Former Guantanamo Bay detainee Shah Mohammed Alikhil’s nightmare started in January 2002.

Shipped off to Guantanamo as a suspected terrorist, he thought he would face charges. He didn’t.

In light of this, he expected a prompt release. None came.

When the prospect of indefinite detention, without any recourse to legal defense, began to seep into Alikhil’s mind, he fell into despair. He attempted suicide by hanging three times at Guantanamo. Only after more than a year of intense interrogation, the U.S. military handed Alikhil a certificate of release and sent him on his way. The certificate stated:

“This individual has been determined to pose no threat to the United States Military or its interests in Afghanistan or Pakistan. There are no charges from the United States pending this individual. This individual has been repatriated into lawful custody of the Pakistani government. The United States government intends that this person be fully rejoined with his family.”

Alikhil is one of many detainees that were, or still are, held in U.S. custody without the right to challenge the legality of their detention. Many question the moral soundness of such a policy. Try to imagine being thrown into detention without any way to dispute the legal status of your detention. Such a policy merits ethical discernment.

Let’s take a look first at the Bush administration’s justification for detaining suspected terrorists.

The administration points out that “the law of war allows the United States — and any other country engaged in combat — to hold enemy combatants without charges or access to counsel for the duration of hostilities. Detention is not an act of punishment but of security and military necessity. It serves the purpose of preventing combatants from continuing to take up arms against the United States.”

Morally speaking, this makes sense because security, as an integral part of the common good, would require the detention of these combatants. This type of detention marks a key difference between the laws of war and human rights laws in reference to detention. In the context of armed conflicts covered under international humanitarian law, this principle constitutes an exception to human rights laws. Consequently, the Bush administration justifies the use of detention camps like Guantanamo by classifying the detainees as “enemy combatants.”   

However, all of this raises a serious question: If the purpose of detention serves to prevent combatants from taking up arms against the United States, why were enemy combatants like Shah Mohammed Alikhil released? Hostilities continue and the war on terror seems far from over.

The simple answer is that many detainees were captured in places where there was, at least at the time of their arrest, no armed conflict with the United States. Therefore, the term “enemy combatant” does not necessarily mean someone involved in actual combat. It could designate, for the Bush administration, someone who may have aided enemy combatants in some way.

From a moral viewpoint, it’s extremely important to distinguish between detainees captured by the United States in the course of armed conflict and those captured under circumstances that did not involve arm conflict. The distinction is important because detention “without charges or access to counsel for the duration of hostilities” radically departs from established moral principles of human rights laws. In light of this, it seems just and reasonable to apply the laws of war to those actually involved in armed conflict.

Does this mean that those who may have aided enemy combatants stand above the moral law of retributive justice? Absolutely not. It just means they should be classified as “enemies” of the United States in the war on terror and not “enemy combatants.” This distinction would rightly permit those captured outside of armed conflict the right to challenge the legality of their status according to human rights laws.

These human rights laws uphold the fundamental rights of any person accused of wrongdoing, for instance:

— The right to challenge the legality of detention.

— The right to due process rights of independence and impartiality.

— The right to be informed of the reasons for arrest.

—The right to be informed about the evidence underlying these reasons.

— The right to legal counsel and trial within a reasonable time or to be released.

Some may view the moral nuance between enemies and enemy combatants as a shallow consideration in times of war. It isn’t.

True democracy will always look to the moral law for mature and just government. Great democracies don’t create the objective moral principles of conduct but recognize them in natural law from which human rights emanate. In his 1995 encyclical  Evangelium Vitae (The Gospel of Life), Pope John Paul II emphasized this point:

“Fundamentally, democracy is a ‘system’ and as such is a means and not an end. Its moral value is not automatic, but depends on conformity to the moral law to which it, like every other form of human behavior, must be subject. In other words, its morality depends on the morality of the ends that it pursues and of the means that it employs. … The value of democracy stands or falls with the values which it embodies and promotes.”

America will always remain a great democracy for the world to emulate as long as we care about doing what is right.

Legionary Father Andrew McNair

 is a theology professor at

Mater Ecclesiae College in Greenville, R.I.