A long time ago I lived on the same street with one of those idiotic yappy little dogs whose life consisted mainly of eating, sleeping, fouling his environment, and chasing cars, particularly mine. One day, I ‘d had enough. When the dog shot off his porch and began noisily pursuing my car, I slammed on the brakes in the middle of the street. I jumped out, confronted the baffled hound, pointed at the car and bellowed, "Okay, you little (extremely rude word), you caught it! Now what are you going to do with it!?"

I’ve been thinking about that as I considered the problem our government is having with the 110 or so alleged Taliban and Al-Quaeda terrorists that we’re holding. (I say "alleged" not just out of lawyerly reflex. The way things are in Afghanistan, it might well have occurred to some bright Northern Alliance leader that tagging someone as Al-Quaeda might be a good way to get rid of, say, someone you owe money to.) Now that we’ve got these bad boys, what exactly are we to do with them?

The majority of our new guests seem to have come to rest among the palm trees in the so-called "Camp X-Ray" set up at our base in Guantánamo Bay, Cuba. Some human rights groups were more than a little perturbed by photographs of the prisoners gagged, blindfolded, and shackled on their knees. Also, it appears that they’re being held in wire cages, sort of like dog pens, with roofs and floors, but no walls.

Nonsense, the Administration has replied. The shackles and such were only there while the prisoners were being moved. And as for the pens, says the Secretary of Defense, they’re just temporary. Guantánamo Bay wasn’t originally intended to be a prison camp. Its main function until now has been to annoy the heck out of Fidel Castro, so it might be a while before the actual cells are ready. Officials at Camp X-Ray have defended the treatment of the detainees, providing detailed lists of the humane treatment their guests receive. They even get bagels! With cream cheese!

Whatever their treatment, there’s still the most puzzling question: just what are these guys, anyway? Groups such as Amnesty International have called for the detainees to be classified as "prisoners of war." The Bush administration, however, has resisted this idea. For one thing, they point out, the Taliban and al-Quaeda fighters wear no uniforms. The Al-Quaeda don’t owe allegiance to any recognized government. But the major reason for resisting the definition of POW is that POW’s have certain legal rights under international law, such as the right to visits from the Red Cross, the right to regular exercise, and the right to be guarded by bumbling-but-lovable fat guys with comical accents. Okay, maybe I picked up that last part from watching "Hogan’s Heroes," but you get the idea.

The Administration is even more reluctant to call them criminals, even though that would seem to be the definition that most Americans would agree with. Due to the presumption of innocence, however, that would guarantee them even more due-process rights than they would have as POW’s. Nobody is really eager to see these people be defended by Johnnie Cochran. There’s also the problem that convicting them as criminals requires some evidence of specific wrongdoing, not a statement by some Afghan warlord that they belong to the Taliban or Al-Queda. That evidence may be hard to come by, since any bad acts they may have committed most likely happened in the confusion of battle. Furthermore, by most accounts that I’ve read, these people aren’t talking much. We can pretty much count out the possibility that they’re going to have a Perry Mason moment, break down in court, and confess.

The term Secretary Rumsfeld seems to be leaning towards has been "unlawful combatants." This sounds awfully vague, but it actually does have a legal meaning. In a 1942 case involving eight German saboteurs caught in the U.S., the US Supreme Court defined it this way: "The enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals." Now, this would certainly apply to terrorists caught within the U.S. But the problem with defining the prisoners at Camp X-ray this way is that they didn’t "come secretly through the lines": they were huddled in their caves with their hands over their ears until we bombed them out of their rat-holes and flew them to American territory.

No current legal definition of these people’s status seems to fit this new kind of ex-combatant, and we need one. This is more than just legal hairsplitting. If we’re holding people on the theory "just because we can," we’re taking a dangerous first step from being a government of laws to a despotism, a government founded on the principle that "might makes right." While this Administration has not exactly been a friend to lawyers, they need to realize that the legalities matter. Whether we amend and old definition or substitute a new one for these 21^st century barbarians, we need to find a defensible definition and stick to it.

COPYRIGHT 2002 BY JERRY D. RHOADES, JR.