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.