U.S. detentions of enemy combatants, some people say, are troublesome because they are potentially of indefinite duration. America held enemy prisoners during World War II and earlier wars, but at least there the wars were over in several years; the war on terror could go on indefinitely. Isn't that unfair to the detainees? Try them or let them go, people say. Note that this argument is independent of the conditions of confinement, or of the argument that some of the detainees may have been seized by mistake; people say this even about prisoners who are definitely al-Qaeda, Taliban, or Iraqi insurgents.
This argument, I think, is a mistake. Let me briefly explain why.
The purpose of detaining enemy combatants is prevention. An enemy soldier wants to kill our or our allies' soldiers (and often civilians). We normally stop that by killing him. But when he surrenders, we prefer not to kill him: Killing the enemy generally isn't our goal, but just the means to the end of protecting ourselves and our allies — and if we can serve that end by locking a captured enemy soldier up instead of killing him, we do that (and are required to do that by the laws of war).
The thing that makes this logic work, however, is our ability to keep the man locked up. When we release him, he can go right back to killing our soldiers. What's more, it seems quite likely that he will: If he tried to fight us once, why wouldn't he do that again? We release ordinary criminals after some time chiefly because we hope that the term in prison has deterred them from repeating their crimes. But someone who obviously isn't deterred by the risk of being killed (the high risk, when you're a small force fighting the U.S. military) isn't going to be deterred by the risk of repeat incarceration.
Thus, we have three options: (1) Kill them on the battlefield, and protect our and our allies' soldiers and civilians. (2) Lock them up until we feel confident that the war is pretty much over (which indeed could be decades), and protect our and our allies' soldiers and civilians. (3) Or in a fit of misguided mercy — misguided because it is mercy to the bad that ends up hurting the good — let them out and allow them to again kill our and our allies' soldiers and civilians. Option 3 strikes me as deeply unsound, and not required either by justice or by international law.
But why not try them, then, some people ask? Well, as to enemy soldiers who were fighting in uniform as part of a disciplined force, there's nothing to try them for: Fighting as a soldier who complies with the laws of war is not a crime. (If one weren't fighting in a war, one would surely be committing the crime of attempted murder, but being a soldier who fights according to the laws of war is actually a good defense against that charge, subject to various caveats.) They aren't being locked up to punish them for a crime; they are being locked up to prevent their engaging in lawful but deadly attacks on us.
Enemy terrorists, spies, saboteurs, and others who were fighting out of uniform, attacking civilians, or otherwise violating the law of wars could be tried for those violations, and imprisoned (perhaps for life) or executed. But we have no obligation to do so: Given that we can hold lawful enemy combatants until the end of the war (which indeed may take a long time), we can at least do the same for unlawful enemy combatants, which are in no better moral or legal position than the lawful combatants are.
Now there may sometimes be pragmatic reasons to release prisoners even before the end of the war. Prisoner exchanges are a classic example. Likewise, prisoners who are very sick or disabled might be released as a humanitarian measure — but the measure is humanitarian precisely because it seems unlikely to endanger our or our allies' soldiers or civilians. (There's little that's humanitarian in helping an enemy fighter in a way that jeopardizes our fighters or noncombatants.) Some prisoners may be turned over for trial by other countries for violation of those countries' laws, if we think such a turnover is politically valuable, and if we think the prisoners will indeed end up being locked up for long enough by those countries. One can imagine other reasons as well.
But as a matter of law and of morality, it's perfectly proper to keep an enemy soldier detained (again, I set aside the separate questions related to conditions of detention, and related to confirming that the person is indeed an enemy soldier) until he is no longer dangerous to us, even if that means he'll be locked up for the rest of his life. It's that; killing them on the battlefield; or letting them go so they can kill us.
Who says this?
This also highlights exactly the same error that I was trying to point out in the treason comments: we can't just say that a war is anything we want it to be. The "war on terror" is not a war, in the sense that we've understood the term "war" for centuries.
Your assertion that unlawful enemy combatants can be held forever just like lawful enemy combatants could be held ignores the point that there is no war in the sense that it's two nations fighting to be ended, sooner or later, by a treaty. "War on terror" is a complete misnomer! "Use of troops to enforce the laws against activity that is engaged in by terrorists" would be a more accurate phrase.
I thus submit to you that a "war" against illegal fighters who could be tried does not justify not trying them. If you justify failing to try these enemy combatants on the grounds that (a) they might pose a danger to our soldiers and (b) there's nothing to try them for, and then (b) goes away because there is something to try them for, your justification fails.
However, the problems of a false positive--an innocent person wrongly picked up in a dragnet, or one who might have hung around al Qaeda but was not really too dangerous--are that these people suffer the deprivation of indefinite detention. "Leaving this question aside for the moement" sort of defines away the problem. This matter is inextricably linked to the concerns that many have with indefinite detention.
Other reasons that nations have historically detained enemy combatants are to 1) trade them for our POWs held by the other side; 2) pressure the other side to end the conflict so they can get their boys back.
Obviously, neither rationale applies to the current conflict: i) the terrorists take prisoners only for the purpose of executing them in a barbaric fashion, and ii) they don't give a whit about their compatriots held at Quantanomo. They won't sue for peace to get their boys back; they don't mind a war of indefinite duration.
In other words, some of the traditional rationales have been made less relevant to the present conflict precisely because of the barbarity and inhumanity of the enemy. It would be perverse to adopt a more lenient policy to capture enemy combatants on the grounds that their own savagery has underined some (but not all) traditional purposes of there detention.
As to indefinite war, all wars of the past are only of a definitive length in retrospect. Lets say WWII fell into a stalemate, and dragged on inconclusively for 20 years: would we, 10 yrs. into it, be giving Hitler back the millions of Wehrmacht soldiers we held?
"In past ages, a war, almost by definition, was something that sooner or later came to an end, usually in unmistakable victory or defeat... The war is waged by each ruling group against its own subjects, and the object of the war is not to make or prevent conquests of territory, but to keep the structure of society intact. The very word 'war', therefore, has become misleading. It would probably be accurate to say that by becoming continuous war has ceased to exist." George Orwell, 1984.
I don't think I understand this statement. Simply because a group of persons fighting for an entity refuses to comply with the rules of war (uniform, command structure, hiding among civilians, etc), doesn't mean that a war will necessarily be "never-ending." And there's no reason to think this war will be. Further, Al-Qaeda declared war in 1998 -- those who signed up and have been captured know that and have chosen to participate anyway. I wouldn't shed too many tears on someone who gets detained for the rest of his life. If that were really a problem, then there should be pressure from the rank and file in al-Qaeda demanding that the leadership find a way to settle. Otherwise, they run the risk of ending up enjoying tropical breezes, reading the Koran, and enjoying three meals a day forever.
2. Much of the civil libertarian left and plain old left insists that the AQ detainees are EPW, a status which necessarily implicates the Geneva Conventions. Assuming, arguendo, that they are EPW, they *cannot* be tried for fighting against the U.S. It would be a violation of the Conventions and a war crime.
3. Minority leader Pelosi insisted last week that US and international law require the trials of the detainees at Gitmo, those held in Iraq and elsewhere.
4. Senator Leahy insisted on June 15th that “rendition” – returning a detainee to a country likely to torture him (pretty much any country of origin for a terrorist or jihadi involved in the WOT) was a patent violation of international and U.S. law.
Frankly, I’m at a loss for what to do with them. Were I still on active duty, if I found myself about to take prisoners I would probably not bother. It’s dangerous to try to capture people on the battlefield, and I wouldn’t risk my life to capture some joker (who was just shooting at me or trying to blow me up) who couldn’t be tried, repatriated, or interrogated. It’s not worth betting your life on a 50/50 situation, where your life and your buddies’ lives are the ante, and there’s no payout if you win the bet and take the guy alive, without dying yourself.
My cynical side says, “let’s give them an “R” visa and release them in Senator Leahy’s neighborhood.” If only.
I think this is wrong. Lawful combatants presumably have a state that will look out for their interests, that state may be destroyed by the war, but at that point the war is presumably over and they can be realesed. I think this is an important part of the equation that you are overlooking. Without such a state to advocate for them they must be able to advocate for themselves in some meainingful way (such as in a court of law). Denying them any such avenue is , I believe, morally wrong, if not criminal. Additionally the ability to extend this reasoning to include other "enemy combatants" who can be held indefinitely without charge should give us pause.
I would postulate the general principle that if a person, detained by the executive power, may be held indefinitely (or for any extended period of time) based solely upon the perogative of that power then that persons detainment is fundementally immoral and should be unlawful.
Bottom line, there are myriad technical or legalistic justifications for holding these people indefinitely--and I'm not defending them, I am sure they are scum--the question is: how does this benefit us from a wholistic or political sense?
Whatever safety we gain by locking up these few hundred men, who we cannot truely say are real threats to us as the facts of their detainment are not subject to hearing, I would argue is equaled or less than the safety we lose by presenting a negative political and social position on the world stage.
I think this is a rote argument, yet I will trot it out: to me, it is not an "american" thing to take people, combatants or not, and stick them on a desert island that is conveniently controlled by the government but is not territory of the US for years without a hearing on their alleged crimes or malfeasance -- this is what the turkish or algerians do to their prisoners and it backs up false claims of our abuses and political prisoners, etc...
If these people were trying to hurt us or were creating terror, we should have nothing to lose by subjecting them to our fine system of justice, which embodies the same principles that we are waging costly wars around the globe to promote.
My first qualm is that it is inaccurate to say the war on terror could go on indefinitely. Better to say it will go on indefinitely. A "war on terror" is like a "war on murder" or a "war on rape" or a "war on lethal weapons". Barring the development of a technology to forcibly re-wire the brains of the entire human race, there's no way that you can ever call any of those "wars" over. Therefore, you are talking about lifetime imprisonment for the captives in question. This should be acknowledged up front as part of the debate. Such an acknowledgment may or may not change your mind about the proper procedures in such a case.
As far as your example of "prisoners who are definitely al-Qaeda, Taliban, or Iraqi insurgents", I think you are conflating different scenarios.
Members of al-Qaeda are not soldiers. They are criminals, and should be tried as such. Remember that part of why we have trials is that without them, we really don't know that the accused is actually guilty of the crime in question. Serial killers, child rapists, and the like all get trials for that very reason, and so should accused terrorists.
Members of the Taliban are in a different situation. The Taliban was a despicable regime, but they never attacked the United States. We invaded them. We defeated them. We put a new government in power. Any given Taliban prisoner might quite likely have been a foot soldier attempting to defend against a foreigh invader (or possibly just surrendering to the foreign invader before getting blown up - after all, the ones who were captured probably weren't the ones who "weren't deterred by the risk of being killed") The Taliban members should repatriated to Afghanistan. If they committed atrocities against other Afghans during their time in the Taliban, then the current Afghan government can deal with that. Either way, they're likely not going to be a huge risk to the U.S.. (My only uncertainty in this is that we've let remnants of the Taliban escape and survive. There might need to be an assessment of individual prisoners to decide if they are ideologically committed to the Taliban to the extent where they might seek out those remnants and join forces with them. If so, those prisoners might need to be held until the Taliban remnants are totally defeated.)
The Iraqi insurgents should probably be held until the Iraqi insurgency is defeated (which could be a long while), or until the U.S. declares victory and bails out Vietnam-style (in which case the insurgents should be handed over to the Iraqi government as their problem.)
In any case, we need hearings/trial/tribunals/whatever to determine if a given captive really is al-Qaeda/Taliban/Insurgency or just some poor schmoe who got swept up for being in the wrong place at the wrong time. There's no way to justify holding innocent people for a life sentence with no hearing to determine if they are guilty of anything or a danger to anyone.
Rather, the concern is a simple question of boundaries. The policy that currently exists allows any person anywhere at any time to be swept up by the military and imprisoned forever. No amount of parsing of laws of "combatants" and "war" and "deterrance" can ever justify giving any government such power.
This is not a slippery-slope argument. Your argument does not need to be stretched or extrapolated; it says outright that the military may imprison forever (or indeed, by your argument, kill) anyone at any time. At most you demand a recitation of the mantra, "combatant" -- you yourself say that you mean this to apply as much to actual al Qaeda prisoners as to those swept up by mistake. Unless you can explain the just limits of this power, you are not going to convince anyone that it is a power exercised of right. Rather, it will continue to look like an instrument of tyrrany that merely hasn't been abused yet (at least, as far as we know).
Perhaps a different line of argument is in order: Explain to a reasonable person how he may go about his life so as to not be subject to arbitrary, perpetual military imprisonment. Then explain to us the limits that that answer implies on that power of imprisonment.
1. The US does not need to comply with the Geneva Convention because those detained at Gitmo were not "soldiers" in uniform as defined by the Geneva Convention.
2. There is nothing wrong with holding those at Gitmo indefinitely because we can't try them. They have done nothing wrong -- they are soldiers complying with the laws of war.
Ahh, isn't this a little bit inconsistent. Either, the people are Gitmo are unlawful combatants -- in which case they should be tried for this in some tribunal to determine if they are in fact who the government says they are. Or the people at Gitmo are legitimate soldiers, in which case we may be able to hold them indefinitely, BUT we have to comply with the Geneva Convention and we have to give them all that stuff that the GC says we have to give them.
Can't have it both ways Professor. . . . .
1) The 'war on terror' has no victory conditions. A country cannot defeat a tactic (terrorism), especially one that has been around for so long. A country could defeat a particular group of terrorists, but they would need to be defined first. Al-Qaeda is a convenient foil, but there is nothing that indicates that beating Al-Qaeda would end the 'war on terror.'
2) There are no lawful combatants. You've compared American treatment of unlawful combatants with the treatment of unlawful combatants. In the case of the 'war on terror,' I am not aware of any lawful combatants on the other side. While this may be the choice of the other side, it is disingenuous to speak about how well lawful combatants are treated in comparison to unlawful combatants when the former set is empty.
The trap into which you seem to have fallen is extending the analogy of a 'war' beyond its breaking point. To illustrate, it may be helpful to reread your original post substituting 'war on drugs' for 'war on terror.' How much sense would it make to incarcerate drug dealers indefinitely without trial as 'unlawful combatants'?
Yours truly,
Mr. X
...senses a flaw...
If prisoners of war were treated as common criminals the least punishment they could expect would be life in prison (and more likely death), for fomenting armed rebilion, terrorism, mass murder (or the intent to commit mass murder) etc. The only reason they are not subjected to the criminal justice system is because the two waring states have a mutual understanding of how to treat prisoners.
I would argue that it would be sound policy to allow any POW to elect to remove his state shield and face justice as if he had commited his acts of war as an individual rather then as an arm of a state. He would almost invariably be worse off but could so choose to get out of unlimited detention.
A terrorist organization lacks such an understanding with the US government and as such its agents are to be treated as individual actors, responsible for the crimes they commit. This treats them more seriously then a POW so I see no conflict in doing so. Indefinite detention would be even harsher still, and a violation of human rights. That a POW could be subject to the same is irrelevant as in a fundamental sense that is thier choice made for them by the express consent of their government for whom they chose to act.
They have had two administrative hearings by the time they land at Gitmo. Several who have been released, have returned to the battlefield where they have been killed or recaptured by our troops.
As for submitting them to Title III courts, do you really believe that: (1) our soldiers are equipped to observe the bill of rights with respect to non-citizens captured in battle; (2) that battle resembles in any way a policing context, where the cops have time to get warrants, kick down doors, give rights advisements before questioning; (3) that we can or should carry around a passel of defense attorneys to represent captured AQ (don't forget, 72 hours to get them a first appearance and an attorney, or they have to be released); (4) that any court is going to accept evidence seized and confessions heard as the result of a grenade attack, mortaring followed by infantry rush and a buttstroke to the groin; and (5) that the lives of our prosecution witnesses will be a tiny bit too evanescent to be relied upon to provide testimony. I can scarcely imagine a more chaotic process than to try to take a large number of captured AQ fighters from the battlefield, to full scale courts in the S.D. NY or E.D. VA.
I think that handing all Taliban prisoners (against whom we have no "extra" charges) over to the Afghan gov't would be a good idea. Let the Afghans figure out which Taliban they're comfortable releasing &which not; they have as much or more of a stake in this than we do.
Otherwise, I concur with Dismukes &Gowder. This is not a "war." I think we should follow Geneva for human rights' sake, to exemplify our moral standing, not necessarily because these folks qualify. Qaeda captives should be treated as criminals and tried in the U.S., with the same rights and safeguards we would use for a Mafia boss.
Unlike certain high officers of our gov't, I'm quite proud of the American justice system, and I think it can handle whatever challenges the prosecution of Qaeda members may pose to it. People who don't believe in America or its justice system should be looking for new countries in which to live, not erecting concentration camps on Guantanamo Bay.
With respect, this ain't your strongest work.
First, let us remember that every single prisoner at Gitmo has had a hearing before a military tribunal. They have had a trial, and yes it has been legally determined that they were on the battlefield and trying to kill Americans.
Of course, the position of the left here is that that "trial" was a kangaroo court sham and its findings of fact worthless, and that the only conceivably proper thing to do is revisit the entire question of the facts de novo in civilian court, where each Islamowhack would have his or her own platoon of taxpayer-funded attorneys to argue the fascinating questions of international habeas corpus and Geneva whatnot all the way up to the Supreme Court.
On contemplation of that potential circus I am almost tempted to see their position as little more than the narcissistic wish for a massive transfer of taxpayer wealth to, and enduring refocus of the public limelight on, the national cadre of defense trial attorneys, each of whom tends (naturally) to think he or she is on the front line of our defense against a descent into barbarism. Would that be questioning their patriotism or their sanity? But I digress.
Second, I personally believe in nations, and national constitutions, and explicit social contracts. These things have real weight and importance, because outside of them there is no such animal as "law," there are only personal and national interests. "Law" is merely the codified deference we give to others within our own social contract when we suspect them of acting contrary to our interests, id est because of this deference we do not simply kill the neighbor who allows his sheep to graze on our land, we take him to court.
But this is hardly "natural." It is rather a deliberate decision, which we and our neighbors consciously enter into, when we draft a constitution, form a government, and agree to accept the constraints of that "law" on our actions. Law is no more a law of nature, so to speak, than is communicating by speaking English.
People who have not accepted our social contract, indeed, who have explicitly rejected it, are not our legal equals. They are not citizens. They have no legal rights whatsoever. They can (and probably should) simply be killed out of hand whenever they pose or even seem to pose any kind of nuisance whatsoever, and it would be up to they to establish (in order to avoid such a fate) that they do not pose any threat.
That we do not proceed this way is merely an act possibly of grace or charity but more probably an egoistical conflation of The American Way with the natural condition of the Universe, which we may or may not regret in the long run.
Hence while I find Professor Volokh's intricate justification of our actions at Guantanamo Bay interesting, I also find them unnecessary. With people who have forsworn our social contract we simply do what serves our interests, and that is that. The rest is so much verbal onanism.
2. This is not like a war on "rape." Whatever it is called, the WoT involves actual military operations, battlefields, etc. Nor is this a war on a "tactic," any more than the Cold War was a war against an economic philosophy. It's a war on Islamic fundamentalists. Bush is just too savvy to say that, so that it doesn't sound like a war on Islam.
3. RWS and von are correct that not everyone who has been captured may be guilty. But I think that misses the point, which is that the standards in war are different than the standards in criminal situations. Not everyone who has been killed on the other side is an enemy soldier, either -- but we recognize that as a sad but inevitable side effect of war. Any people in Gitmo who may be innocent are victims of the war -- but surely less than those civilian casualties.
The world isn't a perfect place; our choice is not between the current situation or treating each person exactly as his individual circumstances warrant. If it were, of course we should choose the latter.
Moreover, the concern about keeping people locked up forever -- because this war theoretically won't end -- doesn't merely apply to non-EPWs, does it? So are people suggesting that _everyone_ at Gitmo should be let out, because the war won't end?
It's not any either/or situation. It is one or both.
Also, as to the issue of this being a "neverending" war, it seems to me that this is entirely in the terrorists' hands: if they want to end the war, they can surrender. If they don't surrender, too bad for their fighters, who are not lawfully entitled to be freed.
What is the authority for this statement? Are the tribunals subject to review? What law governs these hearings? If you can't answer these questions, you cannot pretend that a true legal determination of their status or guilt has occurred.
Why have any criminal trials then? Just gives the crazy criminals our tax dollars to argue inane legal theories in court. We should be more like China in this regard I suppose, for the sake of efficiency.
Massive transfer of wealth? We're talking about a few hundred inmates--Chicago probably processes more than that on a Monday morning.
Last time I checked the protections of the Constitution were inalienable and self-evident, not subject to the benevolence of an unwritten "social contract"
True--law is a social construct, but one at the core of our society.
How can they establish their innocence without a fair hearing? Are we to blindly trust the military that they will make sure no innocent person is detained--checks and balances?
Sure we don't owe foreigners protections, but what about when we bring them 5000 miles from their homeland--to territory 90 miles from our own, on land our army controls--does this not require us to be cautious and fairminded in our actions?
Something leads me to believe we will regret more our knee-jerk reactions that you appear to condone (ie internment, etc.) than a desire to uphold the very principles we have our soldiers dying for abroad
Sure. Why have elections or written laws either. Let's just do what we want to those we don't like.
Huh?!?! Is your exclusive source of news the Corner and PowerLine? I don't think that every single prisoner has had a trial. Give me a break. This is the problem with arguing over some of these issues, some people seem to be living in an alternate reality.
It is an either/or. Either we need to hold them and not try them because we have no legitimate charge to bring against them. Or we can try them because they are unlawful combatants. It seems pretty obvious that Professor Volokh is simply taking a position on these people's status in a manner that will fit the result he wants. He does not want the Geneva Convention to apply so for those purposes he will call them unlawful combatants. He does not want to follow the obvious proposition that we should either try them or let them go so he states that there is nothing to try them for because they are legal soldiers. What about this are you not following?
This is close to the nub of one of the arguments involved here. The Declaration of Independence says " We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
...but if foreigners are denied these rights then they are not part of the set of "all men" and the truths are obviously not self-evident.
I can think of at least two definitions:
1. An unlawful combatant is someone who is not part of a regular army or organized militia, i.e., the army or militia of a nation-state, who takes action intending to harm US soldiers.
2. An unlawful combatant is someone who is not a part of a regular army or organized militia, but who is acting as a part of a group or organization, who takes action intending to harm US soldiers.
Does anyone know which one is right?
It would seem to me that indefinitely detaining the first type of combatant poses "Uncle Bob" problems, by which I mean this: my "Uncle Bob", faced with foreign troops entering his vicinity, would not hestitate to take whatever action he could to harm them, impede their progress, whatever. Does that mean he should be locked up until the end of the "war against terror," or until combat ceases around his home, or what?
In fact, all detainees must pass through certain layers of review before they are incarcerated. Please allow me to roughly explain the process through the use of an example.
A company of Marines captures "a combatant" on the battlefield. This could be the guy who was given up by an informant or who was actually caught burying an IED or firing on coalition troops. So the combatant is reviewed by Bn intelligence officer to determine if he is a viable intelligence asset or a true blue combatant who warrants detention. The determination is reviewed by the Bn Commander and if he is an intel asset or warrants further detention, he is sent up the chain of command to either Regiment or Division HQ's for further review. They in turn review the status of the combatant to determine if they are any sort of intel value or a high level combatant that we don't want on the battlefield. Once that further determination is made, they are once again sent up the chain of command to the combatant commander, GEN Abizaid and his staff to determine whether or not this combatant warrants being sent to Gitmo for further incarceration. And then once at Gitmo, they are again reviewed to determine their status. Initially, they did not receive a Gitmo Review because of the nature of the War on Terror and the fact that there weren't any set procedures in dealing with these types of combatants. Remember, the Geneva Conventions state that illegal combants are allowed to be shot. So once the procedures were set in place, they were reviewed by Gitmo authorities. As you know, several detainees were released. Unfortunately, some of them returned only to fight against the coalition again.
There were several layers of review provided for the detainees to ensure that the US is only holding the hardcore criminals who rated being sent to Gitmo. Remember, there have been several thousand combatants detained throughout the war, but there have been several thousand released as well. Do people actually think that we have the manpower and infrastructure to hold these combants forever if we wanted too? So they determine who the high prority combatants are and then those are the ones who are sitting out the war in Gitmo.
Do not think that we just capture and detain whomever we please. The American fighting men and women deserve a little more respect and consideration than that. The determination is made at the appropriate level and if it doesn't meet the necessary threshold, that combatant is released.
Anonymous Reader
You are setting up a completely false dilemma. Obviously, you have not read Volokh's post with the intention of giving due credit to his line of argumentation. You are picking and pulling parts out to set up a false representation of his arguments. Try taking your own advice that you gave to AS.
However, in the spirit of online camaraderie I will help you out.
Volokh says, "Thus, we have three options: (1) Kill them on the battlefield, and protect our and our allies' soldiers and civilians. (2) Lock them up until we feel confident that the war is pretty much over (which indeed could be decades), and protect our and our allies' soldiers and civilians. (3) Or in a fit of misguided mercy — misguided because it is mercy to the bad that ends up hurting the good — let them out and allow them to again kill our and our allies' soldiers and civilians."
Those and those alone are the options we realistically face in dealing with the Al-Qaeda/enemy comatants.
You say, "It is an either/or. Either we need to hold them and not try them because we have no legitimate charge to bring against them. Or we can try them because they are unlawful combatants."
This is your false dilemma. It isn't either/or. Volokh is arguing that the unlawful enemy combatants aren't legally entitled to facing official charges of some kind in our courts. We hold them without trial because we are legally entitled to do so.
All that has to be determined for us to do so, is a determination that they are unlawful enemy combatants. The power to do so is in the military chain of command with the President able to make final determinations (as head of the military). However, for pragmatic reasons, that responsibility is delegated to lower levels that are closer to the battlefield. We are under no obligation to make such determinations dependent upon outside (of the military) judicial review.
You seem to get hung up on as well on Volokh speculation about how to try them if they were lawful combatants (because many argue that we should to afford them the greater legal protections). Volokh shows that using that standard is ridiculous because if they were legal combatants (POWS) then you couldn't try them for merely defending their country etc...
So, those who argue for giving them such protections are being foolhardy. Under such conditions (POW) status, no such trials could be conducted.
Its a roundabout explanation for why no trials have to occur (outside of the military tribunals) to determine if the individual is a unlawful combatant or not and further matters. If the individual was a lawful combatant, there is no place for a trial. If they are an unlawful combatant, there is no reason once again as we are not legally obligated to.
As such, the question whether or not to have trials is irrelevant and moot. As such, the only question remains is how long to hold them. That is determined by those in charge.
Consequently, we hold them indefinetely because it is in our national security interest to do so (as determined by those in command, not by any of you armchair generals). Granted, it is open to debate and should be. But, that is an entirely different question.
Needless to say, I think it is better to err on the side of holding them longer than shorter. :side note: it is important to get out of this affliction that many of you have in equating these unlawful enemy combatants with common criminals. We don't (and rightly so) seek to make better citizens of these terrorists as we do criminals. The sole purpose is to prevent them from harming Americans. So, until we are absolutely sure that they won't, there aren't very many good reasons for releasing them earlier rather than later.
Volokh said that, as to lawful combatants, we don't try them because there is nothing to try them for. And as to UNlawful combatants, they should not be in a BETTER position than lawful combatants - i.e., entitled to a trial -- as a result of their breaking the laws of war. (Instead, unlawful combatants are in a worse position that lawful combatants, because they are subject to the same detention as lawful combatants AND ALSO subject to trial for their unlawful condut -- as it should be, given the premise that we treat lawful combatants better because they have adhered to the law of war.)
Probably not, but I meant to confine this to Qaeda prisoners. I don't believe we have 100's of Qaeda prisoners, though I could be mistaken.
Trial by jury can, I think, be waived; let the defendants decide whether to face a jury or not. As for David's other points, I think they again conflate Taliban and Qaeda. Calling soldiers to testify re: Qaeda prisoners, if needed, doesn't strike me as outrageous.
As Dismukes &Gowder pointed out, the Taliban were enemies after they continued to shelter bin Laden, but that didn't make them criminals.
Regret btw that the tone here, which was quite respectful, has dropped so sharply.
Come, come now. You can't really be making this argument, but I will humor you.
To show how the setup of your argument is undeniably false, let's just apply it to the many situations we find ourselves facing.
If these "foreigners" are being denied the benefits of these unalienable rights in the manner in which you suggest, then so would anyone that we have killed/captured/wounded anywhere in the world under any conditions. Under your line of argument, there is nothing that one can do to abrogate themselves of their rights. But, as we all know, such rights fall under certain restrictions when we act or behave in certain ways, i.e. kill your neighbor, declare war on the US, etc... The situations are endless.
Your argument is laughable on its face. It fails the prima facie test if anything.
Yes. The American military has a justice system which has been around as long as the Federal courts. It has made the business of war and soldiering its entire focus for that entire time. Most observers think that it, along with the British military justice system (and those of their former colonies) are the best in the world. There are more expert legal minds as regards the laws of war in the American military justice system than anywhere else in the world. Pretending that the American criminal justice system would give superior results seems analgous, to me, as claiming the British courts would do a better job enforcing American law. No one is suggesting that we retry American civilian criminals under the American military justice system, are they?
Question authority, including the authority of your own arguments. It will increase their quality.
Yours,
Wince
Arguments over whether the poorly-named War on Terror is a "real" war (like World War I) rather than a metaphorical war (like the War on Drugs) do nothing to advance our understanding of the legal and ethical requirements that shape the way in which our government prosecutes the war. The current (shall we say) War on Islamist International Terrorist Groups is certainly not like World War I. But neither is it like the War on Drugs. Let's look at a few examples:
— Jose Padilla exits an airplane in New York. Assume we have completely reliable intelligence that he is, in fact, a jihadi on his way back home with instructions to acquire the materials to make a dirty bomb. He is an agent of al-Qaeda, an international organization that does not control any discrete geographic territory but that operates with the tacit or express support of the Taliban, the de facto government of Afghanistan. Al-Qaeda has declared war on the United States, Israel, and their supporters. Padilla sees himself as a soldier operating under Al-Qaeda's command. His intended battlefield? The City of New York. Q. Are U.S. Government agents free to shoot him the moment he exits the plane? I don't believe anyone would answer "yes."
— But what then to do with him? A catch and release policy would result in this:
The report includes the story of one Saudi jihadi captured in Iraq, released, and then killed in a skirmish between U.S. forces and Taliban supporters on the Afghanistan-Pakistan border. I take it the "war" — real or metaphorical — was far from over in his mind.
Of course, the Geneva Conventions and all provisions of humanitarian law were created in a different war environment. We are now in what is called "low-intensity conflict," or "fourth generation warfare." This type of warfare presents us with a hybrid, sometimes best dealt with by traditional criminal laws, but sometimes only responsive to military responses, including detention of combatants in military custody.
And does al-Qaeda think it's involved in a criminal conspiracy or in a war? If a war, what type of war? See this and then tell me whether a criminal law model is adequate.
What I hear from the various critics of these posts is not knowledgeable discussion of the application of the actual laws and regulations governing our Uniformed Services (and they are many and detailed, trust me), or of the various treaties to which the US is a party, including the latest iteration of the Geneva Conventions. Rather, they seem to be arguing that the laws and conventions of war need to be changed, because they seem unfair or do not produce the result (trial or freedom) they want for the Gitmo Prisoners.
I would be interested in hearing any specific laws or regulations of the United States or citations to the Geneva Conventions or other treaties to which the US is a party which counter Professor Volokh's post and those individuals whose comments have supported him.
P.S. The Declaration of Independence and Constitution don't count as far as I am concerned.
Jim Rhoads (vnjagvet)
On another point, if there have been hearings, what is the status of the hearing transcripts? Classified? Free online? Available at a dolar a page at some office somewhere?
Should we change the existing laws and treaties, and implementing regulations so that those individuals who are not conforming to the laws and conventions of war (either in dress or tactics) which our troops have encountered on the battlefield, are treated to conform more to the expectations of the "unsophisticated" here and around the world than to ensure our troops safety? If so, whose hearts and minds do you think this action will win? Whose will it lose?
We only have a true dilemma if all of the following are true:
1) All the people we are talking about are legitimately captured enemy combatants;
2) All of these people are determined to attack U.S. interests;
3) There is no point at which these people will lose their determination to attack U.S. interests, notwithstanding the state of play in Afghanistan, Iraq, or anywhere else; and
4) We have absolutely no way of proving 1, 2, or 3 beyond a reasonable doubt.
I'm not convinced that all of these things are necessarily true, although I wouldn't doubt that there are some people who fall into this category. There will always be people in the world who wish us ill. I'm not sure that enables us to declare an unending state of war. There must be a better answer.
Wh7 not a happy compromise? If we do not want to jail them forever and we do not want to let them go, and we do not want to kill them, why not lop off their arms and free them? This makes them less able to be bothersome and additionally makes them easier to spot when boarding planes etc.
Drew, I think the part you're overlooking is that because they don't have a state that looks out for their interests, and they are not lawful combatants, they forfeit any protection from anyone. Someone please correct me if I am mistaken, but I believe that under international law we'd be perfectly justified, if we were so inclined, in standing every man-jack of them against a wall and shooting him for fighting out of uniform. Their position is much more akin to that of spies and saboteurs (or, in earlier times, to pirates) than it is to prisoners of war.
I have never understood the rationale behind the desire to try unlawful combatants in a war. It seems to me that those who advocate civil trials really don’t believe that we are in a war, as is evident by some of the posts here. For them, we are using the military in a fairly large scale criminal investigation. And 9/11 was simply a large crime carried out by a finite group headed by Bin Laden. The real goal should have been to arrest Bin Laden and his gang and that would have been the end of the case.
The reality on the ground, the metastizing of Islamofascism, the bombing of Bali, Madrid and London, the murder of Theo van Gogh by the ideological heirs of Bin Laden never seem to penetrate. The reality of militant Islam is simply ignored. We appear to be talking past each other. Sorry it has come to this.
Entirely appropriate for the Gitmo crew, IMO.
What is the appropriate forum to decide the questions you pose? SCOTUS? Congress? Treaties among nations? The UN?
Traditionally, it has been, in essence, the Executive Branch (Departments of War and Navy, then the DOD)with the approval of Congress, through statute (the Uniform Code Of Military Justice Title 10 U.S.C. Chapter 47) but in implimentation of treaties among nations.
The Supreme Court's role is relatively minor, inasmuch as the Constitution gives Congress and the President the power to declare and make war.
Even when the country was beset by a civil war and two world wars, it seems to me this division of powers served us pretty well. SCOTUS made a number of important decisions during wartime, but few challenged the status quo as set up by Congress and the Executive.
Are you proposing a change? How do think it might take place politically? I am doubtful Congress or the Executive will change anything, and I don't see SCOTUS making drastic changes in these times.
I would think those taken in the act of piracy would be closest to it. Their lives have been forfeit since the lawful ascertainment of their status by a duly constituted tribunal. A POW has an honorable status that at times warrants the consideration of parole. Unlawful combatants are not worthy of such consideration. Those incarcerated at Guantanamo are literally living on mercy. I find it strange that it is necessary to even mention that fact.
Illegal Combatant
The term has been around for at least 100 years and has been used in legal literature, military manuals and case law. It was introduced into US domestic law in 1942 by a United States Supreme Court decision in the case ex parte Quirin. In this case, the Supreme Court upheld the jurisdiction of a U.S. military tribunal over the trial of several German saboteurs in the US. This decision states (emphasis added and footnotes removed):
"...the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."
Imagine a Marine corporal reading these convoluted arguments. He will realize that each captured man in Afghanistan just adds to this problem.
Later, he has managed to capture a fighter who just participated in an ambush on American and Afghan forces. The fighter slowly lowers his weapon as he realizes he's caught.
The Marine, rifle pointed at the fighter's chest from five yards away, thinks it over:
1) Capture the guy. As his reward for trying to kill you and your buddies, he goes to tropical Cuba and has all the leftists in the Western world celebrating his cause and vilifying his captors (you and your buddies trying to live and to free Afghanistan of these scum) as Nazi/Soviet/Khmer Rouge/etc. thugs. The process will drag on for years.
2) Pull the trigger. Problem solved.
The fighter sneers just a bit at this moment.
Which choice would the average Marine choose? Furthermore, which choice would he be ENCOURAGED to choose by the leftists who clearly value the lives of commited Islamofascist fighters much more than those of our men and women in uniform?
Coercion for information is ok if it is deprivation of some sort (bread and water, darkness, isolation etc). Direct infliction of pain is always immoral. A child who tortures rats before killing them is depraved even if they are rats. A child who kills rats straight-away in a quick and efficient manner is acting morally.
While it is in the National Review (I know some of the commenters here might be less than impressed) I have found Mr. McCarthy's work to be pretty accurate.
After all, these people are guilty, right? They're terrorists, right? We have good reason to believe they're involved in killing Americans, right? Why the hell can't they be tried and why can't we prove it?
I think Eugene is basically right, but he doesn't quite deal with the factual problem: what if the "combatants" unlawful or otherwise are not really combatants? A lot of the battling in the U.S. courts has been over whether the U.S. has to at least give detainees the right to challenge their status, per the Geneva Conventions. The U.S. government has resisted even this basic determination. They may be right as a matter of law (I'm not sure) but as a matter of policy, surely there must be some mechanism for correcting the inevitable mistakes that may occur in the war on terrorism?
Paul Gowder,
I've read through all the comments and I can't find anyone arguing against conducting a trial of the unlawful combatants before a military tribunal. To whom are you referring in your comment?
Okay, let me indulge you a bit. Just as a pragmatic matter, it would be horrendously detrimental to our armed forces to do so. So, for every one of these thousands that we capture (the true number that has passed through numbers in the hundreds of thousands, but most are not detained and are released quickly) and hold at one of the several camps, we then have to have the soldiers in the units that captured him/her come and testify before a court? Are you kidding me? You can say goodbye to our armed forces efficiency and morale. The enormous scope of the logistics that would be required when reduce our armed forces frontline fighting ability to nothing.
If anything, you would never anyone captured, the soldier would just sooner blast the guy to pieces than have to fly back to the states to testify on what he was doing.
The idea is just completely impractical, especially because of the number of people held by the US.
I'll leave the legal and moral issues to others much smarter than myself.
Thanks much. Like I suspected, however, the defintion of enemy combatant you provided does not distinguish between the two types I identified in my post, for which I think there are strong moral and prudential arguments for treating differently.
Rick: See Humble Law Student's posts, plus JohnAnnArbor, plus Moneyrunner, plus Mark Delles etc. etc. etc. -- all of whom appear to be rather dramatically against trials and several of whom appear to be in favor of summary field executions.
I am not a lawyer either, but as I understand it, secret military tribunals are real military courts under the Geneva conventions. Why the secrecy? The obvious need for security of information. Sorry. Secrecy is requires. Loose lips sink ships. Your position is a deadly one.
Please try to frame your solutions in a manner that will help the military, not harm it - but be aware that if you do so, you will probably end up duplicating most of their work and deciding that Gitmo is rather well run.
Everybody acts as though this stuff is easy, including me. I keep reminding myself it's not.
Yours,
Wince
We can make reasonable pragmatic compromises to protect the safety of our soldiers, but we have to remember that our leaders chose this war, our leaders sent the troops there, and our leaders can't use their own choices and their own international adventurism as a "necessity" excuse justifying their ignorance of the basic structures of justice and civil society. How can our government claim that their hands are forced into these extrajudicial detentions when it's their own damn joke non-war that caused it in the first place, at least in Iraq?
It makes me absolutely ill that our president can play G.I. Joe with real people and use his childish misbehavior as an excuse to loose a tsunami of oppression on the people of the countries he conquers. He sends the army to conquer some foreign country, leaves the troops there to act as basically an auxiliary police force when the new puppet government is put in place, and then handles the entire populace of that country as if they're all enemy soldiers. Throw a rock at a tank? Indefinite detention!! Be present in the home of an insurgent who has a hidden weapons cache? Indefinite detention! It's barbaric. And don't even hide behind this enemy combatant nonsense. Read this story, instead. "Coalition military intelligence officials estimated that 70% to 90% of prisoners detained in Iraq since the war began last year 'had been arrested by mistake,' according to a confidential Red Cross report given to the Bush administration earlier this year."
If they don't want to take the risk to our soldiers of giving the people -- many of whom may be entirely innocent -- who they capture anything close to legitimate legal process, they have an easy solution. Withdraw the army. Stop spending our peoples' blood, our tax dollars, and the lives of countless innocents abroad on this insane campaign of conquest-under-false-pretenses. Just stop it.
It appears that you have some very strong feelings concerning whether or not we should be in Iraq/Afghanistan or not. That is a moot point; the US and coalition forces are already there. Also, detainees have already been taken.
What you have failed to state is the fact that, yes, there are a lot of prisoners detained, some of whom are detained by mistake. However, those we have no reason to keep are released most expediently; going so far as to return them to their village. Your argument does not mention this extremely important fact. Just as here in the states, the police (under reasonable suspicion) can arrest someone, but after questioning, release that individual. That is roughly, almost the same process with battlefield detainees just as I stated earlier in this discussion.
Numbers and percentages are important. But what's even more important is their context. That 70% to 90% number may indeed be the number of people who are wrongly detained. But more importantly, what's the percentage of people who are DEFINITELY detained in Guantanamo?
The US and coalition forces are doing an excellent job in an extremely challenging environment. If the US followed the exact rule of law, these illegal combatants would find themselves summarily executed for violating the laws of war. So please relax and take a breath. We are in Iraq/Afghanistan. Discuss Prof Volokh's ideas with that in mind.
Anonymous Reader
Well, I don't really have a dog in this fight, but the statement above ignores the whole point of the conversation. Is there a well defined process (something in writing) which gets carried out to determine which captives are released and which are detained? Or is it an ad-hoc process, dependent upon the whim of those with the power and authority to do the detaining?
The intermittent diatribes about how "liberals care more about the rights of terrorists than our own soldiers" are childish and add nothing to the discussion. The very ISSUE raised by Prof. Volokh is to what extent these "enemy combatants" are entitled to rights. If the question related to the scope of habeas corpus review available to convicted murderers, would anyone whose answer was something other than "none" be a liberal who cares more about the rights of murderers than innocent citizens? It's not treasonous, as far as I'm aware, to attempt to analyze the question presented.
Jim Rhoads asks a good question, above. Who is supposed to make these determinations as to whether we are at war, how we should handle people captured in the course of the war, etc? Well, historically the courts have pretty much deferred to the Executive in the conduct of war, and I wouldn't expect that to change. In the Hamdi case, for example, it's notable that the Court only set the outer parameters for the type of "enemy combatant hearings" these U.S. citizens were entitled to. Beyond those outer parameters, it's up to the Executive and the military.
The real question, though, is when does the war end? If we define it as a "War on Terror" that only ends when there is no more terrorism in the world, obviously that war never ends. As the Supreme Court noted in Holmes v. U.S., that Court has used several different tests for determining when a "war" ends, based upon both the nature of the conflict and the nature of the war power sought to be exercised. In other words, the law remains flexible.
Hamdi made it clear that "enemy combatants" captured in Afghanistan could be held for the duration of hostilities in Afghanistan, and prudently declined to address the question of what happens afterwards. I think that while fighting continues in Afghanistan and Iraq, it is unwise for our legal system to attempt to determine what happens afterwards. But hypothetically, if those hostilities end, and we continue to assert the right to imprison individuals indefinitely because a global "war on terror" is ongoing and these individuals may take up arms against us if released, we may have to consider whether it makes sense to require some governmental showing to that effect.
Until the current hostilities end, there's no need to address this. But I think we should be careful before we blithely accept the concept of a war, complete with exceptional war powers, that never ends.
The US and coalition forces are doing an excellent job in an extremely challenging environment. If the US followed the exact rule of law, these illegal combatants would find themselves summarily executed for violating the laws of war. So please relax and take a breath. We are in Iraq/Afghanistan. Discuss Prof Volokh's ideas with that in mind.
No. We can't take the fact of the legal and moral culpability of our leaders in starting a war out of the question of the legal and moral way that they can wage it. A just war may justify certain compromises on our values in order to carry it out. An unjust war does not justify those compromises.
Your contention amounts to giving anyone who wants to start a war the power to do so as a fait accompli and then abandon the principles on which our society is founded based on that war. Any time they feel like rounding some folks up without legal process, hey, time to call it a war.
However, let us remember a key distinction: With the exception of unusual cases like Hamdi involving U.S. citizens, we are not talking about the Executive Branch's mastery over the INTERNAL affairs of the country. We are talking about non-citizens captured overseas in connection with hostilities. While you can argue that the war was unjust, that many detainees were not engaging in acts of war, etc., you can't get away from the principle that the Executive has the majority of the discretion in this scenario, at least until the day the troops return home. The President's control over war and foreign affairs has been consistently reaffirmed.
Ahh, so your true colors emerge. Its unfortunate that many such as yourself seem unable to calmly assess our military and administration's actions and goals because you are too blinded by your reflexive anti-Bush hatred (bordering pathological in your case it seems)
However, I will now calmly dismember your statements on their merits or lack thereof.
Paul Growder wrote, "here's the thing. I don't think we can justify the utter abandonment of the rule of law, our ideals of justice, etc. under the rubric of "military necessity" in this war. At least not in Iraq. No necessity justification can support the abandonment of the rule of law in Iraq, because the presense of our soldiers in Iraq itself is unnecessary!"
Seriously, who would disagree with that statement in regards to "utter abandoning the rule of law." Your problem in understanding is that you (for some reason) refuse to acknowledge that
Your statement is meaningless, because what you express, while it may be your kneejerk emotional response, is hardly a fair represenation of reality! We have already discussed how the rules are being followed, and others including myself have shown that arguments against our current detention policies are not founded on current law, merely certain people's personal wishes.
Also, your argument is essentially a bait and switch. You argue that we should follow the rules of war, espcially in regards to enemy combatants. As previously shown, we do. However, then you argue that the rules we should follow aren't adequate and only until we follow some "other rules" not explicated anywhere (just general rather amorphous ideas) will we be acting properly. Well, nice try, but it won't work. It is perfectly legitimate to argue that the rules should be changed, but it is intellectually irresponsible to make such accusations that we don't follow the rule of law.
Paul wrote again, "And don't even hide behind this enemy combatant nonsense. Read this story, instead. "Coalition military intelligence officials estimated that 70% to 90% of prisoners detained in Iraq since the war began last year 'had been arrested by mistake,' according to a confidential Red Cross report given to the Bush administration earlier this year."
Oh come now. I read that article and it is the same meaningless nonsense and here is why. The US military has detained several hundred thousand over the past few years in Iraq and Afghanistan. However, most are released almost immediately! Anytime, an individual is found/captured in a compromising situation they are apprehended to determine if they are a threat or not. However, the vast majority (several hundred thousand) are released very quickly or immediately. You only have the relative few that are found to be threats from the military tribunal that are kept locked up in Gitmo etc.. So, you little statistic is worthless. How many American citizens are questioned at police stations and released quickly? Its the same basic principle.
So there is the effective dismemberment of the two substantial arguments in your post. The rest is really outside of the scope of this discussion. But, it is quite helpful to see understand the pathology behind the arguments.
One more thing, Paul you say in an earlier post, "See Humble Law Student's posts, plus JohnAnnArbor, plus Moneyrunner, plus Mark Delles etc. etc. etc. -- all of whom appear to be rather dramatically against trials and several of whom appear to be in favor of summary field executions."
Okay, maybe we shouldn't argue, because you seem to lack basic reading comprehension. Please, show me where I am "dramatically against trials"? I argue against civil trials for unlawful combatants, but I argue strongly in favor of military tribunals which, until your sweeping presumptuous pronouncements, have always been considered trials. Unless, this is your old bait and switch which you seem to rely on.
Doesn't the contention in this thread pretty much revolve around these 'exceptions'? Aren't we attacking straw men if we assume otherwise? I don't think anyone is arguing we should unconditionally release obviously guilty individuals.
How about here?
I think a reasonable person could read those sentances and conclude that while you do mention military tribunals in an offhand manner, you are mostly against trying these individuals. I don't think it's clear that the a resonable reader would come to the conclusion that you are strongly in favor of military tribunals.
You make a great point. I didn't precise enough language. From a legal standpoint, military tribunals are trials. However, I (in that point you quoted) used trials as only to mean civil trials. That was my bad.
In my defense, I did say this earlier in that same post,
The last part is key. Civil trials aren't required, but military ones are. Just to clarify, I am STRONGLY in favor of military trials in the form of tribunals.
I apologize for not making sufficiently accurate distinctions.
God knows one needs to...
Just to further refine things, what do you think of the Jose Padilla situation? Here's my (not necessarily 100% accurate) take on the case. He is an American citizen, arrested peacefully (no combat was taking place) on American soil. He was subsequently declared an unlawful combatant on the authorization of a "nation security letter" issued by the president. He was then transfered from civilan to military custody, where he remains under indefinite detention, without being charged with a crime. (any corrections needed?) Do you believe that this is 100% proper and legal? Would it be better if the unlawful combatant status was confered by a military tribunal instead of the president? Is there any role for the civilan courts to oversee cases like this?
I was hoping that you wouldn't bring that up. Because, honestly, it isn't a situation that I have been able to firmly decide on. While, I am generally familiar with the Geneva convention protocols and US policy etc... This is a hard case, and I think beyond my pay grade.
However, let me put a few thoughts together. (Its unfair for me to get off too easily)
The fact that he was an American citizen is the most troublesome for me, as for many others I suspect. I believe your run down of the events surrounding him is fairly accurate, however, if anyone has any additional information I would welcome it (I feel too lazy right now to go digging)
I don't believe the Geneva protocols make a distinction in regards to a person's citizenship (someone check me on that?) in naming a person an unlawful enemy combatant. So, if my underst