Sunday, September 17, 2006

The Detainee questions

First, what are they? There seems to be considerable debate on the blogs as to what exactly we classify the detainees, as that is relevant to how we should treat them.

On November 13, 2001, President Bush issued Military Order Number One, allowing the United States military to capture and detain suspected terrorists, "to be tried for violations of the laws of war and other applicable laws by military tribunals." Further, Military Order Number One specifies in Section 3 that "an individual subject to this order shall be ... (b) TREATED HUMANELY..." (emphasis added)

So, the detainees were captured and are being held pursuant to the President's authority as Commander in Chief of the Armed Forces of the United States. They are subject to military commissions for trial under the laws of war. That much is certain.

Now, how do we classify the detainees? Are they prisoners of war? To determine the answer to this question, we must look at the Geneva Conventions, an international treaty to which we are party.

The Third Geneva Convention deals with the Geneva Convention relative to Prisoners of War. This would be the place to start when discussing prisoners of an entity against whom we are fighting.

Article 2 of the Third Geneva Convention states: "Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof."

There can be no doubt that the United States is a party to the Convention. There can be, however, some doubt as to whether or not the accused terrorists are party. This provision, Article 2, indicates that when one party is a party to the convention, both parties are bound by it.

Why does this apply? Because the Geneva Conventions are a treaty, an international agreement. We signed this agreement subject to the Constitution, and the Constitution's Supremacy Clause demands that this be The Supreme Law of the Land.

If that is the case, while we've determined that we are bound by the Geneva Convention, we must determine whether or not the Convention applies to the detainees. Article Five of the Third Geneva Convention:

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

So, ESPECIALLY if we're unsure what these individuals are, we are obliged to afford them the protections enumerated in the Geneva Conventions, until such time as their status becomes clear.

Article 3 of the Third Geneva Convention dictates how captured individuals are to be treated, and is very similar in language to what Military Order Number One states for treatment of the captured suspects. Why does this matter? Because there has been some significant debate on how to classify these detainees because it's relevant to how we treat them. If they are prisoners of war, then we must treat them as such, which would mean that we are precluded from engaging in such tactics as waterboarding, or sleep deprivation, or other behavior that is or could be classified as torture. If they aren't, then there's no international law that bars such treatment.

The administration suggests that these individuals are not prisoners of war, and thus the Geneva Conventions don't apply to their detention. However, this would seem to reek of hypocrisy, as they were captured pursuant to the laws of war, as evidenced by the President's issuance of the Military Order to authorize their detention. As such, these individuals should have the same treatment as any other prisoner of war, and should be afforded the protections of the same. This means that they should not be denied Habeas relief; they should be authorized to see the evidence against them, and they should be able to know that they will not be tortured.

If, in spite of all that, the thought in your mind remains: "But they're going to torture our men and women," then I would ask first, how does that justify our doing the same to them? Are we not supposed to be better than those who would do such things? Didn't the president state over and over again that we don't torture? And second, I would ask, do you really want to take your behavioral lead from these terrorists? Are they the ones you want as our nation's role model?

The president wants to pass laws that would amend our interpretation of the Geneva Conventions. This is in response to the Court's ruling in Hamdan v. Rumsfeld. In Hamdan, the Court ruled essentially what I covered above - that you have to take the tail with the mule. If you are going to capture these individuals pursuant to the laws of war, then you have to treat them as prisoners of war. The president can't pick and choose what parts of the law he wants to obey, despite his impressive record of signing statements that would indicate he thinks otherwise. I think this is a dangerous thing. We pride ourselves as being the moral compass for the rest of the world to follow. Indeed, we invaded Iraq in part to establish a democracy in similar style to our own. If we start changing the rules as they apply to us, that makes it that much easier for other nations to do the same, and it costs us a bit of our international goodwill, something we need to be preserving as much as possible in this day and age.


Michelle said...

I think its gone past being dangerous, you only have to look at the David Hicks debacle to see that. Being held for over 2 years without charge, then the Military Order is introduced so they charge him.....7 years later his still waiting for his day in court!!!
Our PM is a weak little *&*& who just so happens to be Georges buddy, so he refuses to get involved....its deplorable.

Hannelie said...

Yes, I agree with you Michelle on that one. Imagine that, introduce a MO after your in jail and then say here's the charge. So, when's the day in court?
One can only shake your head!
Interesting post Steve, I love these kind of info's.! said...


I don't disagree with you on most of your points and you're on the right track with your reasoning. However, the detainees are not POWs. Look to Common Article 2 of any of the Geneva Conventions. It is the threshold for POW status & whether or not the rest of the Geneva Convention will apply. First, it has to be an international armed conflict. If the detainees are al-Qaeda (or from some other non-state entity), then it's not an "international armed conflict" because this only occurs between two or more parties to the Convention & only states can be parties - not individuals & not transnational organizations. Then, in order to be POWs, they have to be the "right type of person," meaning that they are commanded by a person responsible for subordinates, wear a fixed sign recognizable at a distance, carry arms openly and conduct operations in accordance with the laws & customs of war. If they meet these requirements, then they are POWs and the rest of the Convention applies, meaning that they get combatant immunity (aren't prosecuted for CL crimes like murder) and are entitled to certain other provisions outlined in the treaty.

The debate is whether or not Common Article 3 applies - an armed conflict not of an international character occurring in the territory of one of the parties, aka an "noninternational armed conflict." To put it very simply the Bush Administration had been arguing that in the "war on terra" this article doesn't apply either because the "war" isn't a noninternational armed conflict (when the Conventions were written, this Article was designed with civil wars in mind). If it's a nonint'l AC, then humane treatment is the standard & certain actions are prohibited, including CID treatment, torture, no sentencing/executions w/o "judgment pronounced by a regularly constituted court, affording judicial guarantees which are recognized as indispensible by civilized peoples," etc. It seems the USSC (and the rest of the civilized world, for that matter) disagreed with the Bush Administration & they're having to capitulate. Too bad, so sad.

The real problem is not that we should get to stick bamboo under the fingernails of these men or keep them in a kennel covered in their own feces because it's the "war on terra" and no rules apply. Keep in mind that our soldiers are involved in this conflict, too & if the Geneva Conventions don't apply to them, then it doesn't apply to us either. That means that our captured soldiers don't get POW status & therefore don't get combatant immunity & they can potentially be tried for murder in another country. And as a former military, I bet you can appreciate the implications of that.

I know there's more to it, but I'm tired. Anyone have anything to add?

Steve said...

So you're saying I misstated my argument? Rather than looking to Commmon Article 2, I should have been looking to Common Article 3?

The crux of my position is substantially the same, but rather than debating whether or not these individuals warrant POW status or not (and I think it's still arguable that they do based on the plain language of common article 2, though it would appear I'm in the minority there), I should be debating whether or not common article 3 applies.

In this instance, then, the argument is that because the President invoked the law of war with his Military Order number 1, which specified, among other things, that the detainees were to be treated humanely, that the United States is obligated to obey the law of war when holding the detainees, as per common article 3. A result of this is that the President is authorized to try these detainees in military commissions which are similar, though not the same to military courts-martials. The president can make the rules for the military commissions, but typically they run similar to the courts-martials in effect.

As I said, I think there's still reason to believe that these detainees are entitled to POW treatment. Common Article 2 says: "Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof." and Common Article 5 states that if there's any doubt as to one's status as a POW, then they should be treated as such until their status is detemrined by a competent tribunal. Even the Court determined this argument was preservable in Hamdan (i.e. it's still an open debate).! said...

Steve, from the plain language of CA2, they're not POWs because non-state entities can't be parties to the treaty. "High Contracting Party" means the nations that signed & ratified the Convention. So, according to the Geneva Convention, not an Int'l Armed Conflict = not a POW. But, like I said, the ramifications are that our soldiers are also not POWs in this "war."

However, if a "detainee" is a member of the Taliban, captured in the armed conflict in Afghanistan, then they are a POW because that is an International Armed Conflict. The Bushies tried to wiggle out of this one, too, but they lost that debate.

This is all the fun stuff I'm currently learning in Law of Armed Conflict. You should consider taking Corn's class next semester. I think you'd really like it!