November 15, 2003
The Thorny Guantanamo Bay Problem
We have a serious problem with Guantanamo Bay detainees. Most on the Left seem to have a love affair with the idea that the detainees are entitled to due process and lament the fact that they have no charges filed against them and have not been given access to attorneys. Al Gore says, “It is no accident that our Constitution requires in criminal prosecutions a ‘speedy and public trial.’ The principles of liberty and the accountability of government, at the heart of what makes America unique, require no less. The Bush Administration’s treatment of American citizens it calls ‘enemy combatants’ is nothing short of un-American.”From the Right, Rich Lowry counters that, if prisoners captured during fighting are extended these rights, “Under their new dispensation, carried to its logical end, every member of Saddam Hussein’s Fedayeen would hire personal-injury lawyers to represent them should they get hurt by American soldiers.”
This difference, it seems to me comes down to how you view the war on terror. Is it a metaphorical war, like the “war on drugs” or the “war on poverty”? Or is it a literal war, like World War II or the Gulf War?
Few would argue that Germans captured during the fighting in World War II needed to be charged with any crime in order to be held. Since they need not be charged with a crime, there is no need for a lawyer. They are only accused of fighting on the other side of the war – not a crime in and of itself. War crimes charges can be brought later, but then they do get charged with a crime and get an attorney and so on. So even innocent German soldiers captured during World War II were, fairly, held until Germany surrendered.
Therefore, if this were a literal war, as I believe it is, we would have no problem holding and interrogating these prisoners for the duration of that war. We could not subject them to torture or extra punishment or execute them without due process, but we could hold them, because it would be foolish in the extreme to return captured enemies to the front of battle.
However, the administration has refused to designate the detainees as 'prisoners of war' under the Geneva Convention. The prisoners do not qualify for POW status as defined by the Geneva Convention Article 4, which states that prisoners of war are members of the opposing country’s armed forces, or members of other militias that, among other things, have "a fixed distinctive sign recognizable at a distance." The prisoners captured in Afghanistan and other nations in the war on terror do not fall in to these categories. Therefore, the U.S. may be entitled to deny them prisoner of war status, although Article 5 states that when there is doubt about the status of a prisoner, "such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."
Why would the U.S. fail to provide these prisoners with prisoner of war status regardless of the special circumstances under which they were captured? What is the problem with designating them as prisoners of war?
First there is the problem of communication. The Geneva Convention, Section V deals with relations of prisoners of war with the exterior. Article 70 states that prisoners of war must be able to contact their families within a week of being captured and Article 71 states that prisoners of war shall be allowed to send and receive letters and cards. This administration is obviously loath to permit that, given the fact that they have refused to release the names of those captured.
But a thornier issue is the issue of repatriation at the "cessation of active hostilities". When you capture Saudis and Pakistanis during your war with Afghanistan, and the individuals remain sworn enemies of the United States, must you repatriate them to their respective countries after your war with Afghanistan? That would not make much sense, since their allegiance is not with Afghanistan but with al Qaeda and al Qaeda related terror groups. Given the loosely coupled nature of al Qaeda, we can never expect a meaningful formal surrender and neither can it be completely annihilated. Therefore we would be free to hold these prisoners in perpetuity.
Let us stipulate, for the sake of argument, that the U.S. can fail to designate these detainees as prisoners of war at its discretion, and that it is justified in claiming that the Geneva Convention was not designed to address the kind of war in which we are now engaged. The Left would still be correct when they complain that the detainees are in a legal “black hole”. The administration may be justified in denying the prisoners the right to communicate with the outside world. (I’m up for debate on that one.) The administration may be justified to hold most of these prisoners for their entire lives. However, in the interest of justice, it is incumbent upon this administration to spell out what the U.S. policy towards these prisoners will be in the long term.
Suppose that the U.S. captured an innocent bystander in the heat of battle. The detainment of that innocent person, provided they are treated humanely, is a regrettable but bearable cost of a finite war. However, if it is a war without end, that is another story. They should eventually be given a hearing, if not in civilian court, then a military tribunal, but they should be guaranteed at least one hearing if not recurring hearings – like a parole board. There should be a process for them to bring grievances against their captors. This need not be a touchy-feely international organization. The important thing is to specify what it is and communicate it to the prisoners.
As a conservative, I am glad that we live in a nation of laws, not men. Since there seems to be no law that governs the treatment and disposition of these "enemy combatants", we should make one and stick by it.
Jason, a remarkable piece of writing. My thanks to you for an excellent elucidation of a complex issue facing America. I agree with your conclusion. A status must be assigned to the prisoners with incumbent treatment and process and we must adhere to it if we are not to set the stage for similar treatment of our own soldiers in this and future conflagrations.
Posted by: David R Remer at November 16, 2003 07:49 AMA very impressive piece Jason. You have carefully picked a logical path through this topic, but you make no allusion to fact that what is happening in Guantanamo is not only morally and ethically wrong but damaging the goal of securing US safety/ world democracy. This, indeed, could be said of a significant number of Bush’s policies. I wonder, how many innocent people have to have been picked up and imprisoned before “regrettable but bearable” becomes unacceptable? At what point would you make this distinction? There is a war on, but what’s the point in it being fought the way it is, if the policies in place produce more terrorists than they kill?
Posted by: Bob Hope at November 19, 2003 10:13 AMWhat, pray tell, would be an effective form of incarcaration that these would be recruits and future terrorists would find acceptable? What are we doing in Guantanamo? We know that we do not allow cards or letters to be sent or received. We know that most have not been charged with a crime or provided with an attorney (which is quite sensible as I pointed out, since soldiers are not criminals). These are our great crimes. I’m not happy about the legal limbo there, as I said in my piece, but let’s keep a little perspective here.
The Taliban used to have public executions by stoning for adultery. Do you think there are any Taliban sympathizers complaining about the treatment of their compatriots from a principled position?
Posted by: Jason Erickson at November 19, 2003 10:36 PMThe problem is, that as much as they can’t prove us wrong, we can’t do so either. We are force to say to those who ask why “Just because…”, and that is a lousy response.
Am I in a love affair with these people? No. I just don’t think that either our appearances or realities are much improved by such treatment.
There are questions I would like to see resolved, and limits on this practice I would like to see in place. I do not trust our government sufficiently to leave the question of what enemy combatant means in their hands. this administration has a bad habit of playing fast and loose with civil liberties, with freedom itself, in the name of preserving security, and I do not feel too well about taking that first step on the road to making our country one of the many who keep political prisoners.
And who could blame me, when your people speak of treason and liberals in the same sentence? When does love of one’s country get replaced with obedience to a party line? When does the American enemy combatant get replaced with the enemies of the Republican Revolution?
I know that it hasn’t gotten that bad, but really, I don’t want us to have to get halfway there before we even begin to consider the problem. Better to never indulge that impulse in the first place.
If they are Americans, we should try them in the courts. If they are not, we should send them before a military tribunal like we were threatening to do in the first place. Either way, we should not be giving the appearance that we can’t justify what we do.
Posted by: Steve Daugherty at November 24, 2003 11:57 AMFrankly, I don’t really understand what you are trying to say in the first two paragraphs, so I’ll skip to the third:
You say that you don’t trust our government to come up with a policy of how to deal with these enemy combatants. This is a ridiculous point since the government holding the prisoners is the only one that can decide what to do with them. There is no other qualified body, whether you trust them or not. Who else could make such a policy? My criticism was that our government has not made ANY policy so far - only voiced a lack of policy - i.e. to say that they are not POW’s. If they are not POW’s, OK, but they need to say what due process an ‘enemy combatant’ is entitled to, and ‘none’ is not an acceptable answer. So you see, we are substantially on the same side here. I get the feeling that you did not read my initial post.
If they are Americans, they can be tried for treason in U.S. courts. If they are not, as I said before, THERE IS NO CRIME. Military tribunal for what? Fighting a war? That is not a crime. But that does not mean you cannot be held. A warring party certainly has a right to hold its enemy combatants until the cessation of hostilities. To say otherwise would be nonsense. Again, I think we are substantially on the same side when we call for some kind of due process for these people since innocent bystanders can be swept up in battle - i.e. a hearing to find out if the enemy combatant is really an enemy combatant.
As far as my previous comment, I was attacking the point that our treatment of enemy combatants can actually be used as a recruiting tool for the enemy. My question, which was not answered, was what sort of treatment of our prisoners would be acceptable to the enemy and would be recruits. The answer, I must believe, is that there is no such treatment. The enemy hates us, not for our treatment of our enemy combatants, not for our unilateralism on Kyoto, not for the way we treat the U.N., but because we are infidels and, to compound that, we don’t hate the Jews nearly enough for them. 9/11 happened under Bush’s watch but it was planned under Clinton’s. This is not to blame Clinton, but simply to point out that it is not as if that attack was a response to Bush policy.
Here is who we are fighting. “Established upon the principles of freedom and democracy, the UN expounds the four freedoms emanating from the capitalist ideology, based upon secularism or the separation of divine law from political life. An examination of the ‘UN Declaration of Human Rights’ shows how the freedoms of ‘expression’, ‘ownership’, ‘worship’ and ‘personal freedom’ form the bedrock of the UN’s constitution, all being alien to Islam, which, far from such anarchy, demands complete, exclusive and non-negotiable submission to the law of the creator, Allah (SWT).”
He would not be impressed by due process in Guantanamo Bay. The due process we must give in Guantanamo Bay is for our own benefit, not to please the terrorists.
Posted by: Jason Erickson at November 25, 2003 07:20 PMThe problem is that the U.S. wants everybody except the U.S. to abide by International Law.
Bush says it was demeaning and against international law when Al-Jazeera filmed captured American soldiers, but there is nothing wrong when the U.S. does the same to Iraqi soldiers or show Sadam Husein having his teeth inspected like some horse up for sale!
Posted by: Toronto Tenants at January 17, 2004 11:46 AM
