Dealing with Combatants in Guantanamo

One sometimes wishes that the Left would lavish a proportional amount of attention on the 11 million prisoners suffering under Fidel Castro as the warden of an entire island as they do to the 660 prisoners held at the US Base in Guantanamo, Cuba. In the last Administration, the Left glowed with smug satisfaction when the only one forced by the United States to enter Cuba was a young boy at gun point. But that was another issue for another time.

What is the appropriate way of dealing with individuals captured on the battlefield in Afghanistan and now detained at Guantanamo? The laws of war were agreed to in an age when powers, especially European powers, fought pitched battles between groups of soldiers. The rules specifying the treatment of captured combatants arose in a context of a clearer separation between soldiers and civilians.

Soldiers are afforded immunity from normal civil laws against killing and destruction. In exchange for this immunity, they are also liable to be the indiscriminate targets of other soldiers. Under the rules of war, civilians are also protected. They are not normally the objects of attacks. This is not to say that civilians are never killed, but under the rules of war, they are not to be the deliberate objects of aggression. When these two categories get blurred, risks increase for both soldiers and civilians, particularly civilians. If captured, soldiers become liable for criminal sanctions. If civilians are viewed as combatants then the dangers to those civilians that do not participate in aggression grows as it becomes more difficult for regular soldiers to distinguish combatants from civilians.

Nonetheless, over time it has become clear that some civilians do join in battle as irregulars. This was a particular problem in the US Civil War when the distinction between civilians, militia members, and soldiers blurred. Even regular soldiers were not always properly uniformed. According to Daniel Moran of the Center for Contemporary Conflict, the Union under the direction of Columbia University law professor Francis Lieber formulated the “Lieber Code.” “It declared that civilians who had organized themselves into `free corps’ in order to resist advancing Union forces should be treated as combatants, even if not in uniform. Clandestine violence by individuals remained subject to summary justice, however, as did any form of civilian resistance once an occupation had been established. ”

This distinction has been recognized and given international sanction in the Geneva Accords, Convention III Relative to the Treatment of Prisoners of War, (1949). Not only are uniformed soldiers to be accorded prisoner of ware status, so too are journalists and service personal, like truck drivers who service the soldiers.

“Members of other militias and members of other volunteer corps ” [when captured are to be treated as prisoners of war] … “provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

  • that of being commanded by a person responsible for his subordinates;
  • that of having a fixed distinctive sign recognizable at a distance;
  • that of carrying arms openly;
  • that of conducting their operations in accordance with the laws and customs of war.”

The Taliban soldiers and members of Al Qaeda have clearly not conformed with the last three conditions and have probably forfeited their right to prisoner of war status.

There really are two choices for the US. The Guantanamo detainees are either civilians or combatants, legal or not. If we treat them as civilians they would have to go through the judicial process and be prosecuted as criminals. This option would have two down sides. It would impose a large prosecutorial burden on the US. Were the US to impose punishment on what others might see as prisoners of war, it could also open the US for criticism. If captured, our soldiers might then be treated as criminals rather than combatants. So the continual treatment of these detainees as prisoners of war, perhaps indefinitely, would seem to be the appropriate course. Of course, there are some other issues. Under prisoner of war status for these irregulars, is the US required to make an accounting of prisoners and to whom? There is no formal government to make a report to. Could such an accounting provide important intelligence to Al Qaeda that relies exclusively on intelligence and deception?

Article I, Section 8 of the US Constitution grants Congress the power “To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.” They should exercise this authority. Although the Administration would certainly balk at any formal procedure for dealing with the irregular prisoners of war that might limit their discretion, Congress should statutorily spell out procedures for dealing with such irregular prisoners. The military has obviously been working out an ad hoc set of procedures. Statutory measures would protect the military from charges of arbitrariness and emphasize American commitment to the rule of law.

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