The NYT Room for Debate blog has a short set of posts from a nicely balanced group on the question of moving detainees from Guantanamo to Illinois.
The Obama administration announced on Tuesday its decision to transfer terrorism suspects held at Guantánamo Bay to an empty state prison in Illinois. The move would help fulfill President Obama’s campaign promise to close the Guantánamo detention center, which has drawn international criticism since it received its first prisoners nearly eight years ago. The decision is also welcomed by some Illinois leaders as an economic boon for a job-challenged part of that state.
What does this move accomplish? Will a change of venue cure the legal issues surrounding detentions at Guantánamo? Or is this a symbolic gesture that will make no difference politically or legally in resolving the fate of the detainees?
David Cole, Andrew McCarthy, Dan Schnur, Diane Marie Amann, Kenneth Anderson. (Perhaps some more voices to come.)
Abdul Abulbul Amir says:
Politically this is a bone thrown to the left wing base of the Dem party.
That’s all folks!
December 16, 2009, 9:50 amMartyA says:
I believe it is wrong to view the move from Gitmo to Illinois as a legal, criminal or terrorist issue. Rather, my bet is that an investigation, perhaps with the same intensity of that associated with Palin’s wardrobe, would reveal that the purchase by the Bureau of Prisons profits a well known Illinois politician, Obama or his wife, or a close friend or advisor of a well known government official. This is Illinois, after all. The Gitmo folks are going to Illinois because Illinois submitted the “best” bid. It’s like the Olympics or the BCS.
December 16, 2009, 9:57 amHoward Gilbert says:
It is characteristic of the muddled nature of this move that the NYT does not seem to know what these detainees are. To call them “terrorism suspects” implies that they are or should be in the criminal justice system. In the referenced article, however, the paper says correctly that they will be held under the “laws of war”, which is an entirely different matter.
The detainees are enemy combatants. It would be a lot simpler if the government called them “prisoners of war” or something that everyone understands. An “enemy combatant” is a member or some regular armed unit engaged in an armed conflict with the US. When captured, and enemy combatant becomes a prisoner of war, but normally the term “enemy combatant” is used to describe the enemy we are fighting (Taliban forces in Afghanistan today) and not the ones we have already captured.
A very small number of the detainees are terrorism suspects in the sense that they actually participated in what the government claims to be an act of terrorism. The rest were mostly soldiers engaged in combat in and around Afghanistan. The most famous names like Hamdi and Rasul whose cases went to the Supreme Court were never accused of any participation in terrorism. Some would certainly be willing to become terrorists if given a chance, but they are detained as regular or irregular soldiers who simply fought against the forces of the US or our allies.
Unless there are or will be criminal charges filed against a detainee for some terrorist action, he is an enemy combatant or prisoner of war and not a “terrorism suspect”.
December 16, 2009, 10:02 amMark Field says:
Typical wingnut idiocy. The leftwing is strongly opposed to the plan. See, e.g., here.
December 16, 2009, 10:31 amweatherman says:
For the detainees, the downside is that any outdoor yard time is in often-snowy Illinois rather than sunny Cuba. Everything else about their living conditions can be modified apart from geography.
If the decision was made partly for “jobs in Illinois!,” then it shows once again that we’re putting domestic political concerns above security. Great!
December 16, 2009, 10:43 amjosh says:
I wouldn’t say “the leftwing is strongly opposed to the plan” just because Glenn Greenwald is. Actually, I think more on the left favor it because there is an empty prison in a dying town in Illinois, and the federal government has proven more than able to house such terrorists as Timothy McVeigh, Ted Kazinski, Richard Reid, Eric Rudolph, Zacarias Moussaoi, etc. The right is against it because, well, that seems to be the political strategy of the right at this time.
The fact is, 23 hours of lockdown is not a holiday, and no one is going to escape. To say a supermax in the boondocks of Illinois will place the country at greater risk is to utterly misunderstand the risk itself.
Did the fact that Obama, Emanual and Durbin are from Illinois play a role in Illinois getting the contract (potentially)? Can’t say, but probably likely. If that is the very worst of federal government boondoggle in an era of vast pork spending, and in light of the real tragedy of Guantanimo, I can live with it.
December 16, 2009, 11:04 amPubliusFL says:
I think it is you who are misunderstanding the risk that they’re alleging. It’s not a risk that the detainees will escape, it’s that placing them on U.S. soil increases the chance that some U.S. judge will order them released. And if they’re to be released, and no other country is willing to take them, and they’re already in the U.S., that increases the chance that the U.S. is where they will stay.
December 16, 2009, 11:19 amwm13 says:
The “left wing” covers a lot of room, stretching as it does all the way from the median voter to Mark Field and Glenn Greenwald (and even beyond). In that broad “left wing,” there are many who have objected to Gitmo per se, and will be pleased by the transfer of prisoners to Illinois.
Now, this pleasure may be ill-considered; it may be the product of no thought beyond a vague feeling of “anything different from what Bushitler did is good”; but it certainly exists. And there are certainly some (in, say, the Lynne Stewart area of the political spectrum) who believe that it will be easier to obtain, legally or extra-legally, the release of prisoners from a facility in Illinois than from one in Cuba. They are part of the “left wing” and their feelings and votes count just like anyone else’s.
December 16, 2009, 12:00 pmMark Buehner says:
Question for anyone that supports treating terrorism strictly under criminal law- lets posit that we can’t charge them with any crime at all. What happens to them?
December 16, 2009, 12:06 pmMark Field says:
The original claim was that this decision is a “bone thrown to the left”. Since the ACLU opposes it, as does Greenwald, I can only conclude that Obama is seriously misinformed about who makes up the “left” on this issue. Or that it’s not a “bone to the left”, but an independent decision based on other reasons.
The follow up posts would be more persuasive if they cited any actual person instead of speculating about the motives or beliefs of others (especially “others” on the opposite side of the political spectrum).
December 16, 2009, 12:09 pmMark Field says:
Under that approach, they’d be released.
There’s another alternative, of course: to treat them as combatants (assuming they were), but give them the rights they’re entitled to under the GC.
December 16, 2009, 12:16 pmDerHahn says:
There’s another alternative, of course: to treat them as combatants (assuming they were), but give them the rights they’re entitled to under the GC.
Which means no trials of any kind (You just called them
combatants so there is no need to adjuacate that status), and they’ll be locked in Gitmo or Thompson IL, or Timbuktu until AQ surrenders. Exactly the way WWII German PWs were treated.
Are you ok with that? Because your (and many other’s) previous comments along these lines seem to claim we should treat them according to the GC when that suits your purposes, and at other times claim we should ignore the GC and treat them according some bastardized criminal code.
December 16, 2009, 12:26 pmSteve says:
It’s just amazing to me that Robert Gates, Mike Mullen, et al. all support this plan which has no upside and will put all these American lives needlessly at risk. Maybe they’re secretly on the ACLU payroll.
December 16, 2009, 12:31 pmJust Dropping By says:
Question for anyone that supports treating terrorism strictly under criminal law– lets posit that we can’t charge them with any crime at all. What happens to them?
Deport them to their home country or extradite them to countries where they do face criminal charges. (It’s my understanding that virtually everyone left in Guantanamo is actually or potentially subject to criminal charges in other countries.) For those that can’t be removed in that manner for whatever reason, release them according to the same procedures used for other foreign nationals the U.S. is unable to deport and just have the FBI/DHS/etc. keep tabs on them and question them or their associates if it appears they are beginning to engage in suspicious activity. (That’s perfectly constitutional, mind you — no warrant is required to follow someone around in public, interview their associates, knock on their door and ask if they are willing to speak with you, etc. — the FBI followed Steven Hatfill around for several years.) These people upon release pose no more threat than any other freshly released criminal and, in fact, likely pose less of a threat since they’re foreign nationals, their past criminal associates basically all live overseas, and their identities are perfectly known to law enforcement.
December 16, 2009, 12:36 pmMatthew Bilinsky says:
There are obviously more aspects to this issue than I am addressing here, but NO. THIS MOVE IS NOT PUTTING ANY AMERICAN LIVES AT RISK. AT ALL.
They will be held in super-max prisons which house murderers, rapists, and just about every pre-9/11 terrorist ever tried and convicted. So unless they magically turn into super-ninjas or something and break out of a super-max prison, they will not pose a single iota of danger to any living, breathing American.
So unless you genuinely believe in the “super ninja” theory or some other form of cartoonish Dr. Evil-like villainy, please stop your cynical and disingenuous fear mongering. Thanks.
December 16, 2009, 1:00 pmLarryA says:
It isn’t the terrorists inside I’m concerned about, it’s all the other AQ terrorists in the world that might want to target attacks on people outside the secure area. If my family lived in Thompson, I’d be moving.
December 16, 2009, 1:18 pmMark Buehner says:
Rendition? Is sending them back to be tortured in SA or Pakistan morally (or legally) superior to whatever we intend to do with them?
You think that is politically viable? What if their first suspicious activity is to carry a rifle into a mall?
Do you really believe that load of nonsense? The man who masterminded 911 is no more threat than a guy that did 3 years for b&e? Would he be a threat if he returned to Afghanistan (or some other lawless nation)? What if we catch him again on some other battlefield? Rinse and repeat?
December 16, 2009, 1:21 pmMark Field says:
It’s always been my view that it would be ok to apply the GC to the Taliban in Afghanistan. That was the government, we effectively declared war against them, and the laws of war apply there.
What I don’t support is claiming that there’s a war on “terror”, which there never has been and never can be. If we think someone’s a terrorist (such as Al Qaeda), the correct procedure is to charge them with a crime. This is true even if they also served as soldiers of the Taliban (the GC recognizes that crimes committed by soldiers can be prosecuted).
The Bush Administration failed to abide by the law either way. It wouldn’t treat the GC as applicable even when they could have been, and it refused to use criminal charges when those were appropriate. That was a formula for lawless government. To the extent the Obama Administration follows those policies, I strongly oppose them.
December 16, 2009, 1:39 pmBen P says:
Isn’t that kind of the key issue? – Well one of two key issues maybe.
I seriously doubt AQ will surrender, and it’s about as likely that there will ever be any sort of concrete “end” to a war on terror. If it stops it will quietly fade into the background. (until the next group of Jihadis gets lucky.) It’s just not the same situation as a war against a nation state that will end at some point.
If the war against AQ never ends those Prisoners of War become indefinite, and that causes some problems, so we have to have some sort of framework for deciding when and how they might get out and “who” gets out.
I’d venture that the other half of this problem is that the GC is premised on enemy soldiers being “guilty” of nothing more than being citizens of the wrong country and serving in that country’s armed forces. It allows a country to presume capitives will perhaps still support their country during a war, but more or less presumes that once the war ends, those capitives can return to their home country and go back to being normal citizens.
When the “other country” is nothing more than a group of people sharing a common ideology, at the very least we have a question as to whether we can make those same assumptions about “released” prisoners just going back to their lives.
December 16, 2009, 1:48 pmHm says:
Put them in real prison, I’d like to see these al qaeda mutts go up against the AB or Latin Kings.
December 16, 2009, 1:57 pmMatthew Bilinsky says:
The terrorist supporters are also NOT a legitimate threat to break them out. If there were bands of Islamic fundamentalists freely and covertly roaming around America who had the guts, ability, and wherewithal to conduct major terrorist operations and did not mind dying for their cause (which is what they would do if they tried to break these guys out of super-max prisons, DIE), then why have they not simply walked into any of the thousands highly populated shopping malls in America and sprayed machine gun fire and tossed grenades? Or done that to any of the other highly visible and destructive targets in America if they were so capable?
I’m sorry, I refuse to give these people that much credit and to give our traditional security apparatus so little. The (ex) Guantanamo detainees are NOT escaping. And anyone who tries to free them from these super-max prisons is gonna get turned into swiss fucking cheese by the highly trained and skilled guards and soldiers at the prisons. THE END.
December 16, 2009, 2:08 pmMichelle Dulak Thomson says:
As a resident of CA, where the prisons are so full that prisoners are being (as I understand it) outsourced to other states, I confess that I’m so boggled by the idea of an “empty” Illinois prison that I find it difficult to move on to the point really under discussion.
The original objection to Guantánamo was that the Bush Administration used the fact that detainees were not actually on US soil to circumscribe their legal rights, yes? So the objection could be met fairly by the Obama Administration’s granting the detainees whatever legal protections they would have were they on US soil, whether they were moved or not.
But, so far as I can tell, no one appears to be claiming that the detainees will be treated any differently in Illinois than they have been in Cuba, apart from (as someone said upthread) having to take exercise in nastier weather. So what is the actual point of the move? — apart, I mean, from fulfilling the letter of a campaign promise? Is any detainee actually better off here? Is any right formerly being denied being restored?
Those are actual, not rhetorical, questions, because I haven’t followed this as closely as I should have.
December 16, 2009, 2:13 pmSteve says:
So what is the actual point of the move? — apart, I mean, from fulfilling the letter of a campaign promise? Is any detainee actually better off here? Is any right formerly being denied being restored?
The point of the move is that closing Guantanamo will remove a blot on our reputation and one of al-Qaeda’s primary recruiting tools. It’s not intended to affect the rights of the detainees.
December 16, 2009, 3:02 pmMark Buehner says:
So like he said, its purely cosmetic.
I for one have a much bigger problem with show trials in civilian courts than with anything that happened with prisoners of war at Guantanamo.
December 16, 2009, 3:23 pmMichelle Dulak Thomson says:
Steve,
The point of the move is that closing Guantanamo will remove a blot on our reputation and one of al-Qaeda’s primary recruiting tools. It’s not intended to affect the rights of the detainees.
So the “blot on our reputation” was . . . what, exactly, if it wasn’t an infringement of the rights of the detainees? The weather? (Or was this an “al-Qaeda recruiting tool” in the “Win a free vacation in Cuba!” sense? If so, I can see why a Supermax-ish facility in rural Illinois would be less enticing.)
December 16, 2009, 3:41 pmMark Field says:
The argument about location was merely a procedural issue ancillary to the main one, i.e., what substantive rights do these captives have? In any case, the Supremes have already decided to treat Guantanamo as functionally equivalent to US soil; Obama doesn’t need the move for that reason.
As for why make the move under those circumstances, I think Steve’s answer is probably right. Guantanamo had become a huge foreign policy and legal nightmare for any administration. Closing it may eliminate the bad publicity (at least until a new facility develops a similar reputation). It simplifies the legal issues by removing the distraction of the “spot” on which the detainees are held. And, of course, the announcement of civil trials for some allows the Obama Administration to claim adherence to the rule of law (at least to that extent).
December 16, 2009, 3:44 pmHoward Gilbert says:
A soldier in the regular army of a Geneva signatory is entitled to protection under the Third Geneva Convention. However, in order to get it automatically he has to abide by the other rules (wearing a uniform, carrying a military ID card like the US “dog tags”, and giving name rank and serial number when captured). Otherwise, he must claim protection under the GC and if there is doubt, the US must hold an “Article 5 tribunal” to determine if he is entitled. So far, no detainee has claimed protection under the GC, even when invited to do so. [Fundamentalist Islamists believe that Shari'a is the only valid law and refuse to recognize any "law of man" such as the Geneva Conventions.] So while I believe that enemy detainees captured in 2001-2002 in Afghanistan and just across the border in Pakistan could be entitled to GC protection, the US commits no error by requiring them to ask for it.
A lawful combatant may not hide his combatant status. Thus even a regular soldier would have lost his right to Geneva protection if, during a CSRT, he denied being a combatant.
At some point, the enemy was no longer the government in control of a Geneva signatory and became what the ICRC would describe as the regular armed units of a non-state party to a non-international armed conflict engaged in continuous combat function. This describes the Arab and Pashtun irregular forces engaged in daily operations against NATO forces in Afghanistan and those training for such combat in camps in Pakistan. They are also combatants subject to military attack (Predator drones for example) and if captured they may be detained by the military as prisoners of war for the duration of hostilities. However, under international law they are not entitled to protection from the Third Geneva Convention and, lacking combatant privilege, they may be criminally prosecuted for engaging in combat.
The key phrase here is “continuous combat function”. While that certainly describes guerrilla warfare, such as is occurring in Afghanistan, it cannot be stretched to include any actual terrorist operations anywhere in the world. Real terrorism is not a combat function. Real terrorists (distinguished from enemy irregulars engaged in actual military operations that people like to call “terrorists”) are criminals and may not be detained as combatants by the military, unless the act of terrorism is an actual military mission assigned to them by their commanding officer in a regular national army. Arguably this includes the USS Cole attack, but there aren’t many other examples.
Most detainees at Guantanamo were captured in 2001-2002. Some of them might be entitled to Geneva status as POWs if they ask for it. They can all be held as common law prisoners of war if they engaged in continuous combat function on behalf of the enemy. Prisoners captured even today in Afghanistan may also be held under these rules.
However, the Thomson Correctional Center would not meet the standards required to house POWs protected by the Third Geneva Convention. This type of prison situtation is “close confinement” and the Convention allows it only for POWs who have been tried and found guilty of violations of international law (“war crimes”) and then only during their sentence. Trial is permitted for those who are not simply enemy combatants but who have also committed internationally recognized crimes. Close confinement during military detention is then the normal punishment. Anyone who is entitled to Geneva protection but who has not been convicted of a war crime should be detained in a normal POW camp (essentially a regular army barracks surrounded by fences, wall, barbed wire, where POWs can freely mix but cannot get out).
The most interesting problem occurs when Obama transfers someone to Thomson who has never claimed that he is not a combatant, and he then decides to demand his Geneva protection. If the Article 5 tribunal finds a basis to classify him as a regular POW, the administration has no place to put him and would be prohibited from keeping him in Thomson.
December 16, 2009, 3:55 pmMark Buehner says:
The reality is that most of these guys (Kalid Mohammed certainly) are never going to see the light of day for the forseeable future no matter what the context. Politically, that is a given. That being the case, by bringing them to US soil we now require ourselves to do whatever is necessary legally to keep them in. Aside from the show trial aspect of this, it also is a recipe for some really bad precedent to get put down specifically to keep these guys locked up.
I can’t speak to Howard’s reading of the GCs, but what i do know is no matter what the correct legal answer is, no case will be decided in such a way that these guys walk. What the means in the nuts and bolts is frightening. And even if some judicial path looked to set them free (which they well could if they find the idea of twisting the law in such knots to keep them in prison unwholesome) the executive will swing back in and lock them up on some other pretext, potentially spurring a constitutional crisis that the courts can’t win.
In other words, the price to our justice system for a little good international PR might be a lot higher than we think.
December 16, 2009, 4:03 pmArthurKirkland says:
Why do people continue to refer to Guantanamo prisoners as “unlawful combatants” and “terrorists?”
Many, it appears, were not apprehended by American soldiers on battlefields but instead handed over by bounty-hunters, grudge-enforcers, outside the range of any combat — in exchange for payments.
Few have been tried in any fashion, let alone convicted. Many prisoners have been released, without explanation, over the course of years (indicating inappropriate detention or inappropriate release).
Against that background, the repeated references to “unlawful combatants” and “terrorists” appear to derive from ignorance — at best.
December 16, 2009, 4:39 pmMark Buehner says:
What would you like to call them?
And I may be wrong here but haven’t all the detainees received a trial of some sort or are in the process? Or were rather- I believe the irony is that this little stunt short circuited military tribunals already in place.
December 16, 2009, 4:46 pmHoward Gilbert says:
It is not necessary for US soldiers to capture an enemy soldier, nor is there any requirement that they be near a battlefield at capture. They only have to be part of an enemy army or armed unit engaged in continuous combat. If you say they have not been tried or convicted, that is also true of every other POW captured in every other war that the US has ever fought. An enemy combatant is not a criminal, has committed no crime, is never tried. During WWII almost a half million enemy combatants were held in POW camps throughout the US and none of them were ever tried or convicted of anything. Through history, Prisoners of War were seldom detained through the entire conflict. When General Burgoyne surrendered to General Gates at Saratoga, his entire army was immediately released on condition that they march to Halifax, board ship, and leave North America. The entire force was immediately released and repatriated, yet nobody has suggested that they weren’t really part of the British Army or that Gates released them because he didn’t have enough evidence to prove that they were really British soldiers. So repatriating people who are determined to no longer pose a security threat in no way, by any logical or rational process, indicates that their original military detention was improper. Repatriation is the way POW detention ends, and the timing is up to the detaining power.
December 16, 2009, 5:06 pmMichelle Dulak Thomson says:
Mark Field,
As for why make the move under those circumstances, I think Steve’s answer is probably right. Guantanamo had become a huge foreign policy and legal nightmare for any administration. Closing it may eliminate the bad publicity (at least until a new facility develops a similar reputation).
Closing Guantánamo “may eliminate the bad publicity”? Possibly — for exceptionally silly audiences. So far as I can see, we are carefully preserving everything that was objectionable about Guantánamo, while elaborately changing the name, the venue, and the temperature.
If there are potential al-Qaeda recruits thick enough to be dissuaded from joining by the news that “Guantánamo is no more!”, they are the only people we might, conceivably, positively want on the other side.
It simplifies the legal issues by removing the distraction of the “spot” on which the detainees are held.
Well, OK, although you just got through telling me that the “spot” was held irrelevant by SCOTUS, so I imagine that anyone seriously involved in “the legal issues” left off being “distracted” some time ago.
And, of course, the announcement of civil trials for some allows the Obama Administration to claim adherence to the rule of law (at least to that extent).
Sure, but this has zero to do with closing Guantánamo, yes?
I repeat that I can’t see any point to this beyond its fulfilling a campaign promise. What made Guantánamo a “blot”? As I remember it, it was (1) stories of abuse of prisoners, Qu’rans flushed down toilets, &c.; and (2) the whole idea that by placing this center outside US sovereign territory, we could skirt some pesky requirements of US law.
Well, (1) is not going to be fixed by moving the thing to Illinois; abuses whether real or mythical are equally plausible in both places. And (2), which might have been an actual advance, publicity-wise, is rather badly undercut by the fact that everyone, including the Obama Administration, seems united in saying that detainees’ rights (if any) are not to be affected one iota.
December 16, 2009, 6:05 pmSarcastro says:
If there is one thing terrorists lack, it is a sense of motivation. And it is well known nothing motivates terrorists more than seeing their brother terrorists being moved around!
December 16, 2009, 6:08 pmMichelle Dulak Thomson says:
Sarcastro,
If there is one thing terrorists lack, it is a sense of motivation. And it is well known nothing motivates terrorists more than seeing their brother terrorists being moved around!
Absolutely right. Move the batch you’re reluctant to release from Guantánamo to Thomson, and clearly al-Qaeda will have lost its most valuable recruiting tool! It’s this subtle understanding of the terrorist mind that . . . oh, never mind.
December 16, 2009, 6:24 pmMark Field says:
I, like other critics of Obama on the left, pretty much agree with your last sentence here. That’s why the claim that the move was a “bone to the left” was so absurd.
Whether it has any political effect or not is a closer call. Logically speaking, you’re entirely right. But in real life people do confuse form over substance all the time; sometimes changing the name gives time to create new spin (see, e.g., Blackwater => Xe).
It was held irrelevant for purposes of habeas relief. I suppose it might have been relevant to some other issue I’m not aware of. The move eliminates such hypothetical arguments.
No, I think they’re related, not just for propaganda purposes, but in the eyes of the Administration. It shows (they say) a new way of handling the problem. Substantively, trying someone in federal court is contrary to the whole purpose of Gitmo (indefinite detention).
As for your final point, I agree in part. Unless there’s a substantive change in the treatment of the detainees, combined with a recognition of legal or GC rights, then it won’t matter in the long run. That’s what concerns me.
December 16, 2009, 7:59 pmPeterD says:
Obama and Holder know the constitution. Moving the detainees to Illinois, U.S. soil, that is, will mean that they will be afforded all the legal protections of the constitution. That is a good thing.
December 16, 2009, 10:06 pmHoward Gilbert says:
Allowing someone to enter the country through a normal visa grants them constitutional protection. However, when an enemy combatant enters the country in military custody he acquires no rights under the constitution relative to his military detention. If he is tried by a Military Commission, Court Martial, or by temporary transfer to civilian courts, then when he is released (after being acquitted or serving his sentence) then he reverts to being a prisoner of war and, when the conflict is over, is subject to repatriation.
The administration claims that if a detainee enters the US as a criminal defendant (in the custody of the civilian criminal justice system instead of the military) then when he has served his sentence or is acquitted, he reverts to the status of an alien subject to deportation.
While he is being tried for a crime, he is entitled to the same constitutional protection afforded a US citizen tried for the same crime. However, the legal reason for this varies. A civilian criminal defendant gets this protection directly from the Constitution. A prisoner of war, however, gets his rights from the Third Geneva Convention and the common laws of war, under which an enemy combatant brought to trial must be given the same rights that one of our soldiers would have if we tried him for the same offense. Since the rights are assigned just for the purpose of the trial, no constitutional rights attach when the trial is over.
Any prosecution for civilian crimes in civilian courts occurs under domestic law and the highest authority in domestic law is the Constitution. However, a real enemy combatant held by the military as a prisoner of war has essentially the same status as a member of an enemy military unit that has invaded the US. He remains a soldier in an enemy army subject to the lawful orders of enemy officers. He may be tried for simple offenses by a military court of his own army under the military law of the enemy country (within the POW camp). Relations between the US guards outside the camp and the POWs inside the camp are governed by international law.
So if a prisoner hits one of his own officers, he might be tried in the camp by other prisoners under enemy law. However, if he hits a US soldier, then he would be subject to military trial in a US military court and entitled to all the same rights a US soldier would be granted if he was being tried for striking a superior officer.
The point is, there can be only one law in control of every situation. Sometimes it is the enemy’s law, sometimes it is US law, and sometimes it is international law. However, since this means that there are generally three different sets of rules, no two sets of law can apply to the same situation except when explicitly delegated (as when international law allows trial under US law provided the detainee is given the same treatment as a US soldier).
When the POW is not being tried for anything, that is when he is just sitting in the camp, he is subject to foreign law and foreign command, so no part of US domestic law can apply, even the constitution. You cannot pick and choose, taking any part of US domestic law that is favorable and then hiding behind POW protection for anything that is unfavorable. We think of the Constitution as providing just protection, but the problem is that we cannot enforce our First Amendment Establishment Clause on top of a captured unit of an Islamic enemy army if their officers want to discipline one of their own soldiers on a matter of religious doctrine. There are currently no captured women, but if there were we could not enforce our view of equal protection on top of an enemy army’s rules that women are not equal.
Civilian criminal and civil rules apply to and protect the individual. A soldier, however, is a member of a military unit and does not have individual rights. The unit has rights (from the Geneva Convention) and then the highest ranking officer in the unit decides what orders to give his men. The most interesting point of conflict may occur in the trial of KSM and his associates. Viewed as civilian criminal defendants, they are individuals and lawyers representing the others may want to protect their clients from what they may regard as improper influence. However, arguably they are all members of an enemy military unit in which KSM is the superior officer. Under enemy military law, and under international law including the Geneva Convention, he has the right to assert rank and to control the behavior of the entire unit relative to our courts (the courts of his enemy). He may order one of his men to do something that a lawyer representing one of the others regards as not in his client’s best interest. At that point there is a conflict between due process and international law that nobody knows the answer to.
If the US decided to transfer the prisoners from Guantanamo to a real POW camp in Mississippi, just like the camps in WWII, then there would be no legal consequence to the move. However, transfer to a prison facility raises all sorts of questions. Is the detention still under the authority of the military, or has the DOJ taken over? How can you apply the usual laws of war when you are holding men in a prison that does not meet the requirements for a proper POW camp and prevents the men from forming a proper military unit? Even if we knew all the details of the transfer (which have probably not been worked out yet) it would still be impossible to predict any of the legal consequences of the transfer.
If you have an option about the answer, then you don’t fully understand the question.
December 16, 2009, 11:18 pmArthurKirkland says:
And how is that to be established in the case of someone delivered to American representatives, in exchange for payment, by local yahoos whose motivation might include score-settling, a coveted business, or simply profit?
The case for calling these prisoners “terrorists” or “unlawful combatants,” when neither point has been established after years of detention and plenty of opportunity for the government to make the case, resembles the case for invading Iraq. Flawed at conception, further weakened over time, discredited today.
December 17, 2009, 12:55 amHoward Gilbert says:
Since the government is not alleging a crime, it is not fair to say that they have not proven something that isn’t a crime by convicting someone who is not a criminal with some crime, any crime, they did not commit. Initially there was the CSRT, and now there are the Habeas cases in which the government presents evidence to prove that someone is really an enemy combatant. In then entire history of the US, no enemy combatant (prisoner of war) has ever been taken before a judge so that the judge could declare simply that he was an enemy soldier. No such proceeding exists. If you tried to do it, the judge would point out that this is a military matter and that under the Constitution the courts are prohibited from issuing an advisory opinion. Today you still cannot bring an enemy soldier into court before declaring him to be a prisoner of war, but after detaining him he has access to the courts through Habeas.
Until Boumediene, the decision about whether someone was an enemy combatant and whether he presented a threat was made exclusively within the Executive. You may not like that, but that was all the law provided. For 230 years the country has been willing to trust the military to make decisions about enemy prisoners of war, so no other arrangement was available. If you don’t give someone a forum in which to present evidence to prove his case, you cannot complain that he hasn’t proven it to your satisfaction.
Of course, the absence of a forum does not preclude the possibility that the government detained people who really were innocent bystanders. When a decision is made by the Executive, they will tend to make the safest choice and detain someone who may be an enemy combatant rather than take a chance on releasing someone who proves dangerous. You have to first realize that all the rules about criminal justice (is is better that 100 criminals go free than that one innocent man get convicted) do not blindly transfer to military matters. If every hijacker kills 200 civilians, then releasing 100 would be hijackers means that it is better for 20000 innocent people to die than for one innocent person to go to jail. There may be some rule here, but that is not it.
December 17, 2009, 8:30 amKevin P. says:
Your naivete is mindboggling. And people like you occupy positions of responsibility in our government.
December 17, 2009, 9:10 amThe Guantanamo to Illinois Move, at the NYT Room for Debate Blog | Liberal Whoppers says:
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December 19, 2009, 12:54 am