Now, watch what I do here. I’m going to do something that’s never, so far as I know, been attempted.
I’m going to criticize Pres. Obama without engaging in hyperbole or personal attacks. I’m going to discuss an important policy matter over which I disagree – even strongly disagree – with the President, without calling him a sell-out or saying he’s stabbed me in the back, and without inadvertently (or not so inadvertently) repeating tea-party-inspired tropes like creeping fascism! or tyranny!
And I won’t say he’s “no better than Bush.”
It’ll be awesome.
So, here we go.
I disagree with the Obama administration over this:
Yesterday, the Obama administration indicated to reporters that long-awaited action codifying the Bush-era policy of indefinite detention for suspected terrorists would be put in place through executive order.
The Obama administration proposal differs from the Bush administration detention review process in that it would be more adversarial -- detainees would be represented by a lawyer, and the boards would be made up of more than just military officials. The process would be, as the New York Times’ Charlie Savage describes it, basically a kind of “parole board” for suspected terrorists.
The problem, as Adam Serwer correctly says in the piece quoted above, is this:
The use of indefinite military detention in armed conflict is well-established, but it’s not clear whether those who would be detained under this policy are actually “battlefield captures,” or whether military detention is a mere smokescreen for holding people indefinitely who should be charged with a crime or released. Complicating this is the reality that the fight with Al Qaeda has no defined endpoint.
Allow me to translate from Mr. Serwer’s more or less plain English to my native tongue: Legalese. The laws of warfare generally allow the warring factions to capture members of the enemy’s armed forces and to hold those combatants – in humane, non-punitive conditions – indefinitely while the underlying conflict goes on. In America, the laws governing capture and treatment of enemy combatants go back at least as far as the so-called Lieber Code adopted by Abraham Lincoln during the Civil War. After World War II, the international community – largely at the behest of the United States – adopted the well known Geneva Conventions which essentially codified existing laws of warfare, including Common Article III which provides the baseline for treatment of individuals captured during warfare even if they don’t meet the legal requirements for prisoner-of-war status. In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the United States Supreme Court held that Common Article III of the Geneva Conventions applies to detainees in the “war on terror,” including those held by the United States military at Guantánamo Bay, Cuba.
While Common Article III deals with, among other things, the conditions of confinement, it does not deal with the conditions for release from confinement, nor does it generally describe the length of time an enemy combatant can be detained. Which makes sense, because the purpose of taking an enemy soldiers captive isn’t to punish them but to incapacitate them – to take them out of circulation, so to speak, so they don’t have the opportunity to shoot or kill your soldiers. So, as a general principle, once a member of the opposing armed forces is captured, he or she can be held for the duration of the conflict or until the capturing force decides that the captured soldier no longer poses a threat. Often even in the midst of a conflict, opposing armies will, as a gesture of goodwill or out of humanitarian concerns, exchange prisoners. But there is not, so far as I know, any legal principle that compels one warring faction to release its captives until it, in its discretion, deems it safe to do so.
However, the legal parameters I’ve describe above assume that the conflict is a discrete and clearly defined conflict against a discrete and clearly defined enemy. If you go to war with Nazi Germany, you know whom you’re fighting and you know when you’ve defeated them. So you know when it’s safe to release the Germans you’ve captured along the way. Which is why one should not, as a general rule, go to war with ordinary nouns, like “terror”; one should instead always go to war with proper nouns – ideally, proper nouns that are country names, or at the very least, the names of organizations that function like military forces, like, say “Germany” or “Afghanistan,” or, at the very least, “al Qaeda” …
But when you go to war with “terror,” how do you know when it’s over? You don’t, and so you could argue that once you’ve captured a “terrorist,” you never have to let him or her go because you can never really defeat “terrorism.” One could also argue that you can never really defeat al Qaeda, because it doesn’t belong to a place or country, it doesn’t have brick and mortar institutions, or territory, or even much of an organization at all; it seems to be comprised of whatever extremists want to call themselves al Qaeda wherever they happen to be located. But theoretically, at least, you can determine when you’re done fighting al Qaeda and then, presumably, it’d be safe to release the various al Qaeda members you’ve taken into custody in Iraq or Afghanistan.
On the other hand, the government claims that some of the people held at Guantánamo are not just combatants in the traditional sense; they’re dangerous extremists who’ve engaged in acts of terrorism, killing innocent civilians and civilian authorities. But if that’s so, there’s a word for those people: They’re war criminals. Okay, that’s two words. The point is, if we’re holding individuals who did more than simply fight our military on the battlefield – people who were involved in the 9/11 attacks, or attacks against civilians in Iraq or Afghanistan, or even the attack on the USS Cole (unilateral, unjustified attacks against military forces can be war crimes, too) – those people should be tried as war criminals, with all due process rights afforded by our laws, and either convicted or acquitted. If we were able to afford Nazi war criminals due process, there’s no reason we can’t afford al Qaeda terrorists the same.
So that’s where the problem lies – the problem that the Pres. Obama’s new Executive Order won’t address. We have an obligation to determine which detainees are subject to prosecution for war crimes and which detainees are mere combatants being held not because they violated the laws of warfare but because they were simply captured in battle. As to the former, the solution is simple: Put them on trial. As to the latter, the decision has to be made whether it really makes sense to hold them until the war is over or to let them go now.
The proposed Executive Order, apparently, will require a periodic review of the detainees’ status, but that, it seems to me, is just pushing the problem down the road, and the review, even if it’s “adversarial” in nature, doesn’t provide the kind of due process rights detainees are entitled to, as the Supreme Court has recognized in a long line of cases from Rasul v. Bush, 542 U.S. 466 (2004), to Hamdan v. Rumsfeld, 548 U.S. 557 (2006), to Boumediene v. Bush, 553 U.S. 723 (2008). Some review is, of course, better than none; but it’s no substitute for what the law requires. If these folks are guilty of crimes, try them. If not, why are we still holding them?
So, there you go. Pres. Obama is wrong to continue the Bush policy of indefinite detention of Guantánamo detainees, and the Executive Order we’re about to see will exacerbate, not solve, that problem. I disagree – vehemently, even – with what the President’s doing here.
But I keep looking over my shoulder, and I don’t see a knife sticking out of my back. I see a real difference of opinion, and an important one at that, but I’m not exactly wracked with despair because I happen to think the President is wrong this time.
See, wasn’t that awesome?
© 2010 David P. von Ebers. All rights reserved.