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The truth about Gitmo

Posted by Richard on June 22, 2005

A recurring refrain from Gitmo critics — Amnesty Irresponsible to Sen. McCain — is that the detainees haven’t been been put on trial. I’ve blogged before (most recently, here; also here) about what nonsense this call for criminal trials is.

These people weren’t robbing convenience stores, they were waging war on the U.S. They were doing so as unlawful combatants in repeated and flagrant violation of the Geneva Conventions and the accepted (among civilized nations) rules of warfare. As a consequence, they’re entitled to damn little other than minimally humane treatment. By and large, they’ve gotten better than that, and the exceptions (like Abu Ghraib) have led to investigations and prosecutions.

In my earlier post, I noted that the unconventional nature of this war poses two problems regarding enemy combatants:

In a conventional war, POWs are held until the war is over — until one side surrenders or there is a truce, armistice, or other defined and agreed-upon cessation of hostilities. How will we know when this war is over?

In a conventional war, we have a pretty good idea of who is a combatant and what constitutes the battlefield. In this war, both concepts are vague, ambiguous, and subject to unilateral, surprise redefinition by our adversaries.

I don’t know the answer to the first problem, but I don’t think it’s an immediate concern — the war is clearly ongoing. Anyone who believes it ended when Kabul fell probably also believes we started it and there is no global Islamofascist movement bent on world domination. I don’t take such people seriously. But frankly, this issue — how long can or should we hold them? — is the one that’s most troubling to me. At some point, it must be addressed, and I don’t have a clue.

The second problem can be dealt with through some kind of review process for determining that someone actually is an enemy combatant and deserves to be held. This need not — indeed, should not — be a trial. Instead, it should be a hearing before a "competent tribunal," as suggested in Article 5 of the 1949 Geneva Convention:

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

Note that the treaty mandates such hearings before a tribunal only for the purpose of determining, when there is doubt, whether detainees are formal prisoners of war (and thus entitled to the protections of the treaty) under Article 4. Go read 4.A.(2)(b), (c), and especially (d). Anyone who is an enemy combatant in this war is bound to fail those tests; they sneer at the idea of conducting operations in accord with the international community’s accepted laws and customs of war.

So, you’re probably wondering, when will we set up a competent tribunal and hold these hearings? Well, we did. You just haven’t seen it reported in the news, acknowledged by the critics, or (inexplicably) touted by the administration. Bravo to Michelle Malkin, whose new column sets the record straight on this matter:

Every single detainee currently being held at Guantanamo Bay has received a hearing before a military tribunal. Every one. As a result of those hearings, more than three dozen Gitmo detainees have been released. The hearings, called "Combatant Status Review Tribunals," are held before a board of officers, and permit the detainees to contest the facts on which their classification as "enemy combatants" is based.

On April 5, I blogged about what happened to some of those released detainees. We know at least ten have rejoined the war. We’ve subsequently killed a couple of them on the battlefield.

Gitmo-bashers attack the Bush administration’s failure to abide by the Geneva Conventions. But as legal analysts Lee Casey and Darin Bartram told me, "the status hearings are, in fact, fully comparable to the ‘Article V’ hearings required by the Geneva Conventions, in situations where those treaties apply, and are also fully consistent with the Supreme Court’s 2004 decision in the Hamdi v. Rumsfeld case."

That ruling, may I remind you, addressed the detention of a U.S. citizen as an enemy combatant. As former Attorney General William Barr noted last week in testimony before the Senate Judiciary Committee, "Obviously, if these procedures are sufficient for American citizens, they are more than enough for foreign detainees."

Do John McCain and the anti-Gitmo gang actually believe otherwise, or are they too clueless to realize the implications of their gulag-Pol Pot-Nazi-Eichmann-hellhole harangues?

 Good question. My guess is they don’t care. McCain only cares about the fawning media attention and the adulation of the intelligentsia. The others are too consumed with Bush hatred to let facts or logic interfere with their agenda.

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