A Simple Solution to a Difficult Problem
As I watched the Holder nomination process, I saw a Republican Senator (Specter?) question him about prisoners in Guantanimo Bay. Both he and Holder danced around the need to hold these prisoners indefinitely while at the same time staying true to the American principles of due process.
I didn't watch the whole dance, but they have a point: it's a difficult problem. Here we have a large number of people that fought against us, conspired against us and will likely conspire against us in the future. They are not likely to be accepted by many countries, so they cannot be returned to their place of origins. For the most part, they cannot be convicted in a justice system that will not allow coerced evidence, requires a speedy trial, a jury of peers and errs on the side of innocence over guilt.
It is, indeed, a difficult problem.
But I think the Senator provided the answer in one of his first questions (paraphrased): Do you we believe we are at war?
If we are at war--and every one likes to remind us that we are--there is a convention for holding enemies that would fight against you. You make them prisoners of war.
We could abide by the Geneva Conventions (regardless of whether our enemies do) and still keep these captives from doing us harm. I think the only drawback is that we would be elevating Al Qaida to a nation-like status, which we've kind of already done.
Is there something I'm missing? Some reason we cannot do this?
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The biggest detail you've missed is that we never declared war. The Congress created an "AUMF" to avoid responsibility for their own actions.
A second detail is that war is generally defined as a condition of conflict between states. Under law, the terrorist attacks should have been treated as crimes perpetrated by an international criminal organization, and the suspects apprehended as criminal suspects.
Unless we can manufacture some retroactive sovereign to declare war against, we're stuck having violated the rules of our own criminal justice system.
January 15, 2009 5:10 PM | Reply | Permalink
I think your first two objections are splitting hairs. For most intents and purposes, this is considered a war even if it is not one that we explicitly declared through Congress (a rarity these days). We didn't declare war against Iraq and we considered prisoners taken their as POWs (as required by Convention)—even if we did mistreat them.
And while wars are traditionally against states, the world isn't a static place and we shouldn't be beholden to a semantic technicality.
We need to figure out what to do with these prisoners and the answer is right there. Treat them the way we would treat any other prisoners in an armed conflict: humanely and yet protected and secured away.
The only reason I can see that we are not obligated to do so by treaty now is that we are fighting an enemy that doesn't abide by the rules of warfare. And we can just be the bigger person and ignore that.
January 16, 2009 4:24 AM | Reply | Permalink
Because this so-called war is not against a state, there is no enemy to be vanquished, no victory to be declared, and no end to the so-called war. Therefore there is no end to the prisoners' POW condition. That means that they are confined without due process for an indeterminate, unending period.
That condition is unacceptable and unconstitutional.
January 16, 2009 11:19 AM | Reply | Permalink
If we can determine that they are not a threat, they can be released in any number of ways:
"Prisoners of war may be partially or wholly released on parole or promise, in so far as is allowed by the laws of the Power on which they depend. Such measures shall be taken particularly in cases where this may contribute to the improvement of their state of health. No prisoner of war shall be compelled to accept liberty on parole or promise." —Geneva Convention relative to the Treatment of Prisoners of War
And they're in an unacceptable and unconstitutional situation NOW, anyways. The options we're looking into now are pretty much all going to be a vile interpretation of the American justice system.
Ideally, we could take this to the U.N. and addend the Geneva Convention to account for terrorists that don't fit into the justice system—and do it in a way that doesn't rob them of due process.
January 16, 2009 2:14 PM | Reply | Permalink