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They aren’t criminal suspects!

Posted by Richard on June 14, 2005

Executive summary: I’m sick of people speaking in criminal justice terms about the detainees at Gitmo and other camps. They aren’t "suspects," they’re enemy soldiers. They’re not entitled to lawyers, they’re entitled to minimally humane confinement for the duration of the war.

Let’s start with a perfect example of what’s wrong with the Republican Party in general, its senators in particular, and most specifically, Sen. John McCain. This is how he supports the administration and counters the absurd rhetoric on Gitmo that the anti-American left and mainstream media (but I repeat myself) have been spewing (emphasis added):

WASHINGTON (AP) – Prominent Senate Republicans said today that closing the Guantanamo Bay prison would not fix a U.S. image tarnished by allegations of U.S. troops mistreating terrorism suspects.

Sen. John McCain, R-Ariz., said there’s no doubt that the United States has an image problem because of allegations of abuse and torture at the prison in Cuba.

However, he added: "The key to this is to move the judicial process forward so that these individuals will be brought to trial for any crime that they are accused of rather than residing in Guantanamo facility in perpetuity."

Aaaaargh! Right there, in one incredibly stupid sentence, McCain has embraced the premises and values of the anti-American left! This is something Republicans do time and time again: they accept the premises and values of their opponents and thus end up defending their supposed principles half-heartedly and apologetically, if at all.

For crying out loud, the guys at Gitmo weren’t apprehended sticking up a convenience store or forging checks! On June 5, regarding Amnesty International and the mainstream media, I wrote:

They want us to treat captured jihadists as suspects to be arrested and tried instead of as enemy combatants to be held for the duration of the war; they want to return to the pre-9/11 Clinton policy of viewing the Islamofascists as a criminal justice problem. This is insane.

A week earlier, I pointed to an important National Review article that made this point forcefully:

But the real meat of the Rivkin and Casey article is their discussion of the war we’re in, the left’s rejection of it as a state of war, and the status of those who wage it against us. They begin by noting that the Amnesty report applies a "criminal-law model," speaking of the Guantanamo detainees as "held without charge or trial…" Nonsense, they say, and make an important point — at least, it ought to be important to a human rights group (emphasis added):

Of course, the men held at Guantanamo Bay are not political dissidents. They are captured enemy combatants. Under the laws of war, they can be detained until the conflict, or at least actual hostilities, are concluded. This has been the practice of the United States, and of every other major power in Europe and elsewhere, for centuries. It is not illegal; it is not immoral. In fact, this rule is one of the first and most important humanitarian advances made in warfare. The right to detain is the necessary concomitant of the obligation to give quarter on the battlefield, to actually take prisoners alive.

It ought to be obvious that the soldiers of al Qaeda and the Taliban captured during battles in Afghanistan aren’t criminal suspects, but prisoners of war. But, they’re not entitled to formal POW status under the Third Geneva Convention because they failed to meet its requirements. For instance, they didn’t meet various conditions imposed on militias and resistance movements, including wearing a uniform or "distinctive sign" and "conducting their operations in accordance with the laws and customs of war." Furthermore, the Convention prohibits certain acts against "Persons taking no active part in the hostilities," including:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

Signatories aren’t bound by the Convention in conflicts with a party that doesn’t adhere to its provisions. Clearly, al Qaeda and the other Islamofascists spit on the customs of war and the prohibitions of the Geneva Conventions on a daily basis. We don’t owe them the courtesies outlined in the Third Convention, which must be earned by reciprocity. In fact, one can argue that we would be justified in shooting all combatants instead of accepting their surrender (I don’t advocate or condone this, by the way).

So, the vast majority of detainees at Gitmo and other camps are prisoners of war, not criminal suspects, but they aren’t entitled to the full protections of the Third Geneva Convention. We can and should detain them until the war is over, and we owe them nothing. For the sake of ourselves and our values, we should give them basic humanitarian treatment, including refraining from torture. As I’ve argued before, the documented Gitmo interrogation techniques aren’t torture, either as defined in the 1987 Convention Against Torture or by any common-sense interpretation of the word.

Are there difficult or unclear cases? Of course there are — this is an unconventional conflict against an unconventional adversary. A non-state entity is waging war on us. We’re charting new territory here.

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.

Given these difficult — unprecedented — circumstances, there’s plenty of room for reasonable people to disagree over the tough cases and judgement calls.

I’m inclined to think that Jose Padilla deserves an attorney and a day in court, although I admit that I haven’t delved deeply into the case. But I don’t see an arrest at O’Hare as equivalent to capture on the field of battle.

On the other hand, I think Richard Reid is a captured enemy combatant. After 9/11, is there any doubt that the cabin of an airliner can be, at the combatant’s option, part of the field of battle?

By all means, let’s discuss and debate the tough cases and difficult questions. And let’s continue to uncover and punish (as the military has been doing) the violations of our documented standards for interrogating prisoners. But enough of the overwrought handwringing over a few unfortunate lapses in what has been, by historical standards, the most humanely fought war ever.

And no more nonsense about lawyers, trials, and due process for prisoners of war!

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