capture by Taliban forces.

What about bin Laden and al-Qaeda. It is well-established U.S. law that terrorism is a crime, not an act of war. If you don’t believe me, just go look up the U.S. Code, which specifies federal crimes. You’ll find terrorism is listed among federal crimes.

If that doesn’t convince you, then go talk to any federal judge in New York City or, for that matter, the U.S. Attorney in New York City. They will tell you that there are terrorism cases in U.S. District Court in New York City and other places around the country. The reason for that, they will tell you, is that federal grand juries indict (i.e., charge) people with the criminal act of terrorism, after which they are indicted and prosecuted in federal district court as criminal defendants.

Thus, from the inception, under U.S. law bin Laden and al Qaeda were accused criminals — people who were suspected of having orchestrated the 9/11 attacks.

When a suspected criminal is residing in a foreign country, does that entitle a nation in which the criminal act took place to militarily invade the nation where the suspect is residing?

Under the law, the answer is no. Again, that is what extradition agreements are all about—they enable nations to work together to extradite suspected criminals between the two nations. But no extradition agreement, no obligation.

For example, consider a man named Jose Posada Carriles. The Venezuelan government accuses him of having orchestrated the terrorist bombing of a Cuban civilian airliner over Venezuelan skies, which killed dozens of innocent Cubans, including the young members of Cuba’s national fencing team. Posada resides here in the United States. Venezuela has demanded his extradition but the U.S. government refuses to comply with the extradition request, possibly because Posada is reputed to have ties to the CIA.

Does Venezuela have the legal authority to militarily invade or bomb the United States to capture or kill Posada? I’m willing to bet that even the most hard-core of U.S. foreign interventionists would say no and that even they would consider such an attack an illegal act of war on the part of Venezuela.

Oh, did I mention that there is an extradition treaty between the United States and Venezuela?

The fact is that when the U.S. invaded Afghanistan to capture or kill bin Laden and his cohorts, it was operating solely as a police force — like an international policeman — not as part of a wartime operation. The problem is that all too many people, including the U.S. federal judiciary, believe that whenever the Pentagon is involved in a law-enforcement operation, that automatically converts it into a war.

Not so. For example, in Latin America both the Pentagon and Latin American military forces kill people as part of their joint “war on drugs.” That doesn’t convert the “war on drugs” into a real war, any more than a “war on terrorism” converts that activity into a real war. It simply means that the military is being used in a law-enforcement capacity, one in which criminal laws are being enforced by the military.

All that is to say that from the beginning, anyone suspected of involvement in the 9/11 attacks who was taken into custody should have been brought immediately to New York to stand trial, given that, under U.S. law, terrorism is a criminal offense.

Members of the Taliban government who were taken prisoner as part of the U.S. government’s illegal and unconstitutional war of aggression were entitled, under the laws of war, to be incarcerated in POW facilities and treated in accordance with the Geneva Convention. They should never have been treated as suspected criminals (i.e., “terrorists”) and certainly should never have been tortured.

Of course, in retrospect, the U.S. government should never have invaded Afghanistan, especially given that most of the people the troops have killed had nothing to do with the 9/11 attacks. They should have waited bin Laden out, the same way they waited out Ramzi Yousef, the man who committed the 1993 terrorist attack on the World Trade Center and who was ultimately arrested in Pakistan, brought to the United States, indicted, prosecuted, and convicted of terrorism in U.S. District Court.

Ideally, the U.S. government would never have been intervening in the affairs of other nations, including those in the Middle East. If that had been the case, there never would have been the 9/11 attacks and, therefore, there never would have been an invasion of Afghanistan or, for that matter, Iraq.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.