Tuesday, January 27, 2009

War Isn't A Crime

President Obama's decision to close the Guantánamo Bay detention facility further confuses criminal law with the laws of war--do we expect our soldiers to give "Miranda warnings" to captured terrorists in Afghanistan? The decision--essentially a rejection of "the war on terror"--also exhibits a fundamental misunderstanding of warfare, as Andrew McCarthy says on the NY Times' Room For Debate blog:
We are dealing with two ugly realities that mainstream opinion wants to wish away: (a) we are, as President Obama has taken to repeating, "a nation at war," and (b) the enemy, which means Americans mortal harm, is animated by an ideology firmly rooted in fundamentalist Islam.

Unpleasant fact (a) has a corollary: you cannot convert what is in essence a national-security challenge into a mere criminal-justice issue. That is, it never has been and it never will be the case that every enemy operative in a war is going to be a person we will have sufficient evidence to convict in court. In war, it is necessary to detain people who are suspected of being enemy operatives, not always provable enemy operatives in a courtroom.

The objective in peacetime is to maximize due process and put all burdens of proof on the government before liberty and privacy are infringed -- we’d rather see government lose than an innocent be done an injustice. By contrast, the objective in wartime is to defeat the enemy -- which calls for recognition that some injustices will be done for the greater good of safeguarding the nation. The excruciating weight of these injustices is why we resist warfare if we can do so responsibly; but once in it, our security requires that we make winning it our priority.
Contrary to Norm Geras, "innocent until proven guilty" isn't the rule of the law of war. The terrorists were sent to Git'mo primarily so we could learn more about Al Qaeda, not to be prosecuted.

Certainly, releasing all detainees would be a disaster. As Matthew Waxman says, "The big question is what to do with any detainees who are too dangerous or heinous to send home but who cannot be effectively prosecuted." And moving some detainees to Kansas is crazy. Our Arab allies may have a better understanding of the issue than the President:
U.S. Sen. Sam Brownback, a Kansas Republican, said he had been told by officials from Muslim countries that they would no longer send officers to the Army Command and General Staff College if the detainees came to Fort Leavenworth.

“We’ve already heard from students from Egypt, Jordan and Saudi Arabia that they will leave, or be pulled by their governments, if the detainees from Guantanamo are moved there,” Brownback said. "It’s where these relationships are built with foreign officers, particularly in the Islamic world. This really hurts us."
See also Stephanie Hessler's outline of the options for dealing with the Git'mo detainees in the current Weekly Standard.

(via Campaign Spot, reader Doug J.)


A_Nonny_Mouse said...

Actually, if our soldiers have any sense, they will take no more prisoners. After all, deaths of operatives on the battlefield (even if they're not "regulation soldiers") is to be expected.

We certainly don't want to leave our servicemen subject to the whims of some bleeding-heart international human-rights court eager to declare the USA has violated the "civil rights" of terrorists (who, by the way, don't have such "rights" even in their home countries)...

Geoffrey Britain said...

The problem with that Mouse is that if our soldiers start executing every captured terrorist or adopt a policy of 'take no prisoners', they violate the law of war which requires that enemies be "granted quarter" -- meaning prisoners must be taken if they surrender.

And if they violate, in a fundamental way, the laws of war they really do open themselves up to war crimes charges.

That is why Obama and the left's inclination to treat the WoT as a criminal matter, one for the civilian criminal-justice system to resolve, while continuing to use our troops in places like Afghanistan is such a potentially serious matter.

It's also worth keeping in mind that there is great hatred for the military on the left and, the possibility that this is intentional cannot be discounted.

Of course, if Obama's initiates these policies and as the result of following these orders our troops are found guilty of war crimes...that means Obama, the CIC, becomes guilty of war crimes.

Carl said...

Dead men tell no tales. As a practical matter, Mouse is right--if the alternative is not only letting the terrorist go plus a later suit for civil rights violations, a lot of terrorists are going to wind up dead. And that's why GB is correct, of course: treating the WoT as a criminal matter is serious and with unintended consequences that the left hasn't yet understood.