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.

Posted by at November 15, 2003 9:09 PM