This editorial appeared in today's Washington Post:
Though Osama bin Laden and Taliban ruler Mohammad Omar are still at large, thousands of their followers are now prisoners, and the number is likely to keep growing. Many are being held in Kabul and other cities by a mix of Afghan authorities. Some may be rounded up by U.S. Marines or captured by U.S. Special Forces in battles now raging in the mountains. The detentions are vital to eliminating Afghanistan's role as a base for Islamic extremists and terrorists from around the world in fact, the number of Taliban and al-Qaida fighters who seem to be slipping away is alarming. But the arrests also raise a thorny and in some ways unprecedented question: what to do with captured fighters who are neither conventional soldiers nor readily identifiable war criminals, in a country that has no functioning courts or justice system.
After several conflicting statements, Secretary of Defense Donald Rumsfeld on Tuesday tried to clarify the Bush administration's position. He said the United States "would like to have control over" the "disposition" of senior al-Qaida and Taliban leaders. At the same time, Mr. Rumsfeld suggested that the Pentagon would like to leave the responsibility of sorting and judging thousands of Taliban and al-Qaida militants to others the new Afghan authorities or the countries of origin of the foreigners. He said it would be "a crime" for al-Qaida's non-Afghan foot soldiers to go free, but he indicated that the United States would depend on others to prevent that.
This approach could save the United States from having to conduct hundreds or even thousands of military trials, an impractical undertaking that would surely trigger a backlash in the Muslim world. Trials by Pakistan and Saudi Arabia of their own citizens, in contrast, could contribute to the political struggle against Muslim extremism in those countries. But some Muslim governments may be reluctant to take back militants captured in Afghanistan; and the Afghans may not have a functioning justice system for some time. The killing of several hundred detainees after some revolted near the town of Mazar-e-Sharif and the reported deaths of others while in custody show how difficult it will be for Afghan authorities to handle large numbers of prisoners.
The Bush administration is right to oppose any amnesty and to insist on control over the disposition of the terrorists who sponsored murderous attacks on the United States and those Afghans who directly collaborated with them. But it should be flexible about the form of that disposition trials and sentences that involve Muslim governments, if they are likely to lead to the same outcomes, would be far better than U.S. military tribunals for the majority of suspects. If the al-Qaida rank and file are to be returned to their homelands, the administration should carefully monitor their handling and insist both on rigorous application of justice and respect for international human rights standards.
Since some foreign militants cannot be safely or responsibly returned home, the administration should actively assist U.N. efforts to rebuild the Afghan legal system, and encourage the new Kabul government to conduct fair trials. It should act quickly to ensure that prisoners now being held are not killed or tortured. As a last resort, it must be prepared to step in and take charge of militants that other authorities are unwilling or unable to handle. The difficulties of dispensing justice in a ruined country should neither lead to massive abuses of human rights nor cause terrorists to go free.