SACHA PFEIFFER, HOST:
After the attacks on September 11, 2001, the George W. Bush administration arrested hundreds of suspected terrorists. Most of them were never criminally charged and eventually let go. Some spent years in inhumane conditions, even though they had no connection to the Taliban or al-Qaida. In 2002, Defense Secretary Donald Rumsfeld visited Guantanamo Bay, Cuba, where many of those prisoners were being held, and described them using this term.
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DONALD RUMSFELD: And one of the most important aspects of the Geneva Convention is the distinction between lawful combatants and unlawful combatants.
PFEIFFER: By labeling them unlawful combatants, the U.S. said it was justified in holding them indefinitely without trial and denying them international legal protections. The Trump administration is now applying the same term to people on board boats it's blowing up because it says they're transporting drugs from South America. The language here matters. It underpins the legal arguments presidents make to justify their actions. Here's current Defense Secretary Pete Hegseth referring to the cartels that ship drugs from the southern hemisphere to the United States.
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PETE HEGSETH: So our message to these foreign terrorist organizations is we will treat you like we have treated al-Qaida.
PFEIFFER: Yesterday, the U.S. said it conducted a military airstrike on a boat in the Caribbean, killing three people. That means so far, the U.S. has struck at least 15 boats and killed more than 60 people whom it's calling unlawful combatants. We wanted to understand the history of that term, so we called Scott Anderson, a former U.S. diplomat and government attorney who's now a fellow at the Brookings Institution.
SCOTT ANDERSON: So the term unlawful enemy combatant first came into common usage after the 9/11 attacks as part of arguments the U.S. government advanced as to why members of al-Qaida and the Taliban and related terrorist groups didn't have to be provided with the full bundle of rights and protections that are usually provided to prisoners of war under international law pursuant to the Geneva Conventions and the related treaties in areas of international law.
PFEIFFER: Well, we should remind people who may not have been born yet that basically that allowed them to arrest hundreds of suspected terrorists and then hold them indefinitely in Guantanamo. Some of them are still there today.
ANDERSON: That's correct. And now, particularly in the last 10 or 15 years, the term has fallen out of use. Usually we hear the somewhat more technical international law term unprivileged enemy belligerent used instead of unlawful enemy combatants. So returning to it is symbolically notable.
PFEIFFER: And by returning to the term, would those defendants then likely get fewer legal protections than a traditional criminal defendant or traditional prisoner of war would?
ANDERSON: Arguably, yes, potentially. I mean, Congress has installed a lot of protections since that time, and the Supreme Court has pushed back on some of these interpretations. The reality is the Trump administration would have a very hard time doing that because we have more than two decades of intervening Supreme Court decisions and legislation that would make it very difficult and that set up pretty clear limits on substantial aspects of what the Bush administration did. But it may suggest that they want to push more in that direction than U.S. policy has drifted in the intervening years.
PFEIFFER: Is there a majority legal view on whether the term is justified in these boat strikes?
ANDERSON: It is, I think, almost the consensus view among outside legal experts that it is not. More than that, and this gets to the use of this term as a way to kind of obfuscate the legal barrier here, most lawyers looking at this say this should not even be viewed through the lens of the law of armed conflict at all because this is not a war. This is the use of military violence against people who would traditionally be viewed as civilians. And in trying to use these sometimes-controversial terms associated with the war on terrorism, the administration is trying to make this all look like just something like the war on terrorism. And the reality is it's something extremely different. You would view this as very close to state-sanctioned murder or targeted killings.
PFEIFFER: We should note that you refer to the people on these boats as, I think, trying to harm the U.S. We should also note that it's unclear who was on the boats. We're, at this point, going by the word of the White House that these were drug smugglers. So it's - the details of exactly who was killed are pretty scant.
ANDERSON: Very good point. Absolutely. And that's also part of the problem here. I mean, in the law of armed conflict framework, you have a situation where it is up to the targeting power, the state that's using violence, to apply a bunch of standards to ensure that they're adequately distinguishing between civilians and military targets. So even if you take the government's framing, the Trump administration's framing of this as an armed conflict, a lot of obligations still apply. And we haven't got a lot of information about how they're complying with it, even within this framework the administration is advancing.
PFEIFFER: Most of the people on those boats have been killed, but a few have lived. And so far, they've been sent back to their home countries, I believe. If there are more strikes and more people survive, does calling them unlawful combatants potentially lay the groundwork for holding them indefinitely, whether at Guantanamo or elsewhere?
ANDERSON: It potentially could. That was the original use of the unlawful enemy combatant language. But I think more realistically, seeing what the Trump administration has done with them, which is return them very quickly to their countries of origin, instead of detaining them and potentially facing that judicial review, I think is a strong indicator they don't have a lot of confidence in their legal arguments. And they don't want to subject them to that review, and it's better to just return these people. And unfortunately, where they're killed, there's not a clear avenue to judicial review like there is if they're detained by the United States, where least there's possibilities of judicial review.
PFEIFFER: So in some ways, it's easier when everyone dies. When someone stays alive, you have a much more complicated legal situation.
ANDERSON: Precisely. I really think the use of unlawful enemy combatant, like the use of terrorism designations, both real and imagined, is a big feint by the administration. They want people to talk about the technicalities of these things, to say, you know, is this an unlawful enemy combatant? And the more fundamental question that people really need to confront about this is that, is this anything like what happened after 9/11? And it absolutely is not. But in bringing up all this terrorist rhetoric and all these terms and drawing focus on these questions of - is this the right use of this designation of this term, of this technicality? - they're able to distract, frankly, from a lot of that conversation.
PFEIFFER: Scott Anderson is a fellow at the Brookings Institution. Thank you very much for talking about this.
ANDERSON: Thank you.
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