Thursday, June 21, 2007

Detainee Rights, Part II


I've been debating Paul at Lifelike Pundits about the legal rights of Gitmo detainees, addressed here in detail last Sunday. On June 13th, Paul asserted:
Generally speaking, the Quirin case, Guantanamo, the Tokyo trials against Japanese Generals and even Nuremburg are problematic for one reason .. [they] only apply to the losers of a war. The winners get off.
His June 20th follow-up said:
The only two cases ( to come out to military commissions were thrown out because the men were found by the CSRT to be ‘enemy combatants’, not ‘illegal enemy combatants’.

No appeals court has been established for the government to appeal to.
Therefore, the commissions aren’t being used, if only because there are no ‘illegal enemy combatants’ at Guantanamo, according to the CSRTs.

Also, your suggestion that the men at Guantanamo face the same procedures and have the same rights as U.S. soldiers is incorrect.

Even if it was, the question is properly stated "why isn’t it good enough for men accused of membership in Al Qaeda".

I’ve said it before, I’ll say it again. Several men have been released who aren’t, and never were, members of Al Queda. They weren’t illegal, enemies, or combatants. Oh for three.
My response:
  1. It is not true that the laws of war apply only (or even unfairly) to the losing side. Contrary to your claim, the laws of war aren't based on "victor's justice," they're founded on reciprocity and reprisal--and few rights for habitual violators. See Hugo Grotius, "De jure belli et pacis," Book II, Chapter 11 (mutual obligations), Book II, Chapter 3 (reprisals), Book II, Chapter 20, Section XL (pirates) (1625). In particular, an important incentive for belligerents to be just is to encourage their enemy to do so as well; and when a war crime is committed, the punishment can include "acts of retaliation in the form of conduct which would otherwise be unlawful, resorted to by one belligerent against enemy personnel or property for acts of warfare committed by the other belligerent in violation of the law of war, for the purpose of enforcing future compliance with the recognized rules of civilized warfare."

    Consider five examples: Germany, Japan and the United States in World War II, and the U.S. and North Vietnam in the Vietnam war. The first two lost, as did the fourth, yet they treated captives quite differently. With some horrifying exceptions, the Nazis treated American and British on the battlefield and as POWs humanely, as did America with German POWs. The mistreatment of allied POWs by the Japanese is well documented.

    Of course, the Nazis had no aversion to genocide and did not treat Soviet captives similarly. But Germany and America chose to encourage their enemy to be similarly scrupulous.

    In Vietnam, the U.S. respected POW rights, extending them even to Viet Cong "irregulars". The North Vietnamese, by contrast, chose not to honor the treaty, and tortured and otherwise mistreated American and Australian captives. During that war, the NVA and VC routinely used, hid among and killed civilians; the U.S. prosecuted and convicted Lt. Calley for war crimes.

    The common thread isn't victory--it's decency. Saddam wasn't decent. Now, the Gitmo detainees are healthier than when captured, while the terrorists torture and behead soldiers and civilians, deliberately murdering unarmed innocents. 16th-century jurist Alberico Gentili said: "Pirates are common enemies, and they are attacked with impunity by all, because they are without the pale of the law. They are scorners of the law of nations; hence they find no protection in that law." Terrorists are today's pirates; our behavior toward captives is neither victors justice nor revenge.

  2. As you say, the two Commission rulings referenced in the BBC article were decided on a narrow technicality: the two detainees were designated "enemy combatants" but not "unlawful enemy combatants," thus depriving the Military Commission of jurisdiction under MCA Section 948d(b). Contrary to your suggestion, the Commissions did not decide "there are no ‘illegal enemy combatants’ at Guantanamo"--if for no other reason than both Commissions could consider only the detainees before them (your implication that a Commission could go beyond an individual case actually would deny due process). In any event, the two detainees can be re-charged, thereby curing the defect.

  3. The Article III court for appealing CSRT and commission rulings under the MCA is established by statute, see 10 U.S.C. § 950g, and upheld by the D.C. Circuit, see Boudemiene v. Bush, No. 05-5062, slip op. at 12 (D.C. Cir. Feb. 20, 2007). The yet-to-be-established "court" referred to in the WaPo article is the still-within-the-military "Court of Military Commission Review" called for in MCA Section 950f that can review Commission decisions, not CSRT findings. I agree that the review body should have been formalized already; it now will be as soon as possible. This won't take long; the CMCR "shall be composed of not less than three appellate military judges," and thus will be constituted from current soldiers meeting the qualifications of MCA Section 948j.

    To date, there have been no convictions by an MCA Commission--as you say, the two decisions in early June were the first MCA Commission rulings. So, most importantly, the absence if this intermediate review body hasn't created any injustice.

  4. I never said Gitmo detainees were subject to "the same procedures and have the same rights as U.S. soldiers." I referred only to "Similarly constituted tribunals." The similarity is that both bodies are part of the military system of justice, not civilian justice. The former authority derives from the Constitution: both Article I, Section 8, clauses 14 & 16 and Article II, Section 2, clause 1. The Supreme Court has upheld the distinction between military and civil law in Ex Parte Vallandigham, 68 U.S. 243, 251 (1863):
    Nor is a military commission a court within the meaning of the 14th section of the Judiciary Act of 1789. That act is denominated to be one to establish the judicial courts of the United States, and the 14th section declares that all the 'before- mentioned courts' of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, agreeably to the principles and usages of law. The words in the section, 'the before-mentioned' courts, can only have reference to such courts as were established in the preceding part of the act, and excludes the idea that a court of military commission can be one of them.
    The same case acknowledged clear differences between offences subject to courts-martial -- such as those employed in the Abu Ghraib prosecutions I referenced -- and military commissions, id. at 249:
    [M]ilitary jurisdiction is of two kinds. First, that which is conferred and defined by statute; second, that which is derived from the common law of war. 'Military offences, under the statute, must be tried in the manner therein directed; but military offences, which do not come within the statute, must be tried and punished under the common law of war.
  5. Your final point confuses me. Surely, the fact that we released detainees who were not "illegal, enemies, or combatants" underscores the justice of our system. In any event, as detailed in Sunday's post (see also here and here), neither the Constitution nor the Geneva Conventions give unlawful combatants rights beyond a status hearing. The CSRTs do so, under established rules of procedure that afford detainees the minimal rights they're due.

    To the extent you argue invalidity because we have detained some non-citizens who, upon investigation, were not terrorists, what would you have the U.S. do? America and its allies are battling radical Islamic terror in hundreds of fronts all over the world. We seek security and strive for justice. Once captured, we investigate each detainee's status--but we could hardly make such a status determination a condition precedent to capture. And, though it would be an advance were the American legal regime global, the Constitution applies only to those subject to U.S. sovereignty--which excludes aliens subdued outside the United States, whether "unlawful" or "combatants" or neither.
Conclusion: We live, and fight, in the real world, not some academic Acadia. We didn't choose the present asymetric warfare. But we're trying to preserve and extend Western Civ; our enemy desires its destruction using deadly tactics that give no quarter.

This one's easy


Freedomnow said...

I have a solution for Paul. Every democracy can refrain from war and never bring any fascist regime to justice again. That way we will never have to worry about imposing a “Victor’s Justice” on any warmongering genocidal regime.

We should also never detain any enemy combatants that we have reason to believe to be engaged in warfare against our country. The danger to their civil rights is too severe.

It’s too bad that we couldn’t retroactively implement such tactics. Then Imperial Japan, Nazi Germany, North Vietnam, North Korea, Serbia and all of our former enemies would have seen the wisdom and willingly follow suit.

Hmmm… Then again you can’t have a war crime without a war and you can’t bring a war criminal to justice without fighting them.

@nooil4pacifists said...


Agreed. The terms "unlawful combatant" and "war criminal" are nearly synonymous, yet the left loves the former and equates the latter with President Bush. What ever else it might be, such an approach isn't "liberal."

Anonymous said...

1. You point is persuasive. It would be more so had the northern alliance been treated with the same thirst for justice as the taliban. But since we have been the winners of late, and we are on the side of decency, it's difficult to argue the point you make.

2. I should have been clearer. The CSRTs didn't make a finding that the two cases presented to Commissions thus far are "illegal enemy combatants". From the articles I linked, it appears that the CSRTs made the same finding (enemy combatants) in all the cases awaiting determination by the Commissions.

The question follows: why did the CSRTs make the determination to describe the men as "enemy combatants", not "illegal enemy combatants"?

I guess that someone (the prosecutors) may have felt the CSRTs wouldn't find the men were "Illegal" on the evidence they had available, and that the Commisions would accept a CSRT finding of "enemy combatant" as equivalent to "illegal EC".


But if I'm not, then what happens to the men who can't be found to be "illegal ECs"?

I dispute that this is a
technicality. Geneva Convention protects apply to all enemy combatants not found to be "illegal". Far from being a technicality, it is the entire point.

Anonymous said...

3. Further reading shows the court has now been established, and the decision by the Commission to refuse to try "enemy combatants" not found to be "illegal" is going to be appealed.

4. "What's good for the goose is good for the gander" or whatever you said I took as modifying your earlier "simliar" to "basically the same". Sorry if that's not what you meant.

5. My final point is that it might be better to treat the men as "enemy combatants" under Geneva Convention protections, while holding them until the CSRTs determine which are "illegal ECs". That way, we won't hold legitimate combatants, be thought of as a pariah around the world (which DOES affect our safety, deny it though many conservatives will), or waste time interrogating dead ends.

You say detainees are due "minimal rights". This is only true for illegal combatants. Until they are found as such, they ought to remain entitled to the protections the Geneva Conventions (not the Constitution) grants them.

@nooil4pacifists said...


I'm glad you were (partially) persuaded. But two points in rebuttal:

1) I agree that the "Geneva Convention protects apply to all enemy combatants not found to be 'illegal.'" But the two detainees whose cases were dismissed in early June were not found not to be illegal. The prosecutors simply failed to charge them with being illegal, an oversight that will be corrected.

2) You argue "that it might be better to treat the men as 'enemy combatants' under Geneva Convention protections, while holding them until the CSRTs determine which are 'illegal ECs'. That way, we won't hold legitimate combatants, be thought of as a pariah around the world." We could, of course, do so. But we don't have to--remember, that Geneva IV, Article V allows a captive to be denied the rights of a civilian merely when "under definite suspicion of activity hostile to the security of the Occupying Power." Your approach reverses this process. I'm relatively indifferent to being viewed as a "pariah" by peoples, or nations, that don't know or ignore international law. Especially those who refuse to condemn the terrorists who unquestionably violate international law in the most brutal fashion possible--the killing of unarmed innocents and the beheading of soldiers.